{"document_id": "1973_3_1005_1015_EN", "year": 1973, "text": "COMMISSIONER OF SALES-TAX, MADHYA PRADESH\n\nM/S. H.M. ESUFALI, H. M. ABDULALI, SIYAGANJ.-\n\nINDORE\n\nApril 18, 1973 [K. s. HEGDE AND H. R. KHANNA, JJ.]\n\nMadhya l'radsh SG!ks T~ A.ct a. 19-Reassess~IJt of est:dped turnover whether C{JIJ be nlizde on barfs of 'best Judgl'lti1J(-'Best }lldgrMnf what is-Estimate of turnover in 'best judgmenf assessmnt-lnter\n\nference by court when justified.\n\nThe asseS8ee was a deater in Iron and Steel in Madhya . Pradesh.\n\nThe Sales Tax Officer m making the original as!lelllDent for the. period\n\nNovember I, 1959 to October 20, 1960 accepted the gr018 turnover disclosed by the 'IISsesaee's accounts. Later the Flying Squii(J inspeckd the :business premises of the 9ssessee and found . a bill 6ook for the period September 1, 1960 to September 19, 1960. The bill book shod that the assessee had dected sales of iron and steel during that period ot the value of Rs. 31,171.28 P. Those sales had not been entered in the books of aunt maintained by the essessee. On the basis of the lofurmation provided by the said bill book the Sales Tax Officer initiated proceedings under s. 19( 1) of the Madhya Pradesh General\n\nSales Tax Act 1958 as elso under the Central Sales Tax\n\nA~ 1956 against the assessee, After. hearing the assessee he made teassessments on best judgment basis and in estimating the asse8See's turnover took consideration the fact that the assessee had dealings outside his accounts of the value of Rs. 31.171.28 P. during a od of 19 days.\n\nAfter the disposal of appeals filed by the assessee under the Act a refetenoe was made to the High Court. lntr alia the High Court held that the estimate. of taxable turnover under the local Act and the Central\n\nAct made by the assessing authority for the period from November 1, 1959' to October 20, 1960 on the basis of Rs. 31,171.28 P as the eactp ed turnover for a _period of 19 days was illegal and unjustified. According to the High Court the only moved escapement was Rs. 31,171.28 11ie penalty imposed on the assessee in respect of the tumoveJ under the State Act was also set aside by the High Court. In appeal by the Revenue,\n\nHElD: (i) The distinction between a 'best judgment' assesiment and assessment based on accounts submitted by an assessee must be borne in mind.\n\nSometime there may be innocent or trivial mistakes in the accounts maintained by the assessee. There may be even certain uniBtended or unimportant omissions in those accounts, but yet the accounts may be accepted as genuine and substantialJy corr.ect. In such cases, the assessments are made on the basis of the accounts maintained even thoqh the assessing officer may add back to the account price of items that might have been omitted to be included'- in the accounts. In such •\n\ncase, the assessment made is not a 'best-judgment' assessment. It is pr\"unarity mae on the basis of the aunts maintained by the UMIIOe.\n\nBut when the assessing officer comes . to the conclusion that no reliaDce CBD be placed on the accounts maintained by the asseaaee, he pfoceede\n\nto a8aess the assesaee on the basis of his 'beat-judgment'. lo d~ .0, .he. may take such asaiatanoe as the assessee's accounts mav atrord, he may also rely on other information& gathered by .him u well u on tbe\n\nsurrounding circumstances of the case: 'The assessment made on the'\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C.R.\n\nbasis of assessee's accounts and those made on 'best-judiiDcnt' buis arc totally different types of assessments. [1009 G]\n\nIn the present case it was proved as well as admitted that the asasee'a dealings outside his accounts durini a period of 19 days were of the nature of Rs. 31, 171. 28. From this circumst11nce it was open to the Salestax Officer to infer that the assesseee had large scale dealiPS~ outside his accounts. It was obvious that he was maintainina f'lbe accounu to evade payment of sales-tax. In such a situation it wu not possible for .the Sates-tax Officer to find out precisely the turnowr euppressed. He could only make an est'imate of the suppressed tunaover on the b11is of the material before him. So long aa the e1timate made by him wa• not arbitrary •nd has nexus with faets discovered, the same could not be queationed. The Hiah Court was wrona in usumini that the assessina authority must have material before it to prove the e\"'act turnover suppressed. The basis adopted by the Salc1tax Oftlcer was a relevant one whether it was te most appropriate or not. Hence the Hiah Court was not justified in interfenng with the same. [1010 Dl\n\nCommissifJI'Ier of l11Come.tax, Central and U. P. v.\n\nLaxmi1UII'ain Br.dridas., S I.T.R. 170, Raghubar Mandai Harihar Manda! v. The State of Bihar, 8 S.T.C. 770, Ganga Ram Baimokand v. Commissioner of ln, comt-tax, Punjab, 5, I. T. R. 464 and State of Kerala v.\n\nYtlukutty, 60 LT.R. 239, applied.\n\nCommissioner of ]11come-tax West Bengd v. Padamchand Ramgopal. 76 I.T.R. 719, distinguished.\n\n(ii) The contention that in a reassessment made under s. 19(l) of the Act the Sales Tax Officer is not competent to make a best judgment assessment was rightly rejected by ther High Court. Reassessment is nothing but a fresh assessment. [1014 Bl\n\n(iii) Since the estimate of tunnover made by the Sales Tax Officer in hi9 -best judgment assessment was legal and justified the penalty imposed by him under the State Act must also be held to be in accordance with Law.\n\nState of Andhra Pradesh v. Bavuri V. Narasimhan, 16 S. T. C. 54, relied on.\n\nCIVIL APPF:LLATE JuRISDICTION : Civil Appeal No. 1068 & 1069 of 1970.\n\nAppeals by special leave from the judgment and order dated December 2, 1968 of the Madhya Pradesh High Court in Misc.\n\nC. Case No. 84 of 1968.\n\nRam Panjwani and I. N. Shrof}, for the appellant.\n\nR. P. Agarwala, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHEGDE J. These appeals by special leave arise from the decision of the High Court of Madhya Pradesh in a consolidated Rekrence under S. 44 of the Madhya Pradesh General Sales Tax Act,· 1958 (to be hereinafter referred to as the 'State Act'). That\n\nReference was made by the Board of Revenue, Gwalior, partly at the instance of the assessee and partly at the instance of the\n\nC, S.T, v, H.M. !SUPALl (Htgde, J.) 1007\n\nCommissioner cf Salestax, Madhya Pradesh. Four questions of law were referred to the High Cotirt for its decision. They are :\n\n. \" ( 1) Whether on the facts and ciroumstances of the case the revised assessment enhancing the taxable turnover under the State law by Rs. 2,50,000/· and the taxable turnover undtr the Central law by Rs. 1,00,003/-\n\no~ the basis. of the undisputed escape in the amount of Rs, 31,171.28 by adopting the said amount of escaped\n\nturnover as the measure for determining the quantum of enhancement tor the whole year was illegal, unjusti fled or excessive?\n\n(2) Whether a best .iudgmont aasesSIQent could at all be made under s. 19(1) o'l the Act or .whether revi1ion of the aueasmont should be confined to the\n\nquantum of proved or admitted escaped turnover ?\n\n(3) If the answer tothe previous question is that the revision in assessment should be confined only to the\n\nD quantum of proved or admitted escape in turnover, was the penalty of Rs. 2,009/- imposed on the footing of the revision of the assessment for the whole year legal and justified? and ·\n\n( 4) Whether on the facts and cfrcumstances of the case the imposition Qf the penalty under section 19 ( 1) of the Madhya Pradesh General Sales Tax Act, 19S8 read with 'Section 9 ( 3 ) of the Central Sales Tax Act was pot legal?'\n\nThe first three questions were referred to the High Court at the instance of the assessee and the last one was referred at the instance of the Commissioner.\n\nThe High Coutt answered the 1st and the 3rd question in favour of the assessee and the second and the fourth question\n\nin favour of the Department. It opined :\n\n\" ... Our answer to the first question is that the estimate of taxable turnover under the local Act ood the Central Act made G by the assessing authority for the period from 1st November 1959 to 20th October 1960 on the basis of Rs. 31,171.28 as the escaped turnover for a period of 19 days was illegal and unjustified. The escaped turnover proved in the present case is only Rs. 31,171.28 and the assessee is liable to be assessed under both the Acts only on the taxable turnover comprised in -tb, e, escaped tUrnover of H Rs. 31,171.28. Our answer to the seco'rid question is that there\n\nCBJ:l be a bestjudg:rnent assessment under section 19 ( 1 ) of the local\n\nAct. lb a bestjudgment assessment the quantum of escaped tumover would be that which the assessing authority thinks is proved\n\nSUPRBMB COURT REPORTS\n\n\n. or is established. In other assessments the quantum of escaped A turnover would be the one which the assessing authority finds proved whether on the admission of the assessee or on the material produced at the enquiry in which the assessee has participated.\n\nThe third question is answered by saying that the imposed penalty of Rs. 2,000/- is, in view of our answer to the first question, not legal. Our answer to the fourth question is that a penalty for B escaped assessment under the Central Act can be imposed under Section 19 ( 1 ) of the local Act.\"\n\nAggrieved 'by the decision of the High Court, the Commissioner has brought these appeals. The asssee has not appealed against\n\nthat portion of the decision which went against him.\n\nThe facts of the case necessary for deciding the questions of law arising for decision in these appeals, as could be gathered trom the Statement of the case may now be set out.\n\nThe assessee was a registered deaier under the 'State Act' as well as the Central Sales Tax Act (which will hereinafter be referred to as the 'Central Act'). He was a dealer in Iron and Steel. In these appe$, we are concerned with his turnover for the period November 1, 1959 to October 20, 1960. In that year he declared a gross turnover of Rs. 3,97,356/ 18 and taxable\n\nturnover of Rs. 1,10,246/ 63P. The Sales-tax Officer determined his gross turnover at Rs. 3,97,357/- and -taxable turnover at Rs. 1,21,567/ -. Under the 'State Act\" he assessed him in tke sum of Rs. 3,743.34P. on November '20, 1961. The assessee had not declared his gross or taxable turnover in respect of the year in question under the 'Central Act'. But the Sales-tax Officer determined his turnover under the 'Central Act' by his order dated Decembler 8, 1962 at Rs. 22,916/ - and levied on him a tax of Rs. 252.04. The assessee did not appeal against these orders.\n\nIt appears that on September 19, 1963 the Flying Squad inspected the business premises of the assessee and found a Bill book for the period September 1, 1960 to Setember 19, 1960. The Bill book showed that the assessee had effected sales of iron and steel during that period of the value of Rs. 31,171.28P. Those sales had not been entered in the books of account maintained by the\n\nassessee.\n\nOn the basis of the information provided by the bill book seized, the Sales-tax Officer initiated proceedings under s. 19(1) of the 'State Act' on January 15, 1964 by issuing the prescribed notices to the assessee. He also initiated proceedings under that section under the 'Central Act' on March 15; 1964.\n\nThe notices in question were served on the assessee on April 17,\n\n1964 and March 19, 1964 respectively. In response to these notices; the assessee submitted an explanation denying that the bill book in question pertained to his dealings. Further, he also disputed the correctness of the estimates made by the Sales-tax Officer of\n\nC.S.T. V, H.M. ESUFALI (Hegde, J.) 1009\n\nhis turnovers in the notices issued to him.\n\nAfter hearing the assessee, the Sales-tax Offier reassessed the assessee under the 'State Act' on April20, 1964 and under the 'Central Act' on April\n\n30, 1964. The reassessments were made on the basis of 'bestjudgment'.\n\nIa:t estimating the assessee's turnover, the Sales-tax Officer took into considration the fact that the assessee had dealings outside his accounts of the value of Rs. 31,171.28 during a period of 19 days. On the basis afforded by the facts discovered, the Sales-tax Officer estimated the assessee's turnover under the\n\n'State Act' for the assessment period in question at Rs.6,47,357 /- (3,97,357, + 2,50,000).\n\nSimilarly he reopened the assessee's assessment under the 'Central Act, and estimated the turnover of the assessee under that Act at Rs. 1,22,916/- (22,916+1,00,000).\n\nHe also imposed on the assessee a penalty of Rs. 2,000/- under the 'State Act' and a penalty of Rs. 1,500/- under the 'Central Act' The assessee appealed against the reassessments made on him as well as against the penalties imposed on him.\n\nThose appeals were dismissed by the, Appellate authority. The asseSsee took up the matter in second appeal to the Board of Revenue, Madhya Pradesh, Gwalior. The Board of Revenue set aside the penalty Otf\n\nRs. 1500/-imposed under the 'Central Act, but in other respects. it rejected the appeal of the assessee.\n\nThereafter the Board, partly at the instance of the assessee and partly at the instance of the Commissioner,· submitted the four questions set out earlier to the High Court.\n\nBefore proceeding to examine the contentions advanced on behalf of the parties, it is necessary to clearify certain aspects. It may be noted that the first assessments were made by the Sales.tax\n\nOfficer primarily on the basis of the returns submitted by the assessee. , In the proceedings relating to those assessments, the Sales-tax Officer relied on the books of account of the assessee.\n\nWhile making reassessments on the basis of the information gatherred from the bill book seized, the Sales-tax Officer rejected the accounts maintained by the assessee as unreliable and assessed the assessee on the basis of his 'best judgment'. The distinction between a 'best judgment' assessment and assessment based on the accounts submitted by an assessee must be borne in mind.\n\nSometime there may be in<Docent or trivial mistakes in the accounts maintained by the assessee. There may be even certain unintended or unimportant omissions in those accounts; but yet the accounts may be accepted as genuine and substantially correct.\n\nIn such cases, the assessments are made on the basis of the accounts maintained even though the assessing officer may add back to the accounts price of items that might have been omitted to be included in the accounts. In such a case, the assessment made is not a 'best-judgment' assessment.\n\nIt is primarily made on the basis of the accounts maintained by the assessee. But when the assessing\n\n\n[1973] 3 S, C.R.\n\nofficer comes to the conclusion that no reliance can be placed on thC' accounts maintained biY the assessee, he proceeds to assess the 18801see on the basis of his 'best-judgment', In doing so. he may take such assistance as the assessee's accounts may afford, he may also. rely on other infonnation gathered by him as well as an the surrounding circumstances of the case. The assessments made on\n\nthe basis of assessee's accounts and those made on 'best-judgment basis are totally different types of assessments.\n\nNow coming to the facts of this case, it is nece.ssal'y to remember that at the initial stage, the assessee denied that the\n\nbill book seized w'as his bHI book and the entries thelein related to his dealings. He asserted that he had nothing to do with the bill book in question and the entries therein do not relate to his dealings. But at a later stage, he conceded that that 'bill book was his and 1the entries 1heretn related to his dealings. It is now proved as well as admitted that his dealings outstde his accounts during a period of 19 days were of the value of Rs. 31,171.28.\n\nFrom this circumstance, it was open to the Sales-tax Officer to infer tb, at the assessee had large scale deaHngs oumde his accounts.\n\nThe assessee has neither pleaded nor established only jusifiable\n\nreason for not entering in his accounts the dealings noted in the bill book seized. It is obvious that he was maintaining false accounts to evade payment of sales-tax. :&1 such a situation it was not possible for the Sales-tax Officer to find out precisely the turnover suppressed.\n\nHe could only make an estimate of the suppressed tum.over on the basis of the material . before him.\n\nSo long as the estimate made by him is not arbitrary and has nexus with facts discovered, the name cannot be questioned. In the very nature of things the estimate made may be an over-estimate or an under-estimate.\n\nBut that is no ground for interfering with his 'bet judgment'. It is true that the basis adopted by the officer should be relevant to the estimate made. The High Court was wrong in assuming that the assessing authority must have material before it to prove the exact turnover suppressed. If that is true there is no question of best-judgment. The assessee cannot be pennitted to take advantage of his own illegal acts. It was his duty to place all facts truthfully before the assessing authority.\n\nIf he fails to do his duty, he cannot be allowed to call upon the assessing authority to prove conclusively what turnover, he had suppressed. That fact must be within his personal knowledge.\n\nHence the burden of proving that fact is on him. No circumstance has been placed before the assessing athority to show that the as- &essee's deelings during 1-9-1960 to 19-9-1960 outside his accoul!ts were due to some exceptional circumstance or that they were proportionately more than his dealings outside his accm, mts, during the remaining periods.\n\nThe assessing authority c;:ould not have been in possession of any correct measure to find out the escaped\n\nC.S.T. V, H.M. ESUPALI (Hegfk, J.)\n\n10 II\n\nturnover during the periods 1-11~1959 to 31-8-1960 and 20..9-1960 to 20-1 0-1960.· The task of the a$sessing authority finding out the\n\nescaped turnover was by no means.easy. In estimating any escaped turnover it is inevitable that there is some guess. work. The assessing authority while making the 'best-judgment' as8essment: no doubt should arrive at its conclusion without any bias and on rational blasis. That authority should not be vindictive or capricious. If the . estimate made b~ the assessing authority is a bona fidt estimate and is based on a rational basis, 'the fact the.t there is no good proof m support of that estimate is immaterial. Prima 'facll, the IIIMI\n\nmg authority is the best judge of tho situation. It is his •best-j\\ldgment' and not of any-on~ else's. The High Court could not substitute its 'best-judgment' for that of the assessing authority. In the case of 'best-judgment' assessments, the courts will have to first see whether the accounts maintained by the assessee were rightly rejected as unreliable.\n\nIf they come to the conclusioo Chat they were rightly rejected, the next question that arises for consideration is whether the basis adoped in -estimating the turnover has a reasonable nexus with the estimate made. If thebasis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate basis, the estimate made by the assessing authority can.not be disturbed.\n\nIn the present case, there is no dispute that the assessee's accounts were rightly discarded. We do not agree wi'th the High Court that it is the duty of the assessing authority to adduce proof in support of' its estimate. The bis adoptOO by the Sales-tax Officer was a relevant one whether it was the most appropriate or not. Hence the High Court was not justified in interfering with the same.\n\nThe Jaw relating to 'best-judgment' assessment is the same both in the case of income-tax assessment as well as in the case of sales-tax assessment. The scope of 'best-judgment' assessment under the Income-tax law came up for consideration before the Judicial Committee as early as 1937 in Commissioner of Incometax, Central and U.P. v. Laxminarain Badridas.(l). Therein Lord Russel of Killowen speaking for the Judicial Committee observed (at P- 180):\n\n'The Officer is to make an assessment to the best of his judgment against a perSon who is in default as\n\nregardS supplying information.\n\nHe must not act dishoAestly, or vindictively or capriciously because he must exercise judgment in 'the matter. He must make what he honestly believes to be a fair estimate of the proper\n\nfigure of assessmnt, and for this purpose he must; their Lordship think, be able to take into consideration local knowledge and repute in regard to the assessee's circum-\n\n0) 5.1.1 .R.l70.\n\n1012 SUPREME. COURT kEPORTS\n\n(i973) 3 S.C.R.\n\nstances and his own. knowledge of 'previous returns . by and essments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate, and though . 'there must necsily be guess--work ill the matter, it must be honest guess-work.\n\nIn that sense, too, the assessment must be to some extent arbitrary.'' . . In Raghubar Mandai Harihar Manda! v. The State of Bihar(1) a case arising under the Bihar Sales Tax Act, 1944, the law relating to 'best-judgment' assessment was examined at length by this Court. Therein S. K. Das J. speaking for the Court observed ·(atp.778): ' \"No doubt it is true that when the rturns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Ruessel of Killowen again, \"he must make what he honestly believes to be a fair estimate of the proper figure of assessment'' and for this purpose he must take into consideration such materials as the assessingofficer has before him. including the assessee's circumstances knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate:·\n\n(emphasis supplil!d) Proceeding further the learned judge quoted with approval the\n\nobservations of Din Mohamad J. in Ganga Ram Balmokand v.\n\nCommissioner of Income-tax, Punjab (2) :\n\n••rt cannot be denied that there must be some material before the Income-tax Officer on which to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is 'required on which his estimate cnn be founded.\"\n\nftcr quoting those obervations, the learned judge proceeded to oh.<; erve:\n\n. \"With that obc; crvation we generally agree. If. in th1q case, the Sale'! Tax Authorities had based their c<.rimate on some material fore them, no objection could have been taken.\"\n\nArmhin~~ the nJie laid down in Raelwbar Manclal f[arihar .'U, mdal'.f Cu'.4'! ( upra). to the f:.tcts of the present case it, i'l seen ---- .. ~\n\n(I'}~'> T C -7111 f:!l S I. T.R. 46-l.\n\n<;;.S.T. V, H.M. ESUFALI (f!egde,· J.) 1013\n\nthat the. Sales~ tax Otfi.ce, r had material befre him t~ find out, how much turnover had escaped assessment dunng a penod of 19 days.\n\nOn the baSis. of that material he estimated 'the escaped turnover for the entire year. Hence it cannot be said that there was no basis for the estimate made by the Sales-tax Officer. t may be that his estimate was an over-estimate or an under-estJmte but it\" cannot be said that 'the estimate was without any basis. .In making that estimate, there was an element of guess-work winch\n\nwas inevitable in the circumstances of the case. If the Sales-tax Officer was compelled. to adopt a: rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation.\n\nIn State of Kerala v. C. Velukutty,(L) this Court speaking through Subba Rao J. (as he then was) observed (at p. 244 of the Report) : • \"The limits of the power are implicit in tl1e expression \"best of his iudgment\". Judgment is a faculty to decide matters with wisdom truly and legally.\n\nJudgment does not depend upon the arbitrary caprice of a judge, but on settled and invariable principles of\n\njustice.\n\nThough there is an clement of gues.;-work in a \"best judgment assessment\". It shall not be a wild\n\none, but shall have a reasonable nexus to the available muterial and the circumstances of each case.\" The question before us is whether there is a r.::as0nable nexus betwee-n the basis adopted by the assessing authority and the estimate of escupcd turnover mude. We have no doubt that there is such a nexus.\n\nOn behalf of the assessee, reliance was placed on the decision . of this Court in Commissioner of Income-tax, JV est Bengal v.\n\nPctdamclrand Ramgopal( 1). Therein, while investigating into the case of l11c assessee, the Income-tax Ollicer found two insignificant 1rustakcs in the asscssees accounts relating to the assessment year 1953-54. No mistakes were fOlmd in the accounts rel.atincr to the assessment years 1954-55 to 1957-58.\n\nMerely because\"' therl! were some insignificant mistakes in theaccoums maintained by the\n\nasssce for the assessment year 1953-54, the Income-tax Otncer reJected the acc{)unts of the assessee for all the cotic.:m..:d assessment year> and added to the income returned half the amount of\n\ngros receipts shown by the assessee under the head \"interest'' for eac~ _of the years s escaped lr1comc. The Tribunal upheld the _udtttOn but the H1p.h Court came to the conclusion that the add1hons made by the Income-tax Officer were quite arbitrary.\n\nThi~ Court agreed with that view. We do not think that the said decision lends any support to the assessee's contention.\n\n(I) 60 I, T.R.23<1 fl) 76 I.T.R.7I9.\n\n1 014\n\n\n(1973] 3 S.C.R.\n\nFor the reasons mentioned abve, we are unable to agree with A Jhe High Court that the Saks-tax Officer had arbitrarily assessed 1J1e assessee. .\n\nlt was next contended that in a re-assessment under s. 19 ( l J .of the Act, Sale-tax Officer was not competent to make 'bestjudgment assessment' as no such power was conferred on him under the said section. This contention had been rejected by the B High Coi.Jrt and 'the assessee had not appealed against that part of the judgment. Be that as it may, even though s. 19 does not in specific terms confer on the assessing. authority power to make 'best-judgment assessment' that section specifically says that th~ assessment made under that section is a re-assessment.\n\nSection 18 deals with assessment of tax. Section 18 ( 4) says : c \"lf a registered dealer-\n\n(a) X X X X\n\n(b) X X X X\n\n(C) X X X X\n\n(d) has not maintained any account or has not regularly employed any method of acQounting, or if the method employed is such that in the opinion of the Commis!iioncr assessment cannot properly be made on the b<tsis thereof; the Commissioner shall in the prescribed manner assess the dealer to the best of his judgment.'' What is true of the ao; sessment must also be true of rc<.hscssment because reasessment is nothing but a fresh assessment.\n\nWhen reassessment is made under s. 19, the former assessment i-i completely reopened and jn its place fresh assessment is madl!.\n\nWhile rcasscs!>ing a dealer, the ~-; sessing authority does not merely\n\nasess him on the escaped turnover c!ut it assesses him on his\n\ntotal estimated turnover.\n\nWhile making reassessment under s. 19, it the assesing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment i~ to refuse to file a return or refuse to produce his account-books.\n\nIf the contention taken on khalt of the ussesscc is correct, the assessee can escape hie; liability to be rco:sscssed bv adoptin\" an\n\noblructive attitude. lt is difficult to conceive that such could be the position in bw.\n\nBefore maling reascs!>mcnt, the assessing authority hJs H•. undtr rule 33(1) framed under the Act, Ctlll upon the uo; c; css.:~ to priJJuce his books of ; ccount and other documl!nts \\\\hi(\"h th~\n\n\" ~'c, ing uthority may ruire and any evidcm:o: '' hich the JeJkr may .,.. !\"~ to produce in upp:)ft of his objection.\n\nWhen uch a nviH.:c '\" ~>~ ucJ to the dealer, he may appear before the assessing :JLHlHJrtly Pn the date fixell in the notice and prefer his objections\n\nI 015\n\nC.S.T. V, H.M. ESUF\".L! (H ' egde, J.)\n\nand poduce such evid~:1cc as he m .\n\n(2) of rule 33 provides that if the a ay thrnk necessary. Sub-rule rhe notice under s. 33 (I ) the asses~~'See appears in response to assessment, if necessary oly after c~m% athority may make ret<i by the dealer and fter examinin~\n\nerng t.he objections rais- . produced by him.\n\nJt is important to~ uc erdence a~ may be ll the assessing authority is required to isudhat Hl the notr7e which\n\n1 6, the exent of the escaped turnover as ~? te caler In form ing authonty has to be specified The es rmdate bY: the assess- -, 33 ld t h b , proce ure lard down in rue cou no ave een a mere empty f r\n\nassessee's contention is right in order t oesca rma lty. If the h d d -: ' . p-. reassessment all that t e assessee nee o 1s to rgn_ore the notice issued under rule 33 ( 1) and refuse to o-operate wrth the assessing authority in the\n\nrcasessment. proc_eedmgs.\n\nWe are unable to accept that tha s the true posrtron rn law. t r.\n\nIn our opinion the decision of th~ Andra Pradesh High Court 10 State of A ndhra Pradesh v. Bavun V. Narasimhan,(') relied on by the assessee was not correctly decided.\n\nFor the reasons mentioned above, we altow the; c appeals, vacate the answers given by the High Court to Que:; tions Nos.\n\nI and 3 and answer those questions in favour of the Department i.e, that the estimate of taxable turnover under the 'State Act and the 'Central Act' m:tde by the assessing authority for the . period from November l, 1959 to October 20, 1960 on the basis E of Rs. 31,171.28 as tlie escaped turnover for a period of 19 days\n\nwas legal and justified and consequently the penalty of Rs. 2,000/- imposed on the assessee was in accordance with law. The asscss:e shall pay the costs of the Department both in this Court and m the High Court.\n\nG.C.\n\nAppeals allowed.\n\n-·--- ----·--\n\n.16 S.T.C.5\n\n... _____ _ ----- --", "total_entities": 56, "entities": [{"text": "COMMISSIONER OF SALES-TAX, MADHYA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES-TAX, MADHYA PRADESH", "offset_not_found": false}}, {"text": "S. H.M. ESUFALI, H. M. ABDULALI, SIYAGANJ.-\n\nINDORE", "label": "RESPONDENT", "start_char": 45, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "M/S. H.M. ESUFALI, H. M. ABDULALI, SIYAGANJ, INDORE", "offset_not_found": false}}, {"text": "K. s. HEGDE", "label": "JUDGE", "start_char": 114, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 130, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "s. 19( 1)", "label": "PROVISION", "start_char": 1105, "end_char": 1114, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act 1958", "label": "STATUTE", "start_char": 1146, "end_char": 1164, "source": "regex", "metadata": {}}, {"text": "Act and the Central", "label": "STATUTE", "start_char": 1676, "end_char": 1695, "source": "regex", "metadata": {}}, {"text": "s. 19(l)", "label": "PROVISION", "start_char": 4962, "end_char": 4970, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPF:LLATE JuRISDICTION", "label": "PETITIONER", "start_char": 5452, "end_char": 5481, "source": "ner", "metadata": {"in_sentence": "CIVIL APPF:LLATE JuRISDICTION : Civil Appeal No."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 5667, "end_char": 5679, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani and I. N. Shrof}, for the appellant."}}, {"text": "I. N. Shrof", "label": "LAWYER", "start_char": 5684, "end_char": 5695, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani and I. N. Shrof}, for the appellant."}}, {"text": "R. P. Agarwala", "label": "LAWYER", "start_char": 5718, "end_char": 5732, "source": "ner", "metadata": {"in_sentence": "R. P. Agarwala, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 5799, "end_char": 5804, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE J. These appeals by special leave arise from the decision of the High Court of Madhya Pradesh in a consolidated Rekrence under S. 44 of the Madhya Pradesh General Sales Tax Act,· 1958 (to be hereinafter referred to as the 'State Act').", "canonical_name": "HEGDE"}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 5870, "end_char": 5898, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE J. These appeals by special leave arise from the decision of the High Court of Madhya Pradesh in a consolidated Rekrence under S. 44 of the Madhya Pradesh General Sales Tax Act,· 1958 (to be hereinafter referred to as the 'State Act')."}}, {"text": "S. 44", "label": "PROVISION", "start_char": 5932, "end_char": 5937, "source": "regex", "metadata": {"statute": null}}, {"text": "Board of Revenue, Gwalior", "label": "ORG", "start_char": 6073, "end_char": 6098, "source": "ner", "metadata": {"in_sentence": "That\n\nReference was made by the Board of Revenue, Gwalior, partly at the instance of the assessee and partly at the instance of the\n\nC, S.T, v, H.M. !"}}, {"text": "s. 19(1)", "label": "PROVISION", "start_char": 6866, "end_char": 6874, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 7390, "end_char": 7400, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 7467, "end_char": 7476, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 7490, "end_char": 7511, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1st November 1959", "label": "DATE", "start_char": 8022, "end_char": 8039, "source": "ner", "metadata": {"in_sentence": "It opined :\n\n\" ... Our answer to the first question is that the estimate of taxable turnover under the local Act ood the Central Act made G by the assessing authority for the period from 1st November 1959 to 20th October 1960 on the basis of Rs."}}, {"text": "section 19", "label": "PROVISION", "start_char": 8481, "end_char": 8491, "source": "regex", "metadata": {"linked_statute_text": "Our answer to the first question is that the estimate of taxable turnover under the local Act ood the Central Act", "statute": "Our answer to the first question is that the estimate of taxable turnover under the local Act ood the Central Act"}}, {"text": "Our answer to the fourth question is that a penalty for B escaped assessment under the Central Act", "label": "STATUTE", "start_char": 9065, "end_char": 9163, "source": "regex", "metadata": {}}, {"text": "Section 19", "label": "PROVISION", "start_char": 9185, "end_char": 9195, "source": "regex", "metadata": {"linked_statute_text": "Our answer to the fourth question is that a penalty for B escaped assessment under the Central Act", "statute": "Our answer to the fourth question is that a penalty for B escaped assessment under the Central Act"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 9655, "end_char": 9676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "October 20, 1960", "label": "DATE", "start_char": 9860, "end_char": 9876, "source": "ner", "metadata": {"in_sentence": "In these appe$, we are concerned with his turnover for the period November 1, 1959 to October 20, 1960."}}, {"text": "September 19, 1963", "label": "DATE", "start_char": 10543, "end_char": 10561, "source": "ner", "metadata": {"in_sentence": "It appears that on September 19, 1963 the Flying Squad inspected the business premises of the assessee and found a Bill book for the period September 1, 1960 to Setember 19, 1960."}}, {"text": "s. 19(1)", "label": "PROVISION", "start_char": 11034, "end_char": 11042, "source": "regex", "metadata": {"statute": null}}, {"text": "January 15, 1964", "label": "DATE", "start_char": 11065, "end_char": 11081, "source": "ner", "metadata": {"in_sentence": "On the basis of the information provided by the bill book seized, the Sales-tax Officer initiated proceedings under s. 19(1) of the 'State Act' on January 15, 1964 by issuing the prescribed notices to the assessee."}}, {"text": "March 15; 1964", "label": "DATE", "start_char": 11209, "end_char": 11223, "source": "ner", "metadata": {"in_sentence": "He also initiated proceedings under that section under the 'Central Act' on March 15; 1964."}}, {"text": "April 17,\n\n1964", "label": "DATE", "start_char": 11281, "end_char": 11296, "source": "ner", "metadata": {"in_sentence": "The notices in question were served on the assessee on April 17,\n\n1964 and March 19, 1964 respectively."}}, {"text": "March 19, 1964", "label": "DATE", "start_char": 11301, "end_char": 11315, "source": "ner", "metadata": {"in_sentence": "The notices in question were served on the assessee on April 17,\n\n1964 and March 19, 1964 respectively."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 11581, "end_char": 11586, "source": "ner", "metadata": {"in_sentence": "Further, he also disputed the correctness of the estimates made by the Sales-tax Officer of\n\nC.S.T. V, H.M. ESUFALI (Hegde, J.) 1009\n\nhis turnovers in the notices issued to him.", "canonical_name": "HEGDE"}}, {"text": "Board of Revenue, Madhya Pradesh, Gwalior", "label": "ORG", "start_char": 12800, "end_char": 12841, "source": "ner", "metadata": {"in_sentence": "The asseSsee took up the matter in second appeal to the Board of Revenue, Madhya Pradesh, Gwalior."}}, {"text": "1-9-1960", "label": "DATE", "start_char": 17363, "end_char": 17371, "source": "ner", "metadata": {"in_sentence": "No circumstance has been placed before the assessing athority to show that the as- &essee's deelings during 1-9-1960 to 19-9-1960 outside his accoul!ts were due to some exceptional circumstance or that they were proportionately more than his dealings outside his accm, mts, during the remaining periods."}}, {"text": "19-9-1960", "label": "DATE", "start_char": 17375, "end_char": 17384, "source": "ner", "metadata": {"in_sentence": "No circumstance has been placed before the assessing athority to show that the as- &essee's deelings during 1-9-1960 to 19-9-1960 outside his accoul!ts were due to some exceptional circumstance or that they were proportionately more than his dealings outside his accm, mts, during the remaining periods."}}, {"text": "H.M. ESUPALI", "label": "JUDGE", "start_char": 17678, "end_char": 17690, "source": "ner", "metadata": {"in_sentence": "The assessing authority c;:ould not have been in possession of any correct measure to find out the escaped\n\nC.S.T. V, H.M. ESUPALI (Hegfk, J.)\n\n10 II\n\nturnover during the periods 1-11~1959 to 31-8-1960 and 20..9-1960 to 20-1 0-1960.·", "canonical_name": "H.M. ESUPALI"}}, {"text": "Hegfk", "label": "JUDGE", "start_char": 17692, "end_char": 17697, "source": "ner", "metadata": {"in_sentence": "The assessing authority c;:ould not have been in possession of any correct measure to find out the escaped\n\nC.S.T. V, H.M. ESUPALI (Hegfk, J.)\n\n10 II\n\nturnover during the periods 1-11~1959 to 31-8-1960 and 20..9-1960 to 20-1 0-1960.·"}}, {"text": "Russel of Killowen", "label": "OTHER_PERSON", "start_char": 19933, "end_char": 19951, "source": "ner", "metadata": {"in_sentence": "Therein Lord Russel of Killowen speaking for the Judicial Committee observed (at P- 180):\n\n'The Officer is to make an assessment to the best of his judgment against a perSon who is in default as\n\nregardS supplying information."}}, {"text": "Bihar Sales Tax Act, 1944", "label": "STATUTE", "start_char": 21009, "end_char": 21034, "source": "regex", "metadata": {}}, {"text": "S. K. Das", "label": "JUDGE", "start_char": 21129, "end_char": 21138, "source": "ner", "metadata": {"in_sentence": "Therein S. K. Das J. speaking for the Court observed ·(atp.778): ' \"No doubt it is true that when the rturns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion."}}, {"text": "Ruessel", "label": "OTHER_PERSON", "start_char": 21493, "end_char": 21500, "source": "ner", "metadata": {"in_sentence": "To use the words of Lord Ruessel of Killowen again, \"he must make what he honestly believes to be a fair estimate of the proper figure of assessment'' and for this purpose he must take into consideration such materials as the assessingofficer has before him."}}, {"text": "Killowen", "label": "GPE", "start_char": 21504, "end_char": 21512, "source": "ner", "metadata": {"in_sentence": "To use the words of Lord Ruessel of Killowen again, \"he must make what he honestly believes to be a fair estimate of the proper figure of assessment'' and for this purpose he must take into consideration such materials as the assessingofficer has before him."}}, {"text": "Din Mohamad", "label": "JUDGE", "start_char": 22014, "end_char": 22025, "source": "ner", "metadata": {"in_sentence": "including the assessee's circumstances knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate:·\n\n(emphasis supplil!d) Proceeding further the learned judge quoted with approval the\n\nobservations of Din Mohamad J. in Ganga Ram Balmokand v.\n\nCommissioner of Income-tax, Punjab (2) :\n\n••rt cannot be denied that there must be some material before the Income-tax Officer on which to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is 'required on which his estimate cnn be founded.\""}}, {"text": "H.M. ESUFALI", "label": "JUDGE", "start_char": 22813, "end_char": 22825, "source": "ner", "metadata": {"in_sentence": "to the f:.tcts of the present case it, i'l seen ---- .. ~\n\n(I'}~'> T C -7111 f:!l S I. T.R. 46-l.\n\n<;;.S.T. V, H.M. ESUFALI (f!egde,· J.) 1013\n\nthat the.", "canonical_name": "H.M. ESUPALI"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 23642, "end_char": 23651, "source": "ner", "metadata": {"in_sentence": "In State of Kerala v. C. Velukutty,(L) this Court speaking through Subba Rao J. (as he then was) observed (at p. 244 of the Report) : • \"The limits of the power are implicit in tl1e expression \"best of his iudgment\"."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 25748, "end_char": 25753, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 26061, "end_char": 26066, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 26266, "end_char": 26276, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 26307, "end_char": 26317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 26874, "end_char": 26879, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 27166, "end_char": 27171, "source": "regex", "metadata": {"statute": null}}, {"text": "C.S.T. V", "label": "JUDGE", "start_char": 28068, "end_char": 28076, "source": "ner", "metadata": {"in_sentence": "When uch a nviH.:c '\" ~>~ ucJ to the dealer, he may appear before the assessing :JLHlHJrtly Pn the date fixell in the notice and prefer his objections\n\nI 015\n\nC.S.T. V, H.M. ESUF\"."}}, {"text": "H.M. ESUF\"", "label": "JUDGE", "start_char": 28078, "end_char": 28088, "source": "ner", "metadata": {"in_sentence": "When uch a nviH.:c '\" ~>~ ucJ to the dealer, he may appear before the assessing :JLHlHJrtly Pn the date fixell in the notice and prefer his objections\n\nI 015\n\nC.S.T. V, H.M. ESUF\".", "canonical_name": "H.M. ESUPALI"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 28229, "end_char": 28234, "source": "regex", "metadata": {"statute": null}}, {"text": "Andra Pradesh High Court", "label": "COURT", "start_char": 29101, "end_char": 29125, "source": "ner", "metadata": {"in_sentence": "t r.\n\nIn our opinion the decision of th~ Andra Pradesh High Court 10 State of A ndhra Pradesh v. Bavun V. Narasimhan,(') relied on by the assessee was not correctly decided."}}]}
{"document_id": "1973_3_1016_1038_EN", "year": 1973, "text": "P.MALAICHAMI v.\n\nM. ANDI AMBALAM & ORS.\n\nA.prll 18, .1973 [D. G. PALB!Wl AND A. ALAGIB.!SWAMI, JJ.]\n\nRtpreHntatlon of PIOplt's A.ct, Sec. 91 Rtcrimllratlon pttltlon- NecUllty of-R.espclndtnt challenging 11ectlon of appellant and 111kl\"6 d1c/aratlon of el1ctlon hlmstlf-A.ppellant nDl fillng Rtcrlmlnotlon petition u/• 91-In general recount valid votts cast In favour of appt/lanr cannot bf tizken account fur non-compliance of sec. 91-High Court would haVe no jurisdiction.\n\n'Jbe respondent filed an election petition, not only questionipg the election of the appellant but . also claiming the seat for himself, allegin$ infraction of the Oonduct of Electiop Rules. Accordingly, he praye<t for recounting of the votes and for declarations that he was duly elected Bild that the election of the appellant was void. 1be appellant in bis counter affidavit denied all the allegations ;., the petition. However, the appellllllt did J>Ot file any Recrimination application u/s 97 of the Act. 'Ibe respondent filed an interlocutory epplication for directing a scrutiny end recounting of all the votes. 'Ibe evidence waa duly recorded and the learned Judge of the High Court eventually passed an order on various groUJ>ds for recount of the votes.\n\nAs a result of the recount, It was finally found that the majority of 127 votes by which tho appellant had been declered elected was reduced to 75 votes.\n\n'Ibe respondent urged before the High Court that in a case where the election petitioner had applied not merely for setting aside the election of the successful candidate but alao for declaril:lg himself (the defeated candidate) as elected, it was the duty of the successful candidate to have filed a Recrimination application u/s 97 of the Act. 'Ibe High Court took the view that in the absence of the Recrimination petition u/ s 97 the appellant was not entitled to question any votes which might have been improperly received on behalf of the respondent.\n\nConsequently, the High Court found that leaving_ out of account votes improperly received on behalf of the respondept and taking into account only the votes which ought to have gone to the respondent which had been improperly rejected, the respondent bad secured 96 votes more than the appellant and declared him elected,\n\n. On e.ppeal to this OJurt th~ appellant made the followinJ,:. submis- SIODS : (1) Sec. 97 has no application to a case where a prayer is fototal count and re-scrutiny; 'ii) Sec. 97 has no application to the present case where the returned candidate let in or did not have ro let i, n any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the n!spondents protest; iii) Since am case has been made out in respect of individual votes 111!<1 no finding given for inspecting individual votes liie petitioner would not be entitled to the benefit of the deision ;,; Jabar Slngh'a C\"1e '[(19614) 6 S.C.R. 54] and his .ri$fit is only to a gener_al .recount or none at all; (iv) 'The respondent \" estopped from questiorung the result of the recount because of mutual concessions; ( v) The present case is wholly different from the one in Johar Singh v' Genda Lal and the whole question should be reconsidered by a large;\n\nP, MALAICHAMI v. M. AMBALAM (Alagiriswamy, J.) 1017\n\nbench in view of Justice Rajagopala Ayyangar's dissenting judgment; and (vi) The democratic process should be allowed to have full sway and no more technicality should be allowed to come in the way of jusfice being done.\n\nDismissing the appeal,\n\nHELD : (I) The appellant did 11<>1 comply with the requirements of Sec. 97 of the Act. The appellllllt had not given notice u/s 97 within 14 days of his appearance to give evidence to prove that the election of the respondent would have been void if the respondent had been the returned candidate nor had be given the security and further security referred to in sections 117 and 118 respectively nor was there any stlltement and particulars as required u/, s 83 in case of an election petition. Even when an attempt was made to file a recriminaticp peti tion with a petition to excuse the delay, the other requisites of Seo. 97 were not complied with. [.t032-G-!033BJ\n\n(2) The respondent's prayer for recount was not a request for mere chanical process of countipg but for counting contemplated u/r, 56 with all its implications. The very grounds on the basis of which the re.count was ordered by the learned Judge show that there was a possibility of mistakes having arisen under any one of the grounds set out in R. 56 (2) clauses (a) to (h) and it is to have them taken into account and tested correctly that the respondent wanted recount.\n\nWhen the respondent wants recount for the purpose of settin• aside the appellant's elecfion, be necessarily has got to have not merely the benefit of votes which would have originally gone to him but which had been wrongly given to the appellant but also all votes which had bee11 cast in his favour but had been rejected wrongly on one or the other grounds meptioned in R. 56(2) clauses (a) to (h). It was necessary for the purpose of respondent's case not merely that vots which were held invalid should be re-scrutinised but also votes which had. been held to have been cast in favour of the appellant.\n\nThe improper reception or rejection, therefore, would include not merely cases where -a voter appears before the Presiding Officer at the time of the polli; rzg and his vote is received where it should not have been received and his vote rejected where it should not have been rejected. The !mproper ejection or recept!on contemplated u/s 100 (i) (d)(iii) would include mistakes or wron~ Judgments made by the Returnipg Officer while counting and exerCISipg his powers under R. 56(2) clauses (a) to (h). [10350-HJ\n\nThe appellant knew not only that the respondent wanted his el•ction to be set aside but also that he wanted himself declared elected~ He sh.ould have, -therefore, filed a recrimina.tion petition in proper compliance with Sec. 97.\n\nThe election petit!o_n is not an action in law or a suit in equity but _ one under the provmons of the statute which has specifically created that right If a relie.f provided under the. sfatute can be obtained only by followmg a certain procedure laid down therein for that purpose that procedre must be followed if the relief is to be obtained. It i; H not a quest!on of mere pledirig., H is a quetion of jurisdiction. The Election Tribunal had no 1unsd1chon to go mto the question whether any wrong votes had been counted 'in favour of the election petitioner who. h, ad .claime~ .the seat for himself. unless the appellant had filed recnmmatlon petition u/s 97.\n\n[1037D) 797Sup.CJi73\n\n(3) It was not necessary to had evidence in respect of any individual vote '3bout the improper reception or improper rejection as the decision on that question had been give:n mostly on concessions by both the parties and in disputed cas-es by the Judge himself scrutinis'ing the votes.\n\nThere is no such thing as a general recount and there is no authority in law for suggesti:ng that all that the respondent could have asked for woo either a general recount or none at all. U037FJ\n\n( 4) No question of estoppel arises, where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had daimed a seat for himself unless the successful candidate had complied with Sec. 97.\n\nConcession is ak'in to admission and the use of such an admission would be evidence. What\n\nis barred under the proviso to Sec. 97 is the giving of ev'idence by the appellant. The evidence furnished by the valid as well as invalid C votes in favour of both the petitioner aiKI the respondent was not admissible because of the appellant's failure lo comply with the provisions of Sec. 97. [1038B]\n\n( 5) There is no justification for ordering that the case should be heard by a larger bench for re-consideration of the decision in lobar Sing/i's case.\n\n(6) Courts in general arc averse to allow justice to be defeated by a mere technicality. But in deciding an election petition, the High Court is merely a Tribunal decidina the election dispute. Its powors are wholly the creature of the statute under which it is conferred the power to hear the election petition. The election petition Is not an action at law or a suit in equity but is a purely statutory proceeding unkJ>Own to the common law and the CX>urt pooseas no common law power. Though the election of a successful candidate is not to be lightly interfered with one of the essentials of that law is also to fe guard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practice. [ 1029C]\n\nKamaraja Nadar v. Kunju Thevar, [1959]\n\nS.C.R. 583 at 596, Venkaterwar v.· Narasimha, [1969] I S.C.R .. 679 at 685, Ch. Subbarao Member, Election Tribunal, 1964 D.E.C. 270, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 649 of 1972.\n\nAppeal under S. 116A of the Representation of the People Act, 1951 from the judgment and order dated March 13, 1972 of the Madras High Court in Application No. 648 of 1972, and E.P. No. 2 of 1971.\n\nK. K. Venugopal and A. Subhashini, for the appellant.\n\nT. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No. 1.\n\nM. C. Chagla and A. V. Rangam, for respondents Nos. 3 and 4.\n\np, MALAICHAMI v. Ill. AMBALAM (A/agiriswami, I.) 1019\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAlllI, .1. This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes, as against 37,210 received by the respondent 3 ,3 81 votes were held invalid. The respondent filed an election petition on 23-4-1971 not only questioping the election of the appellant but also claiming the seat for himself. He made various allegations in his petition which related to infraction of many of the rules regarding the conduct of election. But we may refer to four important matters, which he had referred to in his petition, the importance of which would become clear in due course. ln paragraph (g) of his petition he has stated :\n\n\"The mixing of the papers, with rapid counting, bas resulted in large number of. votes polled in fayour of the petitioner erroneously added and bundled in the votes wllad by the respondent. This has also resulted in wrong oounti1Ig.\" In paragraph (1 ) he has stated :\n\n''Therefore the petitioner submits that the ballot papers m.ay be directed to be manged according to the 'Serial number and then counted. The petitioner submits that this will reveal the introduction of unauthorised ballot papers, if any, and use of different inks for\n\nmllf~.\" :Paragraph (n) runs as follows :\n\n\"The petitioner states that a number of votes have been declare4 invalid without any justification whatsoever. Many of the votes declared invalid were cast in favour of the petitioner. In the counting, some of the invalid votes were taken in favour of the first respondent. In view of the mixing of the ballot papers counting was done hastily and rapidly without any opportunity to candidate or hi.s agent to supervise the counting. In fact, some of the numbers of counting were wrongly mentio.ned and. went to the respondent instead of counting in the name of the petitioner. If recount has been taken the petitioner would have been declared elected.\" In paragraph ( s) it is stated : . ''The petitioner also states that at the time al counting, the vQtes ill favour of the petitioner were bundled\n\nin the bundles containing the votes in favour of the respl'ltdent and they were counted for the first respondent. Nunmber of ballot papers :were found outside the counting place.\" Finally, he prayed to the Court to:\n\n(a) direct recounting of the votes;\n\n(b) declare the petitioner duly elected;\n\n(c) declare the election of the 1st respondent to Melur North Constituency void, and (d) The api.x:llant in his counter affidavit denied all the allegations in the petiuon. The respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes.\n\nTo this application no counter affidavit was at all filed by the appellant.\n\nFive witness including the petitioner wer• examined on his side and on the respondent's side also five witnesses including the Returning Officer, the Assistant Returning Officer as well as the successful candidate were exaMined at great lengt!i. The learned\n\nJudge after an elaborate, careful, thorough and meticulou.~ examination, which are almost a model of judicial balance and propriety, passed an order for recount of the votes. We consider it unnecessary to set them out at length.\n\nIt may be useful to set out the main grounds on which he ordered recount. These are found in paragraph 22 of his order.\n\n\"22. From the foregoing discussion, the following facts emerge :\n\n(i) Over-worked and tried personnel were employed. !or\n\nthe counting. There are reasonable grounds to think that the counting was not done properly.\n\n(ii) When the counting was in progress, the petitioner admittedly complained about the hasty counting, and there are reasonable grounds to think that on account of the hurry and haste, in which counting wa~ done, the counting was not likely to be co.rrect or proper.\n\n(iii) The unlawful entry of Mr. O.P. Raman into the counting hall, when the counting was going on, caused dislocation and disturbance to the counting, which was likely to have affected the accuracy in the counting.\n\n(iv) The Assistant Returning Officer could not have checked each of the ballot papers brougl\\t to him in the doubtful bundles in the way in which such papel'!I should have been checked by him, having regard to the time within which he claims to have completed the H checking and dOunting, whereas much longer time would be required to check up these bundles in the\n\nP. MALAICHAMI v. M. AMBALAM (Alaglriswami, J.) 1021\n\nproper and prescri1*d way. This le_ads to the reasonable inference that each of the ballot papers contained in the doubtful bundles was not checked.\n\n(v) The order of the Returning Officer directing recounting of the ballot papers treated as invalid lends support to the. contention of the petitioner that the votes were not properly scrutinised.\n\n(vi) The failure of the Returning Officer to implement his order to recount has vitiated the declaration of the result.\n\n(vii) The Returning Officer and the Assistant Returning\n\nOfficer totally failed to check up the valid votes and this is clearly a breach of the instructions issued by the Election Commission and also by the State Government. There is no assurance that the votes w:re properly sorted and counted.\n\nThere is rel!sonable possibility to hold that the counting was not proper; and\n\n(viii) The test check conducted by me of some of the ballot papers treated as invaild clearly shows that some valid votes secured by the petitioner and some secured by the respondent have een -treated as invalid and rejected.\n\nThis clearly shows that the counting was wrong.\" It would be noticed that the main attack was in respect of the counting and the findings of the learned Judge also related to the llame question.\n\nThe appellant had very hotly contested the propriety of the request for recount.\n\nThe learned Judge considered the decisions in Rtim Sewak v. H. K. Kidwai( 1 ), Jagjit Singh\n\nv. Kartar Singh(\"); Jitendra Bahadur v. Krishna Behari(\"), Swami Rameshwara Nand v. Madho Ram('), Nathu Ram Mirdha v. 11 Gordhaba Soni(') and after a very elaborate consideration of the !11cts as well as the principles involved in those decisons had hel'1\n\nthat recount should be ordered.\n\nWe are satisfiCli that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective in coming to the conclusion that the circumstances under which the counting was carried out necessitated a recount.\n\nThe recount was ordered to be done by four ad vacates acting as tellers, two from each side out of a list of four furnished by each side.\n\nBoth the parties and their respective counsel were .permitted to be presen~ alongwith four counting agents for :petitioner as well as the respondent and an Assistant Registrar of the Hi.Rh Court was a1>oointed to oreside over the recount of tho\n\n (!) A.I:R.: 19&1 SC. 1249\n\n(2) A J.R. 1966 S.C. 7'13 .(3) A.I.ll. l9'0S.C. 276\n\n14) !968 (8}l>.B.C. 163\n\n(5) 19f8 (8) D.B.C. 286.\n\nballot papers and to be assisted by the members of staff dealing A with election cases.\n\nHe was ordered to submit his report within two days after the completion of the recounting. It was ordered that on receipt of that report an opportunity will be given to both parties to be heard on that report and necessary orders will be passed thereon. The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there. Even before him some concessions were made io. respect of certain votes by both the parties-and some the Judge decided by himself. The Assistant Registrar hiinself dealt merely with votes which were conceded by one side or the olhet lis having been validly cast in favour of the opposite side.\n\nBefore him out of the votes which were held invalid by the Returlilng Officer, ~83 were agreed as rightly held invalid but there was dispute about\n\n804 votes (it thus appears that there was a mistake even in the counting of the invalid votes). From out of the Votes counted in rounds 8 to 11, 11,301 vO~ in favour of the respondent were conceded as valid arui 395 were disputed; 11,951. were conceded as valid in favour of the appellant lllld 567 were disputed.\n\nThus the total of these disputed voles amounting to over 1700 were decided by the Judge himself in the presep.ce of. the parties and their advocates, some on the basis of concessions, some as decided by the Judge himself, as already mentioned.\n\nIt is necessary to mention also that as in the recount from among the votes held invalid by the Returning officer petitioner conceded 65 were valid votes cast for the respondent He also conceded that 11 votes counted by the Returning Officer in his favour were valid votes cast\n\n...\n\nfor the respondent. 19 votes held by the Returning Officer aw validly cast ror the petitioner were conceded by him to be invalfd: The total came to 95. Similarly 126 votes cast for the petitioner I! but rejected by the Retuming Officer were found valid and 14. votes counted by the Returning Officer as cast for the respondent were found to havebeen really cast for the petitioner. These faots:\n\nclearly establish large scale mistakes in counting. As a result of all this it was finally found that the appellant had got 37,372 votes and the respondent 37,297 votes. Thus the majority obtained by the appellant was reduced from 127 to 75.\n\nIt may be remembered that one of the grounds on which the learned Judge had come to the conclusion that recount should be ordered was that the unlawful entry of a Minister, Mr. 0. F'.\n\nRaman into the counting hall when the counting was goin~ on, had caused dislocation and disturbance to the counting which was B likely to affect the accuracy of the counting. The learned Judge had dscussed this question at length and before us a special Leave :Petition was filed by the Returning Officer questioning the decision\n\nP. MALAICHAMI v. M. AMBALAM (Alagiriswami, J.) 1023\n\nof 1!ie learned Judge in the petition for recount as well as in the main election petition.\n\nWe had rejected that petition.\n\nBut we should make it clear that the learned Judge has been verv fair in his discussion of this matter. It seems to have been contended before him that Mr. Raman had a right to enter the place where the counting was going on, under Rule 66 of the Conduct of 8 Elections Rules in order to get the certificate. The Minister concerned. was the successful candidate for the Melur (south) Constituency, the counting for which was over at 5 a.m. on 11-3-71in the same building. At 8 a.m. began the counting of the votes for the Melur (North) Constituency, i.e. the election in dispute.\n\nMr. Raman was not a candidate in that election who was entitled c\n\nunder Rule 53 to ble present in the room where the countmg was going on.\n\nWe cannot understand the anxiety of the Returning Officer in questioning the orders of the learned Judge in the petition for recount as well as the main election petition.\n\nAfter all the concerned parties were fighting it out under the ostensible excuse of questioning the decision of the learned Judge regarding his interpretatipn of rules 53 and li6, it has been filed really due to the hypersensitiveness on the part of the Minister.\n\nIndeed the learned Judge has made fairly strong remarks against the Returning Officer in other respects.\n\nHe has stated at one place that the Returning Officer had failed in his duty, and at another place that the Returning Officer and the Assistant Returning Officer came forward with a story totally devoid of truth. Nothing is said in the E petition about all this which shows that our inference on this point is correct. The petition on behalf of the Returning Officer was wholly uncalled for.\n\nIt would appear that he is not a ft ee agent.\n\nAfter the counting was over, as already shown the majority in favour of the appella.nt was reduced from 127 to 75. Even so his election would have had to be sustained.\n\nBut on behalf of the respondent it was urged before the learned Judge that in a case where an election petitioner had applied not merely for setting aside the election of the successful candidate but also for declaring himself (the defeated candidate) as elected, it was the duty of the successful .candidate to have filed a Recrimination application under s. 97 of the Represi; rtation o~ the People Act.\n\nThis arnument was based on the decmon of this Court 10 Jabar Singh v~ Genda Lal(1j.\n\nThis Court there referred to the earlir decisions on the subject and by a majority cf 4 to 1 held that m such a case it was the successful candidate's duty to have filed a recrimination. petition under s. 97 which wold be ike couter petition.\n\nIt is unnecessary to set out the very mstrucllve discuss10n in that case at length.\n\nIt would be enough if the headnote alone is set out\n\n(I) (!964] (6) S.C.R. S4:\n\nSUPREME COURTS RI!PORTS\n\n[1973] 3 S.C.R.\n\n\"The appellant was declared elected having defeated the respondent by 2 votes. Thereafter the respondent filed an election petition. The respondent challenged the validity of the appellant's eltion on the ground of improper reception of votes in favour of the appellant and improper rejection votes in regard to himself.\n\nHis prayer was that the appellant's election should be declared void and a declaration should be made that the respondent was duly elected.\n\nThe appellant urged before the Tribunal that there had been improper rejection of the votes, and improper acceptance of the votes of the respondent, and his case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes.\n\nThe respondent objected to this course; his case was that since the appellant had not recriminated nor furnished security under s. 97. of the Act, it was not open to him to make this plea.\n\nThe Tribunal rejected the objection of the respondent and accepted the plea of the appellant.\n\nThe Tribunal re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted.\n\nThe result was that the respondent had not secured a majority of votes.\n\nThe Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. Both the appellant and the. respondent prefer - red appeals before the High Court against the decision of the Tribunal.\n\nThe High Court dismissed both the appeals and the decision o.f Tribunal was confirmed.\n\nHence the appeal.\n\nHeld : ( 1) The scope of the enquiry in a case falling under s. lOO(l)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of-the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of s. lOO(l)(d) itself. In facts. 97(1) has no application to .the case falling under s. 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what\n\nP. MALAICHAMI v. M. AMBALAM (A\"lagiriswami, J.) 1025\n\nthe clause requires to be considered is whether the election of the returned candidate has been materially afiected and nothing else .\n\n(ii) There are cases in which the election petition makes a double claim; it claims that the election of a returned candidate is void and aisO asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that s. 100 as well ass. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of s. 97 ( 1) therefore, is that in dealing with a composite election petition the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. In this connection the returned candidate is required to comply with the provisions of s. 97(1) ands. 97(2) of the Act. If the returned candidate does not recriminate as required by s. 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allowed to lead any evidence because he is precluded from i any pleas against the validity of the claim of the alternative candidate.\n\n(iii) The pleas of the returned candidate under s. 97 of the Act, have to be tried after a declaration has been made under s. 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate must be tiied within the narrow limits prescribed by s. 190 ( 1 )( d )(iii) and the latter part of the enquiry which is governed by s. 101( a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under s. 97 ( 1).\n\nBut even in cases to which s. 97 applies, the enquiry necessary while dealing with the dispute under s. 101 (a) will not be wider if the returned candidate bu failed to recriminate and in a case of this type the duty of the Election Tribunal will not be to .count and scrutinise Ill the votes cast at the election. As a result of r. 57, die Election Tribunal wall have to usume that every blllot P.aper which had not been rejected under r. 56, conati tuted one valid vote and it is on that buil the l!ndhli will have to be made under s. 10l(a). Thftore, it is clear\n\nthat in holding an enquiry either under s. 100( 1 )( d) (iii) or under s. 101 where s. 97 has not been complied with it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity.\"\n\nRajagopala Ayyangar, J. was the solitary Judge who dissented from the majority judgment and we have gone through his judgment with all the care and the respect that it deserves and we do not see that it throws much light on the subject. It seems to ignore s. 97. We may also point out that in Bhim Sen v. Gopali,( 1) which was considered in the above decision it was observed :\n\n\"As we have already pointed out, in his first written statement respondent I made a positive averment that no void votes had been allowed to be used by the returning officer and that the returning officer had fully discharged his duties under section 63. It is true that after it was discovered that he had received 37 void votes respondent I attempted to make an alleg2•lon that the appellant may likewise have received similar void votes, but it was too late then, because the time for making such an allegation by way of a recriminatory proceeding had elapsed and respondent I had failed to furnish the security of Rs. 1,000 as required by section 97(2) of the Act. If under these <:ircumstances respondent I was not allowed to pursue his allegation against the appellant, he is to blame himself.\" It was urged before this Court that in a subsequent decision in Shankar v. Sakharam(') this Court itself had differed from the . earlier dcision. The relevant sentence reads like this :\n\n\"We also think that the enquiry under s. 100(1)- ( d) (iii) is outside the purview of s. 97. On an enquiry under s. 100 (1) ( d) (iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under s. 97\".\n\nThis argument is clearly based on a misapprehension. The question that arises in this case did not arise there nor was the earlier decision in Jabar Singh's case referred to or distinguished. Indeed it was not necessary because they were dealing only with a case falling under s. 100, i.e. a case where the election of the successful candidate was sought to be set aside and not one also falling under s. 101 where the defeated candidate also wants that he should be declared to have been elected.\n\n(I) 1960 122) E.L.R. 288.\n\n12) [1965] (2) b.C.R. 403.\n\nP. MALAICHAMI v. M. Ai._IBALAM (Alagiriswami, J.)\n\nI 02T\n\nIn the present case apparently neither party was aware of the decision in Jabar Singh v. Genda Lal (supra) till after the counting was over. The learned Judge took the view that in the absence of a recrimination petition , under s. 97 the appellant was not entitled to question any votes which might have been improperly received on behalf of tlie respondent. If that had been done the appellant, as indicated earlier, would still have won by a majority of 7 5 votes but as he was not entitled to do so the result of leaving out of account votes improperly received on behalf of the respondent and taking into account only the votes which ought to have gone to the respondent, which had been improperly rejected it was found that the respondent had 96 votes more than the appel lant and he was declared elected.\n\nThe decision in J abar Singh v. Genda Lal (supra) has received reconsideration at the hands of this Court with approval again in Ravindra Nath v. Raghbir Singh(l) where it was observed :\n\n\"The object of s. 97 is to enable recrimination when a seat is claimed for the petitioner filing the election petition or any other candidate. In his election petition the petitioner may claim a declaration that the election of aH or any of the returned candidates is void on one or more of the grounds specified in sub-s. ( 1) of s. 100 and may additionally claim a further declaration that he himself or any other candidate has been duly elected on the grounds specified in s. 101 (see ss. 81, 84, 98, 100 and 101). It is only when the election petition claims a declaration that any candidate other than the retnrned candidate has been duly elected that s. 97 comes into play. If the respondent desires to contest t1iis claim by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to s. 97.\n\nThe notice of recrimination is thus in substance a counter netition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by s. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under ss. 117 and 118 in the case of an election petition.\n\n(I) [1968) (I) S.C R. 104.\n\nLooking at the object and scheme of s. 97 it is mani fest that the provisions of ss. 117 and 118 must be applied mutatis mutandis to a proceeding under s. 97.\n\nThe recriminator must produce 11 government treasury receipt showing that a deposit of Rs. 2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination. As the notice of zecriminati9n cannot be sent by post, it must be filed\n\nbefore the Tribunal, and reading s. 117 with consequential adaptations for the purposes of the proviso to s. 97 (I), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination. It follows that the recriminator must give the security referred to in s. 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to s. 97 ( 1).\n\nIf the recriminator fails to give the requisite security under s. 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under s. 97 and the notice of recrimination stands virtually rejected.\" Mr. K. K. Venugopal, appearing on behalf of the appellant llllade four submissions :\n\n1. Section 97 has no application to a case where a prayer is for total count and rescrutiny.\n\n2. Section 97 has no application to the present case where the returned candidate let in or did not have to let in any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the respondent's protest.\n\n3. Since no case has been made out in respect of\n\nindividual votes and no finding given for inspect ing individual votes the petitioner would not be entitled to the benefit of the decision in Jabar Singh's case and Jiis right is only to a general recount or none at all.\n\n4. The respondent is estopped from questioning the result of the recount bec 0 use of mutual concessions.\n\nThough stated in a different form the sum and s.ubstance <?f 1e\n\nvery vigorous attempt on behalf of the appellant 1s to question 1n\n\nP. MALAICHAMI v. M. AMBALAM (Alagiriswami, /.) 1029.\n\neffect the validity of the decision in so far as it is held that s. 97 is applicable to the facts of this case. He even went so far as to suggest that this case is totally different from the one in Jabar Singh v. Genda Lal (supra) and the whole question, if necessary should be reconsidered by a much larger Bench in view of Justice Rajagd'pala Ayyangar's di.ssenting judgment. He finally urged that the democratic process should be allowed to have full sway and no mere technicality should b~ allowed to come in the way of justice being done.\n\nThe last appeal is particularly interesting. Courts in general are averse to allow justice to be defeated on a mere technicality~ But in deciding an election petition the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the Statute under which it is conferred the power to hear election petitions. An election petition, as has been pointed out again and again, is not an a.ction at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices (see the decisions in Kamaraja .\n\nNadar v. Kunju Thevar,(1) Venkateswara v. Narasimha( 2 ) and Ch. Subbarao v. Member, Election Tribunal('). We may, therefore, look into the law regarding this matter. Under s. 81 of the Representation of the People Act, 1951 \"an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (I) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.\" Section 8 3 reads :\n\n\"( 1) An election petition- ( a) shall contain a concise statement of the material facts on which the petitioner relies; (bl\n\n( c) shall be signed by the petitioner and verified in the manner laid down in the Code\n\n(I) [1959] S.C.R. 583 at 596.\n\n(2) [1969] (1) S.C.R. 679 at 685\n\n(3) !964 D.E.C. 270.\n\nof Civil Procedure, 1908 ( 5 of 1908) for A the verification of pleadings. (2) ..\n\nSection 84 reads :\n\n\"A petitioner may, in addition to claiming a declaration that the election of all or any of the returned .candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.\" :section 97 reads :\n\n\" ( 1 ) When in an election petition a declaration .that any candidate other than the returned candidate has\n\nbeen duly elected is claimed, the returned candidate or :any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had :been presented calling in• question his election.\n\nProvided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of lais intention to do so and has also given the security and the further security referred to in sectiOlll 117 and 118 respectively.\n\n( 2) Ewry notice referred to in sub-section (1 ) 1lhall be accompanied by the statement and particulars required by section 83 in the case of an dection petition and shall be signed and verified in like manner.~\n\ntion 100 reads: -\n\n\" ( 1) Subject to the provisions of sub-section (2) if .the High Court is of opinion- ·\n\n(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or\n\n(b) that any co.rrupt practi_ce has been committed by a returned candidate or his election agent or by any other person with the consent of a\n\nrturned candidate or his election agent; or H\n\n( c) that any nomination has been improperly rejected; or\n\nP. MALAICHAMI v. M. AMBALAM (Alagiriswami, I.)\n\nI 031\n\n( d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- ( i) by the improper acceptance of any nomiation, or\n\n(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or\n\n(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or\n\n(vi) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.\n\n( 2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied- ( a) that no such corrupt practice was committed at\n\nthe election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; ( c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and ( d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.\" Section 10 I reads :\n\n\"If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion- ( a) that in fact the petitioner or such other candidate received a majority of the valid votes; or\n\n(b) that _but for the votes obtained by the returned A candidate by corrupt practices the petitioner or such other candidate would have obtained a majty of the valid votes;\n\nthe High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have B been duly elected.\" In the present case the grounds for setting aside the election of the petitioner are that the result of the election in so far as the appellant was concerned has been materially affected : (l\") ···························· c (11 •• ) ............................\n\n(iii) by improper reception, refusal or rejection of votes which is void, or\n\n(iv) by non-compliance with the provisions of the Constitution or of the Act or of any rules or D orders made under the Act.\n\nThe only ground on which the defeated candidate could be declared to be elected is under s. 101 (a) that in fact he had received a majority of valid votes. But it is .in deciding who has got the majority of valid votes that s. 97 comes into play. When in an election petition a declaration that any candidate other than E' the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. This right the appellant had but this ri_ght is subject to the provision that he shall not be F entitled to give evidence to prove that the election of the petitioner in this case i.e. the respondent would have been void if he had been the returned candidate and the petitioner had presented petition calling in question the election unless he had given notice of his intention to give such evidence and also given security and the further security referred to in ss. 117 and 118 respectively, G and every such notice has to accompanied by the statement and particulars required ander s. 83 in case of an election petition and shall be_ signed and verified in the like manner. None of these things was done in this case. The petition by the respondent had been filed on 23-4-1971. The orders for the appearance of the respondent were passed on 12-7-1971. The appellant, who was the respondent in that petition, should have given notice under H s. 97 within 14 days of his appearance i.e. on 26-7-1971 and also C09lplied with the other requirements specified therein. The\n\nP. MALAICIWQ v •. 1f, .AMBALA)f (A/aglrlswaml, J.) 1033 ,. '\n\niuuea wm-e framed on 27.· 7·1971, tho reco1111t was ordered OD 3·2·1972 and tho judament itself was pronOliDcod on 13·3·1972.\n\nIt was on 10·3 1972 that an attempt was made to file a recrimi• nation petition with a petition to excuse the delay. But even then the other requisites of s. 97 like giving 11eeurity or the petition being accompanied statement and particulars required by s. 83\n\nwere not complied with. A special leave petition was filed in this Court again applying for permission to receive a recrimination petition. There is, thus, no doubt at all that the appellant did not comply with the requirements of s. 97.\n\nThe question still remains whether the requirements of s. 97 have to be satisfied in this case. It is argued by Mr. Venugopal C that the gravamen of the respondent's petition was breach of many of the election rules and that he asked for a total recount,\n\na request to which the appellant had no objection and that there was, therefore, no rule or need tor filing a r:crimination petition under s. 97. This, we are afraid, is a complete mis reading of the petition. No doublt the petitioner has asked for J a recount of votes. It may legitimatly be pesumed to me<.1n a recount of all the votes. but such a recount is asked for for the purpose of obtaining a declaration that the appellant's election was void and a further declaation that the respondent himself had been elected. This aspect of. the matter should not be lost sight of. Now, when the respond-nt a1ked for a recount, it was not a mee mechanical process that he was asking for. The very E grounils which he urged in suppJrt of his petition (to which we have referred at an earlier stage} as well as the application - for recount and the various grounds on which the learned Judge felt that a recount should be ordeed showed that many mistakes were likely to have arisen in the counting. and as revealed by the instances which the learned Judge himself looked into and decMed.\n\nF It may be useful at his stage to set out Rule 56 of the Conduct <>f Election Rules, 1961 :\n\n\"56. Counting. of Votes.-(1) Subject to such j!eneral or special directions, if any. as may be P, iven by Election commission in this behalf, the ballot papers taken-out of all boxes used in a constituency shall De mixed together and then arranged in convenient bundles and scrutinised.\n\n(2) The returning oftker shall rej~ a ballot paper- ( a) if it bears any mark or writing by whic>J the\n\nelector can be identified, or H\n\n(b) if, to indicate the votes, it bears no mark at all or bears mark made otherwise than with the instrument supplied for the purpose, or ll-l,79'1SupCI '73\n\n(c)\n\n(d)\n\n(e)\n\n(f)\n\n(g)\n\nif vo1es are given 0.11 it in favour of more than one candidate, or if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or if it is a spurious ballot paper, or\n\nif it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or if it bears a serial number, or is of a design, different lrom the serial number, or , as the case may be, design, of the ballot papers authorised for use at the pa'1icular polling station, or\n\n(h) if it does not bear both the mark and the signature which it should have borne under the provhions of sub-rule (I) of rule 38; Provided that where the returning officer is satisfied that any such defect as is mentioned in clause ( g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely op. the ground ot such defect : Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.\n\n(3) Before rejecting any ballot paper under subrule (2), the returning officer shall allow each counting agent present a reasonable ouportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.\n\n( 4) The returning officer shall endorse on every ballot paper which he rejects the word \"Rejected\" and the grounds of rejection in abbreviated lorni either in his own hand or by means of a rubber stamp and shall initial such endorsement.\n\n( 5) All ballot papers rejected under this rule shall be bundled !Dgether.\n\n( 6) Every ballot paµe1 which is not rejected under this rule shall be counted as one valid vote :\n\nI!:\n\nI'. MALAICHAMI v. M. AMBALAM (Alagiris1vami, J.)\n\nI 035\n\nProvided that no cover containing tendered ballot papers shall be opend and ;; o such paper shall be counted. en After the countmg cf all ballot pape:s contained in all the ballot boxes used in a constituency has been c0mpleted, the returning officr shall make the entries in ii rcsu!rsheet in Form 20 and announce the particulars.\n\ni:.xplanation.-For the purpose of this rule, the expression \"cnstituency\" shall, in relation to an election from a parliamentary constituency, mean the assembly constituency comprised therein.\"\n\nSo, when counting goes on the returning officer may have rejected a ballot paper on any one of the grounds mentioned in sub-rule ( 2) of that rule. He might have made a mistake or his decision may be wrong on any one Otf the points. That is what explains\n\nthe large number of concessions made by either side when the recount was made before the Asdstant Registrar of the High Court as well as before the learned Judge.\n\nSo, it is not proper to interpret the respondent's prayer for recount as a reque&t for a mere mechanical process of counting. It was counting contemplated under Rule 56 with all its implications that he was asking for. The very grounds on the basis of which the recount was ordered by the learned Judge show that there was a possibility of mistakes having arisen under anyone of_ the grounds set out in Rule 56(2) clauses (a) to (h) and it is to have them taken into account and decided correctly that the respondent wanted a recount.\n\nNow, when he wants a recount for the purpose of setting aside the appellant's election he necessarily has got to have not merely the benefits of votes which would have originally gone to him but which had been wrongly giveri to the appellant but also all votes which had been cast in his favour (the respondent) \\iut had been rejected wrongly on one or other of the grounds mentioned in Rule 56(2) clauses (a) to (h). So, it was necessary for the purpose of the respondent's case not merely that votes which were held invalid should be re-scrutinised but also votes which had been held to have been cast in favour of the appellant. The iinproper reception or rejection, therefore, would include not merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should not have been received and his vote rejected where it should not have been rejected.\n\nThe improper rejection or reception contemplated under s. 100 ( 1 )( d )(iii) would include mistakes or wrong judgments made by the returning officer while counting and exercising his powers under Rule 56(2) clauses (a) to (h). The fact, therefore, that the respondent asked for recounting of all the votes does not mean that he wanted also that votes which had\n\nbeen wrongly held to have been cast in his favour but should have gone to the appellant as also votes which had been rejected, but which should have gone to the appellant should be taken into account.\n\nThe respondent was interested ii! •no such thing.\n\nHe made no such prayer. It was only the appellant that was interested and bound to do it if he wanted to defeat the respondent's claim that he should be declared elected and s. 97 is iljtended for just such a purpose.\n\nIt was asked what was the purpo; e and where was the need for the appellant to have filed a recrimination under s. 97 and what be could have filed when the respondent had asked for a total recount. What we have stated above furnishes the necessary answer.\n\nThe appellant knew not only that the respondent wanted his election to be set aside but also that he wanted himself (the respondent) to be declared elected, He should have, therefore, stated whatever material was nece>sary to show that the respondent, if he bad been the successful candidate and the petition had been presented calling in question his electi<>n, his election would have been void, in other words comply with sei:tion 83.\n\nHe could have !tated therein setting out that while he bad 1110 objection to a recount to be ordered (we have already shown that he strongly opposed the recount) there were many votes which would have rightly gone to him (the appellant) which have wrongly been givt:n to the respondent, that there were many votes which should have rightly gone to him but which have been improperly rejected. He should also have complied with the other requirements of section 97. If he had done that that could have bieen taken into consideration. There was no difficulty at all about his doing all this. His contention that he had no objection to the recount 11!\\d there' was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under section 97 (of course, within 14 days of bis appearance). It was not at the stage when the petitioner filed bis application for recount that the opporunity or need for a petition under s. 97 arose.\n\nIt was then urged that when all the material was before the court it was unnecessary for him to have done so. As we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which bas specifically created that right. If the appellant wanted an opportunity to question the respondent's claim that be should be declared elected he should have followed the procedure laid down in s. 97. Ir. this connection it is interesting to note that in the decision in Jabar Singh v. Genda Lal (supra) the successful candidate in bis own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, iri regard to which details were given,\n\nP. MALAICHAMI v. M. AMBALAM (A/agiriswami, J.) 1037\n\nand that similarly 11Cveral votes were wrongly accepted in favou1 of the election petitioner 81ld in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and\n\nrecount were made of the valid votes received by each, it would be found that he-the returned candidate-had in fact, obtained a larger number of votes than the election petitioner and for this reason he submitted that the election petition ought to be dismissed.\n\nIn spite of this it was held that he had to fail because he had not filed a recrimination petition under s. 97. So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that pwpose, that procedure must be followed if he is to obtain that relief.\n\nWhat we have j, ointed out just now shows that it is not a ques lion of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election-petitioner, who had claimed the seat for himself unless the successful candidate l1ad filed a petition under s. 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under th~ Act and the rules.\n\nPoint 3 raised by the appellant has no sutance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection.\n\nThe decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himseli scrutinising and deciding about all disputed cases. Indeed, there was llO need for any evidence except\n\na proper scrutiny of the votes and a correct decision based on such scrutiny as to the cMidldate for whom it was cist .or. whether it was invalid. We may at the risk •of repetition point out that the pfQcess of reco1Jllting included decision regarding the question of in\\proper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for G suggesting that all that the respondent could have asked for was\n\nei!her a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging \"Let all v'.:tes be recounted and whoever gets more votes be declared elected.\"\n\nNor do we think that any question of estoppel arises. Estoppel may arise in respect Of each individual vote conceded by one party or the other as valid and Riven in favour of the other iu the sense that having conceded that a disputed vote .should have gone to H\n\none or other ol the parties the party who made that conce.sion cannot RO 1-ck on it. But where the law pi:ovides that no evidence\n\ncan be given about the improper reception of votes in favour of A the defoated candidate who bad claimed a seat for himself unle& the successful candidate had complied with s.97, no question of eslop11el CJrises.\n\nCo11cession is akin to admission an'i the use of such an admission would be evidence. What is barred under the proviso to s.97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondent's admissions B or leading independent evidence. In either case it would be giving evidence. And since giving al. evidence is barred, the concessioas .:nnnot be used as evidence in favour of the app::llant. This is what the learned Judge has very clearly pointed out in. his order. We have earlier quoted from the decision in Bhim Sen v. Gopali\n\n(supra) where the provisions of s. 97 had not been complied with. c Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the tespondent\n\nmight have been counted, the evidence furnished by such votes, was not a admissible must because of failure to comply with the provisions of section 97.\n\nFinally, we must deal with the appeal made to us that the D justice should be done irrespll.(:tive of technicalities. 1ustice got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be actiJ!.g without jllris diction.\n\nWe are, therefore, satisfied that the learned 1udge was right I: in holding that though a general recount had been ordered and an account taken of the valid votes given for both the candidates, it was not possible to take into account any vote in favour of the appellant because al. bis failure to comply with section 97. Nor arc we satisfied that we would be justified in ordering that this case should bie reconsidered by a larger Bench.\n\nF This appeal is, therefore, dismissed.\n\nThe appellant will pay the first respondent's costs. Special Leave petition 1347 /72 preferred against Application No. 648/72 in Election Petition o_s. No. 2/1971 is dismissed.\n\nS.B.W.\n\nAppeal dlsnt/sf, P.", "total_entities": 140, "entities": [{"text": "P.MALAICHAMI", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "P. MALAICHAMI", "offset_not_found": false}}, {"text": "M. ANDI AMBALAM & ORS", "label": "RESPONDENT", "start_char": 17, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "M. ANDI AMBALAM & ORS", "offset_not_found": false}}, {"text": "Sec. 91", "label": "PROVISION", "start_char": 133, "end_char": 140, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 91", "label": "PROVISION", "start_char": 427, "end_char": 434, "source": "regex", "metadata": {"statute": null}}, {"text": "s 97", "label": "PROVISION", "start_char": 969, "end_char": 973, "source": "regex", "metadata": {"statute": null}}, {"text": "s 97", "label": "PROVISION", "start_char": 1725, "end_char": 1729, "source": "regex", "metadata": {"statute": null}}, {"text": "s 97", "label": "PROVISION", "start_char": 1825, "end_char": 1829, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 2361, "end_char": 2368, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 2452, "end_char": 2459, "source": "regex", "metadata": {"statute": null}}, {"text": "Jabar Slngh'a", "label": "WITNESS", "start_char": 2911, "end_char": 2924, "source": "ner", "metadata": {"in_sentence": "97 has no application to the present case where the returned candidate let in or did not have ro let i, n any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the n!spondents protest; iii) Since am case has been made out in respect of individual votes 111!<1 no finding given for inspecting individual votes liie petitioner would not be entitled to the benefit of the deision ;,; Jabar Slngh'a C\"1e '[(19614) 6 S.C.R. 54] and his .ri$fit is only to a gener_al .recount or none at all; (iv) 'The respondent \" estopped from questiorung the result of the recount because of mutual concessions; ( v) The present case is wholly different from the one in Johar Singh v' Genda Lal and the whole question should be reconsidered by a large;\n\nP, MALAICHAMI v. M. AMBALAM (Alagiriswamy, J.) 1017\n\nbench in view of Justice Rajagopala Ayyangar's dissenting judgment; and (vi) The democratic process should be allowed to have full sway and no more technicality should be allowed to come in the way of jusfice being done."}}, {"text": "Rajagopala Ayyangar", "label": "JUDGE", "start_char": 3342, "end_char": 3361, "source": "ner", "metadata": {"in_sentence": "97 has no application to the present case where the returned candidate let in or did not have ro let i, n any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the n!spondents protest; iii) Since am case has been made out in respect of individual votes 111!<1 no finding given for inspecting individual votes liie petitioner would not be entitled to the benefit of the deision ;,; Jabar Slngh'a C\"1e '[(19614) 6 S.C.R. 54] and his .ri$fit is only to a gener_al .recount or none at all; (iv) 'The respondent \" estopped from questiorung the result of the recount because of mutual concessions; ( v) The present case is wholly different from the one in Johar Singh v' Genda Lal and the whole question should be reconsidered by a large;\n\nP, MALAICHAMI v. M. AMBALAM (Alagiriswamy, J.) 1017\n\nbench in view of Justice Rajagopala Ayyangar's dissenting judgment; and (vi) The democratic process should be allowed to have full sway and no more technicality should be allowed to come in the way of jusfice being done.", "canonical_name": "Rajagd'pala Ayyangar"}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 3630, "end_char": 3637, "source": "regex", "metadata": {"statute": null}}, {"text": "s 97", "label": "PROVISION", "start_char": 3689, "end_char": 3693, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 117 and 118", "label": "PROVISION", "start_char": 3926, "end_char": 3946, "source": "regex", "metadata": {"statute": null}}, {"text": "s 83", "label": "PROVISION", "start_char": 4021, "end_char": 4025, "source": "regex", "metadata": {"statute": null}}, {"text": "s 100", "label": "PROVISION", "start_char": 5652, "end_char": 5657, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 6051, "end_char": 6058, "source": "regex", "metadata": {"statute": null}}, {"text": "s 97", "label": "PROVISION", "start_char": 6720, "end_char": 6724, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 7481, "end_char": 7488, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 7613, "end_char": 7620, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 97", "label": "PROVISION", "start_char": 7869, "end_char": 7876, "source": "regex", "metadata": {"statute": null}}, {"text": "lobar Sing", "label": "OTHER_PERSON", "start_char": 8019, "end_char": 8029, "source": "ner", "metadata": {"in_sentence": "1038B]\n\n( 5) There is no justification for ordering that the case should be heard by a larger bench for re-consideration of the decision in lobar Sing/i's case."}}, {"text": "S. 116A", "label": "PROVISION", "start_char": 9076, "end_char": 9083, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 9091, "end_char": 9129, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "K. K. Venugopal", "label": "LAWYER", "start_char": 9261, "end_char": 9276, "source": "ner", "metadata": {"in_sentence": "K. K. Venugopal and A. Subhashini, for the appellant.", "canonical_name": "K. K. Venugopal"}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 9281, "end_char": 9294, "source": "ner", "metadata": {"in_sentence": "K. K. Venugopal and A. Subhashini, for the appellant."}}, {"text": "T. N. Srinivasa Varadacharya", "label": "LAWYER", "start_char": 9316, "end_char": 9344, "source": "ner", "metadata": {"in_sentence": "T. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No."}}, {"text": "G. Viswanathan", "label": "LAWYER", "start_char": 9346, "end_char": 9360, "source": "ner", "metadata": {"in_sentence": "T. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 9362, "end_char": 9372, "source": "ner", "metadata": {"in_sentence": "T. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No."}}, {"text": "R. Chandrasekhara", "label": "LAWYER", "start_char": 9377, "end_char": 9394, "source": "ner", "metadata": {"in_sentence": "T. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 9419, "end_char": 9431, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and A. V. Rangam, for respondents Nos."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 9436, "end_char": 9448, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and A. V. Rangam, for respondents Nos."}}, {"text": "ALAGIRISWAlllI", "label": "JUDGE", "start_char": 9580, "end_char": 9594, "source": "ner", "metadata": {"in_sentence": "p, MALAICHAMI v. Ill. AMBALAM (A/agiriswami, I.) 1019\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAlllI, .1."}}, {"text": "Madurai district", "label": "GPE", "start_char": 9751, "end_char": 9767, "source": "ner", "metadata": {"in_sentence": "This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes, as against 37,210 received by the respondent 3 ,3 81 votes were held invalid."}}, {"text": "23-4-1971", "label": "DATE", "start_char": 9986, "end_char": 9995, "source": "ner", "metadata": {"in_sentence": "The respondent filed an election petition on 23-4-1971 not only questioping the election of the appellant but also claiming the seat for himself."}}, {"text": "O.P. Raman", "label": "OTHER_PERSON", "start_char": 13571, "end_char": 13581, "source": "ner", "metadata": {"in_sentence": "(iii) The unlawful entry of Mr. O.P. Raman into the counting hall, when the counting was going on, caused dislocation and disturbance to the counting, which was likely to have affected the accuracy in the counting."}}, {"text": "19-2-1972", "label": "DATE", "start_char": 17097, "end_char": 17106, "source": "ner", "metadata": {"in_sentence": "The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there."}}, {"text": "23-2-1972", "label": "DATE", "start_char": 17115, "end_char": 17124, "source": "ner", "metadata": {"in_sentence": "The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there."}}, {"text": "24-2-1972", "label": "DATE", "start_char": 17126, "end_char": 17135, "source": "ner", "metadata": {"in_sentence": "The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there."}}, {"text": "25-2-1972", "label": "DATE", "start_char": 17137, "end_char": 17146, "source": "ner", "metadata": {"in_sentence": "The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there."}}, {"text": "28-2- 1972", "label": "DATE", "start_char": 17151, "end_char": 17161, "source": "ner", "metadata": {"in_sentence": "The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there."}}, {"text": "Raman", "label": "OTHER_PERSON", "start_char": 20084, "end_char": 20089, "source": "ner", "metadata": {"in_sentence": "It seems to have been contended before him that Mr. Raman had a right to enter the place where the counting was going on, under Rule 66 of the Conduct of 8 Elections Rules in order to get the certificate."}}, {"text": "11-3-71", "label": "DATE", "start_char": 20371, "end_char": 20378, "source": "ner", "metadata": {"in_sentence": "was the successful candidate for the Melur (south) Constituency, the counting for which was over at 5 a.m. on 11-3-71in the same building."}}, {"text": "s. 97", "label": "PROVISION", "start_char": 22160, "end_char": 22165, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 22497, "end_char": 22502, "source": "regex", "metadata": {"statute": null}}, {"text": "S4", "label": "PROVISION", "start_char": 22699, "end_char": 22701, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 23608, "end_char": 23613, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)(d)(iii)", "label": "PROVISION", "start_char": 25165, "end_char": 25182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 25727, "end_char": 25733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 25880, "end_char": 25885, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 97", "label": "PROVISION", "start_char": 25903, "end_char": 25913, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 26022, "end_char": 26027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97(1)", "label": "PROVISION", 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"PROVISION", "start_char": 29084, "end_char": 29097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100(1)", "label": "PROVISION", "start_char": 29467, "end_char": 29476, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 29515, "end_char": 29520, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 29542, "end_char": 29548, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 29735, "end_char": 29740, "source": "regex", "metadata": {"statute": null}}, {"text": "Jabar Singh", "label": "OTHER_PERSON", "start_char": 29887, "end_char": 29898, "source": "ner", "metadata": {"in_sentence": "The question that arises in this case did not arise there nor was the earlier decision in Jabar Singh's case referred to or distinguished."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 30021, "end_char": 30027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 101", "label": "PROVISION", "start_char": 30146, "end_char": 30152, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 30585, "end_char": 30590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 31372, "end_char": 31377, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 100", "label": "PROVISION", "start_char": 31688, "end_char": 31694, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 101", "label": "PROVISION", "start_char": 31833, "end_char": 31839, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 81, 84, 98, 100 and 101", "label": "PROVISION", "start_char": 31845, "end_char": 31872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 32014, "end_char": 32019, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 32412, "end_char": 32417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 32731, "end_char": 32736, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 117 and 118", "label": "PROVISION", "start_char": 32906, "end_char": 32921, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 33024, "end_char": 33029, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 117 and 118", "label": "PROVISION", "start_char": 33069, "end_char": 33084, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 33140, "end_char": 33145, "source": "regex", "metadata": {"statute": null}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 33308, "end_char": 33329, "source": "ner", "metadata": {"in_sentence": "2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination."}}, {"text": "s. 117", "label": "PROVISION", "start_char": 33506, "end_char": 33512, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 33579, "end_char": 33584, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 33815, "end_char": 33821, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 33953, "end_char": 33958, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 34029, "end_char": 34035, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 34129, "end_char": 34134, "source": "regex", "metadata": {"statute": null}}, {"text": "K. K. Venugopal", "label": "LAWYER", "start_char": 34199, "end_char": 34214, "source": "ner", "metadata": {"in_sentence": "Mr. K. K. Venugopal, appearing on behalf of the appellant llllade four submissions :\n\n1.", "canonical_name": "K. K. Venugopal"}}, {"text": "Section 97", "label": "PROVISION", "start_char": 34284, "end_char": 34294, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 97", "label": "PROVISION", "start_char": 34378, "end_char": 34388, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 35275, "end_char": 35280, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajagd'pala Ayyangar", "label": "JUDGE", "start_char": 35543, "end_char": 35563, "source": "ner", "metadata": {"in_sentence": "He even went so far as to suggest that this case is totally different from the one in Jabar Singh v. Genda Lal (supra) and the whole question, if necessary should be reconsidered by a much larger Bench in view of Justice Rajagd'pala Ayyangar's di.ssenting judgment.", "canonical_name": "Rajagd'pala Ayyangar"}}, {"text": "Kamaraja", "label": "OTHER_PERSON", "start_char": 36662, "end_char": 36670, "source": "ner", "metadata": {"in_sentence": "It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices (see the decisions in Kamaraja ."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 36847, "end_char": 36852, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 36860, "end_char": 36898, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 100", "label": "PROVISION", "start_char": 37033, "end_char": 37044, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 101", "label": "PROVISION", "start_char": 37049, "end_char": 37060, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 37370, "end_char": 37379, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Section 84", "label": "PROVISION", "start_char": 37776, "end_char": 37786, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 97", "label": "PROVISION", "start_char": 38014, "end_char": 38024, "source": "regex", "metadata": {"statute": null}}, {"text": "section 83", "label": "PROVISION", "start_char": 38887, "end_char": 38897, "source": "regex", "metadata": {"statute": null}}, {"text": "Constitution or this Act or the Government of Union Territories Act, 1963", "label": "STATUTE", "start_char": 39230, "end_char": 39303, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10", "label": "PROVISION", "start_char": 41020, "end_char": 41030, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 101", "label": "PROVISION", "start_char": 42297, "end_char": 42303, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 42432, "end_char": 42437, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 117 and 118", "label": "PROVISION", "start_char": 43284, "end_char": 43299, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 43405, "end_char": 43410, "source": "regex", "metadata": {"statute": null}}, {"text": "-4-1971", "label": "DATE", "start_char": 43592, "end_char": 43599, "source": "ner", "metadata": {"in_sentence": "The petition by the respondent had been filed on 23-4-1971."}}, {"text": "12-7-1971", "label": "DATE", "start_char": 43664, "end_char": 43673, "source": "ner", "metadata": {"in_sentence": "The orders for the appearance of the respondent were passed on 12-7-1971."}}, {"text": "s. 97", "label": "PROVISION", "start_char": 43764, "end_char": 43769, "source": "regex", "metadata": {"statute": null}}, {"text": "26-7-1971", "label": "DATE", "start_char": 43811, "end_char": 43820, "source": "ner", "metadata": {"in_sentence": "The appellant, who was the respondent in that petition, should have given notice under H s. 97 within 14 days of his appearance i.e. on 26-7-1971 and also C09lplied with the other requirements specified therein."}}, {"text": "27.· 7·1971,", "label": "DATE", "start_char": 43975, "end_char": 43987, "source": "ner", "metadata": {"in_sentence": "iuuea wm-e framed on 27.·"}}, {"text": "s. 97", "label": "PROVISION", "start_char": 44236, "end_char": 44241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 44336, "end_char": 44341, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 44574, "end_char": 44579, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 44637, "end_char": 44642, "source": "regex", "metadata": {"statute": null}}, {"text": "Venugopal C", "label": "OTHER_PERSON", "start_char": 44698, "end_char": 44709, "source": "ner", "metadata": {"in_sentence": "It is argued by Mr. Venugopal C that the gravamen of the respondent's petition was breach of many of the election rules and that he asked for a total recount,\n\na request to which the appellant had no objection and that there was, therefore, no rule or need tor filing a r:crimination petition under s. 97."}}, {"text": "s. 97", "label": "PROVISION", "start_char": 44977, "end_char": 44982, "source": "regex", "metadata": {"statute": null}}, {"text": "Election Rules, 1961", "label": "STATUTE", "start_char": 45993, "end_char": 46013, "source": "regex", "metadata": {}}, {"text": "s. 100", "label": "PROVISION", "start_char": 51027, "end_char": 51033, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 51762, "end_char": 51767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 51919, "end_char": 51924, "source": "regex", "metadata": {"statute": null}}, {"text": "section 97", "label": "PROVISION", "start_char": 52956, "end_char": 52966, "source": "regex", "metadata": {"statute": null}}, {"text": "section 97", "label": "PROVISION", "start_char": 53429, "end_char": 53439, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 53614, "end_char": 53619, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 54065, "end_char": 54070, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 54966, "end_char": 54971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 55620, "end_char": 55625, "source": "regex", "metadata": {"statute": null}}, {"text": "s.97", "label": "PROVISION", "start_char": 57503, "end_char": 57507, "source": "regex", "metadata": {"statute": null}}, {"text": "s.97", "label": "PROVISION", "start_char": 57666, "end_char": 57670, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 97", "label": "PROVISION", "start_char": 58156, "end_char": 58161, "source": "regex", "metadata": {"statute": null}}, {"text": "section 97", "label": "PROVISION", "start_char": 58464, "end_char": 58474, "source": "regex", "metadata": {"statute": null}}, {"text": "section 97", "label": "PROVISION", "start_char": 59120, "end_char": 59130, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_206_210_EN", "year": 1973, "text": ".,, 206\n\nPILANI INVESTMENT CORPORATION LTD. v.\n\nTHE COMMISSIONER OF INCOME TAX (CENTRAL) January 9, 1973\n\n[P. ]AGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\n/11co11; e-tax Act (11 of 1922), s. 23A and Explanation-Men1ora,1- ::iu1n and Articles of Association e1npo1vering directors to refu~ to. register transfer of shares without assigning any reason-It elen:ent vf free trc.nsfer eliminated.\n\nThis Court, in Shree Krishna Agency Ltd. v.\n\nC. f. T. (Central) Calcutta,· (1971) 82 I.T.R. 372, had held that in the absence of evidence to show that the directors had been exercising their pov.'er to decline to register any transfer of shares freely and had thus ''ll'tually eliminated t)le element of free transferability of the shares in the company, the mere existe, oce of a power in the :t-.iemorandum and Articles of Association giving such a discretion could not be said to <1fiect the free transferability of the shares as contemplated by the Explanation to s. 23A, of the Incometax Act, 1972. [20GD-E]\n\nIn the present case, more than 75% of the shares of the assessee con1pany \\\\'ere held not by a group. of partners but by two public curllpanies i, n which the Tribunal found, the public were substantially interested : there \\vas no material to show that any group acting in concert was in control of the assessee-company, and,- though the 1v1emorandum and Articles of Association gave a discretion to the directors to decline to register a transfer of shares. thef'e was\n\n!DO evidence to show that the directors had eliminated the element of transferability of shares.\n\nSliree Krishna Agency Lt.ti. v. Co111n1issioner of Jncon1e-tax, (Central) Calcwta, [1971] 82 l.T.R. 372, followed\n\nConunissioner of Jnco1ne-tax, West Bengal v. Tona late Co. Ltd., [1963] 48 J.T.R. 902, overruled.\n\nA ,\n\nEe.st India Corporation Ltd. v. t:ommissione.r of InccnJetax, [1966] F 61 I. T. R. 16 and Raghuvanshi Mi!is Ltd. v, Commissioner of Jncometax. [1969] 74 I.T.R. 823, approved.\n\nCommissioner of Income-tax v. Jubilee Mills Ltd., (1963] 48 I.T.R. 9, referred to. . ·\n\nCIVIL APPELLATE JURISDICTION : Ci:vil :Appeal Nos. 2177 & 2178 of 1969.\n\nAppeals by certificate from the judgment and order dated February 24, 1969 of the Calcutta High Court in Income-tax Reference Nos. 210 and 211 of 1964.\n\nB. Sen, Leila Seth, U. K. Khai/an and B. P. Maheshwari for\n\nthe appellant.\n\nB. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. . /\n\n_,, \\\n\nThe Judgment of the Courts was delivered by\n\nKHANNA, J. These two appeals on certificate are directed against the judgment of Calcutta High Court whereby it answered the following question in the affirmative and in favour of the revenue: .- . \"Whether in the facts and circumstances of the case, the provisions of section 23A were rightly invoked.\" The matter relates to assessment years 1952-53 and 1953-54.\n\nIt would, however; be convenient to set out the facts relating to the year 1952-53 because the decision in regard to the assessment for that year would also govern the assessment for the following . year. The assessee-appellant is a limited company. Proceedings under section 23A of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act) were started against the appellant company as it had not declared any dividend during the year. The Income Tax Officer found that the income of the assessee company had been tletermined in regular assessment to be Rs. 22,65,227 and despite that it had not declared any dividend. The Income Tax Officer observed that there were only two big shareholders of ; the assessee company, namely, Jiyajeerao Cotton Mills Ltd .• Birlanagar (Gwalior) (hereinafter referred to as JC Mills) and Punjab Produce and Investment Co. Ltd. (hereinafter referred to _ as PP! Co.). JC Mills, in the opinion of the Income Tax Officer, could not be regarded as a member of the public as it was being represented on the Board of Directors through its General Manager D. P. Mandalia. PPI Co. was found to be a company to which the provisions of section 23A of the Act were applicable. These two companies between themselves held 3,21,594 shares oui of the total shareholding of 3,70.000 shares. A> the shares held by the public, in the opinion of the Income Tax Officer, came to less than 25 per cent of the total shareholding, the assessee company was held to fa11 within the purview of section 23A of the Act. The Income Tax Officer also referred to article 33 of the Memorandum and Articles of Association of that assessee company, according to which the directors could without assigning any reason decline to register a trasfer to a transferee of whom they did not approve.\n\nThis fact was held to be a definite restriction on the transfer of shares. It was further observed that the shares of the assessee company were not quoted in stock exchange.\n\nAfter deducting Rs .. 8,40,524 on account of tax payable on Rs. 22,65,227 the balance of Rs. 14,23,703 was deemed by the Income Tax Officer to have been distributed amongst the shareholders.\n\nOn appeal before the Appellate Assistant Commissioner, it was urged on behalf of the assessee company that JC Mills and PPI Co. were companies in which the public was substantially interested and, as such, the sharholding of these public companies\n\n, should be considered to be shares held by the members of the A publi~. The Appllate Assistant Commiss10ner did not go into the quesuon as to wh.ether or not the above mentioned t_:?'O companies ! were such in which the public was substantially interested. He observed that groups of the two companies were controlling the affairs of.. the assessee company and as such, the shares held by them could not be considered to be shares held by the members of n the public. The appeal filed by the assessee was accordingly dis- --'-.... missed.\n\nThe matter was then taken up by the assessee in appeal before the Income Tax Appellate Tribunal. It was urged before the Tribunal that JC Mills was a public limited company to which the provisions of section 23A of the Act were not applicable: It was also pointed out that the PPI Co. was a company to which the provisions of section 23A did not apply. A copy of the order of Appellate Assistant Commissioner made in appeal filed by PPI Co. was produced before the Tribunal. The Appellate Assistant Commissioner had by that order set a.side the order of Income Tax Officer and had held that section 23A of the Act did not apply to PPI Co; The Tribunal observed that both JC Mil!s and PPI Co. were public companies in which the public were substantially inferested and, therefore, it was not correct to say that the shares held by the two companies were controlled by a group of persons as distinguished from members of the public.\n\nThe Tribunal further observed that the usual clause in -the Memorandum and Articles of Association expowering the directors to -decline to register a transfer of shares without assigning any reason did not mean any restriction on the transferability of shares by one holder to another.\n\nThe Tribunal also found that there was nothing to show that the shares were not in fact freely transferable.\n\nThe Tribunal consequently upheld the assessee's contention that it was a public limited company in which the public was substantially interested and its share were freely transferable. The provisions of section 23A of the Act were held to have been wrongly invoked. . The order of the Income Tax Officer in this respect was consequently set aside. The question reproduced above was thereafter referred to the High Court; The High Court by a short order answered the question in the affirmative and in this connection relied upon an earlier decision of the Calcutta High Court in Commissioner of Income-tax, West Bengal . v. Tona Jute Co.\n\nLtd.(1).\n\nIn appeal before us, Mr. Sen on behalf of the appellant has contended that the decision of Calcutta High Court in Commis-· --- sioner of Income-tax, West Bengal v. Tona Jute Co. Ltd. (supra) H has been impliedly overruled by a decision of this Court in the\n\n. (1) [1963] 48 I.T.R. 902. ,.\n\ncase of Shree Krishna Agency Ltd. v. Commissioner of lncometax (Central), Calcutta(').\n\nThis contention in our opinion is well founded. In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whoin it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal t~ register, was not a company the shares of which were freely transable to other members of the public within the meaning of section 23A of the Act. A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corporation Ltd.\n\nv. Commissioner of Income-tax(') and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commissioner of lncome-tax( 3 ).\n\nThis Court in the case of Shree Krihna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts.\n\nThis Court in that case dealt with article 37 of the Articles of Association of the assessee company which was a public company and which provided that the directors might at any time in their absolute and uncontrollable discretion and without assigning any reason decline to register any proposed transfer of shares. It was. held that in the absence of evidenee to show that the directors had been exercising their power under article 37 freely and had virtually eliminated the element of free transferability of the shares in the company, the mere existence of an article like article 37 could not be said to affect the free transferability of the shares as contemplated by the explanation to section 23A of the Act.\n\n. There is in f.!le. present case also no evidenee to show that the directors had elinunated the element of transferability of shares.\n\nAs such, .we find. that the decision of the High Court in answering the quest10n agamst the assessee cannot be sustained.\n\nOn an earlier date. of hearing Mr. Ahuja, on behalf of the revenue, prayed for ad1oumment to ascertain whether there was any coget aterial on th~ record to show that there was any group actmg m concert which was in control of the assessee company. The adjournment was granted.\n\nWhen the hearing of the case was resumed thereafter, Mr. Ahuja on behalf of the department !rankly stated that he had not been able to find any cogent matenal to show that there was any group acting in concert which was in control of the assessee company. He, however, prayed that the case be remanded to the authorities concerned for going into this question. As the matter relates to the assessment year 1952- 53 and as Mr. Ahuja in spite of adjournment has not been able to find any cogent material to warrant the plea that a group acting\n\n(I) [19711 82 I.T.R. 372.\n\n(2) [1966] 61 I.T.R. 16.\n\n(3) [1969] 74 l.T.R. 823. 15-L'ill Sup. CI/73\n\nin concert was in control of the assessee company, we are of the\n\nopinion that we should not accede to the prayer of Mr. Ahuja in this respect.\n\nThe fact that two public limited companies were holding between themselves more than 75 per cent of the sharea of the assessee company was not sufficient to attract section 23A of the Act,\n\nThe case of Commissioner of Income-tax v. Jubilee Mills Ltd.(') referred to by Mr. Ahuja cannot be ol much assistance to him. In the said case the Managing Agents of a company were partners of a firm who held between themselves more than 7 5 per cent of the voting power. It was held that as more than 75 per cent of voting power was held by a group, the company was not a company in which the public were substantially interested within the meaning of section 23A. In the present case as appears from the resume of facts, more than 7 5 per cent of shares of the assessee company are held not by a group of partners, but by two public companies in which public are . substantially interested.\n\nThis is also no material to show that any group acting in concert is in control of the assessee company. As such, the case of Jubilee Mills cannot be said to have any material bearing.\n\nWe accordingly accept the appeals, set aside the judgment of the High Court and discharge the answer given by it to the question referred to it. We answer the said question in the negative and in favour of the assessee.\n\nThe assessee-appellant shall also be entitled to the costs of this Court and in the High Court. One set of hearing fee.\n\nV.P.S.\n\nAppeals allowed.\n\n(I) (1%3) 48 I.T.R. 9.", "total_entities": 49, "entities": [{"text": "206\n\nPILANI INVESTMENT CORPORATION LTD", "label": "PETITIONER", "start_char": 4, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "PILANI INVESTMENT CORPORATION LTD", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF INCOME TAX (CENTRAL", "label": "RESPONDENT", "start_char": 48, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX (CENTRAL)", "offset_not_found": false}}, {"text": "AGANMOHAN REDDY", "label": "JUDGE", "start_char": 111, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 131, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 184, "end_char": 190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 957, "end_char": 963, "source": "regex", "metadata": {"statute": null}}, {"text": "Incometax Act, 1972", "label": "STATUTE", "start_char": 972, "end_char": 991, "source": "regex", "metadata": {}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 2282, "end_char": 2288, "source": "ner", "metadata": {"in_sentence": "B. Sen, Leila Seth, U. K. Khai/an and B. P. Maheshwari for\n\nthe appellant."}}, {"text": "Leila Seth", "label": "LAWYER", "start_char": 2290, "end_char": 2300, "source": "ner", "metadata": {"in_sentence": "B. Sen, Leila Seth, U. K. Khai/an and B. P. Maheshwari for\n\nthe appellant."}}, {"text": "U. K. Khai", "label": "LAWYER", "start_char": 2302, "end_char": 2312, "source": "ner", "metadata": {"in_sentence": "B. Sen, Leila Seth, U. K. Khai/an and B. P. Maheshwari for\n\nthe appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2320, "end_char": 2336, "source": "ner", "metadata": {"in_sentence": "B. Sen, Leila Seth, U. K. Khai/an and B. P. Maheshwari for\n\nthe appellant."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 2358, "end_char": 2369, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. . /"}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2371, "end_char": 2382, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. . /"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2387, "end_char": 2401, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. . /"}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 2480, "end_char": 2486, "source": "ner", "metadata": {"in_sentence": "_,, \\\n\nThe Judgment of the Courts was delivered by\n\nKHANNA, J. These two appeals on certificate are directed against the judgment of Calcutta High Court whereby it answered the following question in the affirmative and in favour of the revenue: .- . \""}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2561, "end_char": 2580, "source": "ner", "metadata": {"in_sentence": "_,, \\\n\nThe Judgment of the Courts was delivered by\n\nKHANNA, J. These two appeals on certificate are directed against the judgment of Calcutta High Court whereby it answered the following question in the affirmative and in favour of the revenue: .- . \""}}, {"text": "section 23A", "label": "PROVISION", "start_char": 2749, "end_char": 2760, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 3113, "end_char": 3124, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 3132, "end_char": 3159, "source": "regex", "metadata": {}}, {"text": "Jiyajeerao Cotton Mills Ltd", "label": "ORG", "start_char": 3585, "end_char": 3612, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer observed that there were only two big shareholders of ; the assessee company, namely, Jiyajeerao Cotton Mills Ltd .• Birlanagar (Gwalior) (hereinafter referred to as JC Mills) and Punjab Produce and Investment Co. Ltd. (hereinafter referred to _ as PP!"}}, {"text": "Birlanagar (Gwalior)", "label": "ORG", "start_char": 3616, "end_char": 3636, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer observed that there were only two big shareholders of ; the assessee company, namely, Jiyajeerao Cotton Mills Ltd .• Birlanagar (Gwalior) (hereinafter referred to as JC Mills) and Punjab Produce and Investment Co. Ltd. (hereinafter referred to _ as PP!"}}, {"text": "Punjab Produce and Investment Co. Ltd.", "label": "ORG", "start_char": 3679, "end_char": 3717, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer observed that there were only two big shareholders of ; the assessee company, namely, Jiyajeerao Cotton Mills Ltd .• Birlanagar (Gwalior) (hereinafter referred to as JC Mills) and Punjab Produce and Investment Co. Ltd. (hereinafter referred to _ as PP!"}}, {"text": "JC Mills", "label": "ORG", "start_char": 3758, "end_char": 3766, "source": "ner", "metadata": {"in_sentence": "JC Mills, in the opinion of the Income Tax Officer, could not be regarded as a member of the public as it was being represented on the Board of Directors through its General Manager D. P. Mandalia."}}, {"text": "PPI Co.", "label": "ORG", "start_char": 3956, "end_char": 3963, "source": "ner", "metadata": {"in_sentence": "PPI Co. was found to be a company to which the provisions of section 23A of the Act were applicable."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 4017, "end_char": 4028, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "section 23A", "label": "PROVISION", "start_char": 4360, "end_char": 4371, "source": "regex", "metadata": {"statute": null}}, {"text": "article 33", "label": "PROVISION", "start_char": 4424, "end_char": 4434, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Appellate Tribunal", "label": "COURT", "start_char": 5875, "end_char": 5904, "source": "ner", "metadata": {"in_sentence": "The matter was then taken up by the assessee in appeal before the Income Tax Appellate Tribunal."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 6009, "end_char": 6020, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 6135, "end_char": 6146, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 6400, "end_char": 6411, "source": "regex", "metadata": {"statute": null}}, {"text": "PPI Co", "label": "ORG", "start_char": 6440, "end_char": 6446, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner had by that order set a.side the order of Income Tax Officer and had held that section 23A of the Act did not apply to PPI Co; The Tribunal observed that both JC Mil!s and PPI Co. were public companies in which the public were substantially inferested and, therefore, it was not correct to say that the shares held by the two companies were controlled by a group of persons as distinguished from members of the public."}}, {"text": "JC Mil!s", "label": "PETITIONER", "start_char": 6480, "end_char": 6488, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner had by that order set a.side the order of Income Tax Officer and had held that section 23A of the Act did not apply to PPI Co; The Tribunal observed that both JC Mil!s and PPI Co. were public companies in which the public were substantially inferested and, therefore, it was not correct to say that the shares held by the two companies were controlled by a group of persons as distinguished from members of the public."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 7341, "end_char": 7352, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 7812, "end_char": 7815, "source": "ner", "metadata": {"in_sentence": "In appeal before us, Mr. Sen on behalf of the appellant has contended that the decision of Calcutta High Court in Commis-· --- sioner of Income-tax, West Bengal v. Tona Jute Co. Ltd. (supra) H has been impliedly overruled by a decision of this Court in the\n\n. ("}}, {"text": "Tona Jute Co.", "label": "ORG", "start_char": 8228, "end_char": 8241, "source": "ner", "metadata": {"in_sentence": "In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whoin it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal t~ register, was not a company the shares of which were freely transable to other members of the public within the meaning of section 23A of the Act."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 8704, "end_char": 8715, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 8792, "end_char": 8809, "source": "ner", "metadata": {"in_sentence": "A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corporation Ltd.\n\nv. Commissioner of Income-tax(') and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commissioner of lncome-tax( 3 )."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 8883, "end_char": 8900, "source": "ner", "metadata": {"in_sentence": "A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corporation Ltd.\n\nv. Commissioner of Income-tax(') and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commissioner of lncome-tax( 3 )."}}, {"text": "Shree Krihna Agency Ltd.", "label": "ORG", "start_char": 8990, "end_char": 9014, "source": "ner", "metadata": {"in_sentence": "This Court in the case of Shree Krihna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts."}}, {"text": "Madras and Bombay High Courts", "label": "COURT", "start_char": 9054, "end_char": 9083, "source": "ner", "metadata": {"in_sentence": "This Court in the case of Shree Krihna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts."}}, {"text": "article 37", "label": "PROVISION", "start_char": 9121, "end_char": 9131, "source": "regex", "metadata": {"statute": null}}, {"text": "article 37", "label": "PROVISION", "start_char": 9514, "end_char": 9524, "source": "regex", "metadata": {"statute": null}}, {"text": "article 37", "label": "PROVISION", "start_char": 9665, "end_char": 9675, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 9781, "end_char": 9792, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahuja", "label": "OTHER_PERSON", "start_char": 10100, "end_char": 10105, "source": "ner", "metadata": {"in_sentence": "of hearing Mr. Ahuja, on behalf of the revenue, prayed for ad1oumment to ascertain whether there was any coget aterial on th~ record to show that there was any group actmg m concert which was in control of the assessee company."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 11296, "end_char": 11307, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 11774, "end_char": 11785, "source": "regex", "metadata": {"statute": null}}, {"text": "Jubilee Mills", "label": "ORG", "start_char": 12141, "end_char": 12154, "source": "ner", "metadata": {"in_sentence": "As such, the case of Jubilee Mills cannot be said to have any material bearing."}}]}
{"document_id": "1973_3_211_215_EN", "year": 1973, "text": "LT. GOVERNOR OF DELHI & ORS.\n\nM/S. GANESH FLOUR MILLS CO. LTD.\n\nJanuary 9, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA., JJ.]\n\nCentral Sales Tax Act 1956-S. 8(3)(c)-Respondent <dealing in vegetable products applie.d for amendraent of the egistration Certifical to in, el.ude Tin plates or tin sheets used for packing.\n\nWhetl1er l'eipondent can invoke the benefit of the sai.d clause.\n\nThe respondent company is a registered dealer unW:r the Central Sales Tax Act 1956 and deals mainly with vegetable products. It was granted the registration certificate under the Central Sales Tax (Regis tratiC11> and Turnover) Rules, 1957. In 1958, the respondent applied to the Sales Tax Officer for amendment of the Registration Certificate so as to include Tin plates or Tin-sheets under Subsection (3) of Section 8 of the Act on the ground that those goods were used by the respondent for packing its vegetable products for sale.\n\nThe application was rejected by the Sales Toax Offi.ce'r on the ground that the goods o question were \"Declared Goods\" and therefore, their purchase on the strength of registration certificate could be allowe~ - only if they were to be resold in the form in which they had been purchased. A revision petition against the said drder was dismissed by the Commissioner. of Sales Tax who he]d that the goods in question \\Vere not containers and that \"Tiin Plates\", or \"Tin Sheets\" did not consti tute packing material.\n\nFurther revision filed before the Chief Commissioner was dismissed. The respondent thereafter, filed an appli cation for making a reference to the High Court, but it was rejected by the Chief Commissioner on the ground of limitation.\n\nThe respo, lldent, thereafter, moved the High Court for direction to th~ Chief Commissioner to refer the question of la\\V to the High eourt.\n\nTn addition, the respondent filed a petition under Art. 226 and 227 of the Constitution for a direction to the appellants to decide the application for amendment of the Registration Certificate in accordance with law.\n\nThe High Court allowed the writ petition and held that the words in Sec. 8(3) ( c) of the Act were wide enoul!h to cover the goods in question. On appeal to this Court, the appellant raised the following question : The \"Tin Sheets and Tin Plates\" are not covered by clause\n\n(c) of Sub-section (3) of Section 8 of the Act, as those goods comtitute neither \"containers nor materials intended for being used fo'r packing of goods for sale.\" Further as tin sheets. and tin plates cannot be used bv the respondent unless they are converted into containers. the respondents cannot invoke the benefit of S. 8(3)(c), of the Act.\n\nDismissing the appeal,\n\nHELD: (i) The materials refeited to in Clause (c) of Sec. 8(3) according to its plain language, should be such as are intended for packing of goods for sate. Once the intention of using the materials for packing of goods for sale is proved, the requirements of the Clauo; e would be satisfied. The fact that tin sheets and tin plates have kl be ubjed by .the responW:nt to the process of cutting, and mouldino into tin containers would not take them out of the category of materia1S intended for being used for the packing of goods 'for sale. The cuttino .and moulding is essential for putting the tin sheet's and tin plates intO\n\nSUP~~ME COURT REPORTS [1973] 3 .s.c.R.\n\n.shape \\vith a view to adapt them fof aCtual user. The process of cutting and moulding does not alter the nature of the materials intended for use in packing the goods for sale. It o, lliy facilitates the actual user (or packing.\n\n[214FGJ ·\n\n(ii} Packing materials aJ'e necessary not only for solid articles, but also for those in liquid and semi-liquid form. In a society that produces food-stuffs and manufactured articles . in one locality and use them. in another, a wrapping or container is necessary during storage, transport and sale.\n\n[215-B] -\n\nEncyclopaedia 'of Britannica, Vol. 17 of 1968 Edn. p. 22 referred to,.\n\n, The functions of a package are ( 1) to contain a corivenient sizej_ unit or amount of a product; l1j to protect it in transit;\n\n(3) to aid its safe delhrery to the co.nsumer and ( 4) in some cases, to display the product or promote its sale, or <to act as a dispenser of it. Tue packing industry has expanded to meet the demands for processed and pt\"eserved foods rather than seasonal crops and new materials are being used for containers.\n\nIn the present case, as the tin-sheets and ti.rt-plates purchased by the . respondent were intended to be used for packing of vegetable products sold by the respondent. it is entitled to imoke the benefit of Oause (c) of S. 8(3). [215C-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1776 of 1969. . .\n\n Appeal by certificate from judgment and order dated May 3, .1968 of the High Court of Delhi at New Delhi in Civil Writ No. 135-D. of 1960. -\n\nS. K. Aiyar, S. P. Nayar and R. N. Sachthe:y for the appellants.\n\nRameshwar Nath for the respondent.\n\nThe Judgment oJ' the Court was delivered by\n\nKHANNA, J.\n\nThis appeal on certificate by the Lt. Governor Delhi and two others is directed against the judgment of Delhi High Court whereby it accepted the petition under article 226 and 227 of the Constitution of India filed by the respondent company and directed the appellants to decide the respondent's application for amendment of registration certificate in the light of 'observations made by the court. ·\n\nThe respondent company is a registered dealer under the Central Sales Tax Act, 1956 (hereinafter referred to as the Act) and deals mainly in vegetable products (vanaspati).\n\nThe respondent was granted registration certificate under the Central Sales Tax (Registration and Tumo'l'..er) Rules, 1957. On December 11, 1958 the respondent applied to the Sales Tax Officer for amendment of the registration certificate so as to include therein i tin plates or tin sheets under sub-section (3) of section 8 of the Act on the allegation that those goods were used by the respondent for packing its vegetable products for sale. The said appli-\n\n' H\n\nLT. GOVERNOR v. GANESH MILLS (Khanna, J.) 213\n\ncation was rejected by the Sales Tax Officer on the ground that the goods in question were declared goods and, as such, their purchase on the strength of registration certificate could be allowed only if they were to be resold in the form in which they had been purchased. Revision petition filed by the respondent against the order of the Sales Tax Officer was dismissed by the Commissioner of Sales Tax on the ground that tin plates or tin sheets were not declared goods or goods of special importance. On the other hand, according to the Commissioner, those goods could fall in the category mentioned in clause ( c) of sub-section ( 3) of section 8 of the Act provided they were either containers or materials used for packing of goods for sale.\n\nThe Commissioner further held that the goods in question were not containers as they had to undergo manufacturing process before they could be used as con\n\ntainers. The goods were also held not to fall in the second category of being materials used for packing vegetable oil because, according to him, the word \"packing\" was invariably used for holding solid contents.\n\nHe, therefore, held that \"tin plates\" or \"tin sheets\" did not constitute packing material. Further revision filed by the respondent was dismissed by the Chief Commissioner who agreed with the opinion of the Commissioner. An application was thereafter filed by the respondent for making a reference to the Hi1th Court of the question of Jaw arising from the order of\n\nte Chief Commissioner.\n\nThis application too was rejected by the Chief Commissioner on the ground of being barred by time.\n\nThe respondent thereafter moved the High Court for a direction to the Chief Commissioner to refer the question of law formulated by the respondent to the High Court. In addition lb that, the\n\nr~'nondent filed a netition under articles 226 and 227 of the Constitution of India for a direction to the appellants to decide the respondent's application for amendment of the registration certificate in accordance with law.\n\nThe writ petition was resisted by the appellants.\n\nThe High Court accepted the writ petition and held that the words of clause ( c) of sub-section ( 3) of section 8 of the Act were wide enough to cover the goods in question. According to the High Court, it was not necessary that those goods should be capable of being used directly for the purpose of packing. It was quite enough if\n\nth~ intention of the dealer was to acquire them in order that they might be used for packing of goods for sale even if in that process ?f ada9ting them for such use, they had to undergo some change m .shape or form. It was further observed that the respondent's ob1ect was to convert the tin sheets and tin plates into tin contners with a view that the same might be filled with the vegetable 01! products to be sold to different parties.\n\nBefore proceeding further, we may set out sub-section (I) and clause (c) of sub-section (3) of section 8 of the Act:\n\n214'\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\n\" ( 1) Every dealer, who in the course of inter-State trade or commerce--\n\n(a) sells to th~ Government any goods; or\n\n(b) sells to a registered dealer other than the Government goods of a description referred to in sub-section ( 3) ; shall be liable to pay tax under this Act, which shall be three per cent of his turnover.\n\n(3) The goods referred to in clause (b) of sub-section (1)-\n\n(b) • • • • • •\n\n' ( c) are containers or other materials specified in the\n\n. certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; • • • • *\" Mr. Aiyar on behalf of the appellants has argued tha:t tin sheets and tin plates are not covered by clause ( c) of sub-section .t).) of section 8 of the Act reproduced above as those good5 constitute neither containers nor \"materials intended for being 11sed for packing of goods for sale\". Mr. Rameshwar Nath on behalf of the respondent has not disputed that tin sheets and tin plates do not constitute containers, but, according to him, they fall in the category of materials intended for being used for packing of goods for sale. There is, in our opinion, considerable force in this submission of Mr. Rameshwar Nath.\n\nThe materials referred to in clause ( c) according to its plain language should be such as are intended for being used for the packing of goods for sale. Once the intention of using the materials for packing of goods for sale is proved, the requirements of the clause would be satisfied. The High Court has found that the respondent purchased tin sheets and tin plates from dealers in Bihar and elsewhere with a view to convert those sheets and plates into tin containers in order to fill the same with vegetable oil products for being sold to different parties. This finding of the High Court has not been questioned before us. It has, however, been urged on behalf of the appellants that as tin sheets and tin plates canot be used by the respondent unless they are converted into containers, the respondent cannot invoke the benefit of clause ( c) of sub-section ( 3) of section 8 of the Act. We find it difficult to accept this contention. The fact that tin sheets and tin plates have to be subjected by the respondent to the process of cutting and moulding inio tin contas would not take them out of the category ef materials intended for being\n\nLT. GOVlillNOll v. GANESH MILLS (Khanna, /.) 215\n\nused for the packing of goods for sale.. The cutting and moulding is essential for putting the tin sheets and tin plates into shape with a view to adapt them for actual user. The process of cutting and mou1ding does not alter the nature of the \"materials intended for being used for packing of goods for sale\"; it only facilitates the\n\nactual user for packing.\n\nWe are also of the view that packing materials are necessary not only for solid articles but also for those in liquid and s~ liquid form.\n\nAccording to observations on page 22 of Encylo paedia Britannica, Vol.17, 1968 Edition, in a society that produces foods-stuffs and manufaotured articles in one Jocality and uses them in another, a wrapping or container is necessary during storage, transport, and sale. The functions of a package are ; ( 1) to contain a convenient-sized unit or amount of a product; (2) to protect it in transit; ( ~) to aid its safe delivery to the consumer; and ( 4) in some cases to display the product and promote its sale or to act as a dispenser of it. Orginally instituted to produce simple coniainers, the packing industry has expanded to meet the demands for processed and preserved foods, rather than seasonal crops, and to distribute increased varieties oI manufactured items.\n\nPacking reflects developments in other industries, especially petrochemicals and plastics, whereby new materials and methods of construction have been provided for containers. It has further been observed that cans, both tin and aluminium, are now used for ready-cooked products, brewery products, soft drinks, and many oils and semisolids.\n\nWhere a reclosable pack is needed. lever-lid or slip-lid cans are used instead of. sealed cans.\n\nAs the tin sheets and tin plates purchased by the respondent were intended to be used for packing of vegetable products sold by the respondent, the respondent, in our. opinion, was entitled to F invoke the benefit of clause ( c) reproduced above. In the result, the appeal fails and is dismissed with costs.\n\ns.c.\n\nAppeal dismissed.", "total_entities": 38, "entities": [{"text": "LT. GOVERNOR OF DELHI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "LT. GOVERNOR OF DELHI & ORS", "offset_not_found": false}}, {"text": "S. GANESH FLOUR MILLS CO. LTD.", "label": "RESPONDENT", "start_char": 32, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "M/S. GANESH FLOUR MILLS CO. LTD", "offset_not_found": false}}, {"text": "January 9, 1973", "label": "DATE", "start_char": 64, "end_char": 79, "source": "ner", "metadata": {"in_sentence": "January 9, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA.,"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 82, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 95, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 119, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Central Sales Tax Act 1956", "label": "STATUTE", "start_char": 140, "end_char": 166, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 8(3)(c)", "label": "PROVISION", "start_char": 167, "end_char": 177, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act 1956", "statute": "Central Sales Tax Act 1956"}}, {"text": "Central Sales Tax Act 1956", "label": "STATUTE", "start_char": 454, "end_char": 480, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 8", "label": "PROVISION", "start_char": 808, "end_char": 817, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "Art. 226 and 227", "label": "PROVISION", "start_char": 1878, "end_char": 1894, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sec. 8(3)", "label": "PROVISION", "start_char": 2114, "end_char": 2123, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 2346, "end_char": 2355, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 8(3)(c)", "label": "PROVISION", "start_char": 2643, "end_char": 2653, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 8(3)", "label": "PROVISION", "start_char": 2745, "end_char": 2754, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 8(3)", "label": "PROVISION", "start_char": 4653, "end_char": 4660, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4672, "end_char": 4700, "source": "ner", "metadata": {"in_sentence": "215C-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "S. K. Aiyar", "label": "LAWYER", "start_char": 4882, "end_char": 4893, "source": "ner", "metadata": {"in_sentence": "S. K. Aiyar, S. P. Nayar and R. N. Sachthe:y for the appellants.", "canonical_name": "S. K. Aiyar"}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4895, "end_char": 4906, "source": "ner", "metadata": {"in_sentence": "S. K. Aiyar, S. P. Nayar and R. N. Sachthe:y for the appellants.", "canonical_name": "S. K. Aiyar"}}, {"text": "R. N. Sachthe", "label": "LAWYER", "start_char": 4911, "end_char": 4924, "source": "ner", "metadata": {"in_sentence": "S. K. Aiyar, S. P. Nayar and R. N. Sachthe:y for the appellants."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4948, "end_char": 4962, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath for the respondent.", "canonical_name": "Rameshwar Nath"}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 5029, "end_char": 5035, "source": "ner", "metadata": {"in_sentence": "The Judgment oJ' the Court was delivered by\n\nKHANNA, J.\n\nThis appeal on certificate by the Lt."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 5145, "end_char": 5161, "source": "ner", "metadata": {"in_sentence": "Governor Delhi and two others is directed against the judgment of Delhi High Court whereby it accepted the petition under article 226 and 227 of the Constitution of India filed by the respondent company and directed the appellants to decide the respondent's application for amendment of registration certificate in the light of 'observations made by the court. ·"}}, {"text": "article 226 and 227", "label": "PROVISION", "start_char": 5201, "end_char": 5220, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5228, "end_char": 5249, "source": "regex", "metadata": {}}, {"text": "respondent company is a registered dealer under the Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 5447, "end_char": 5526, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 11, 1958", "label": "DATE", "start_char": 5744, "end_char": 5761, "source": "ner", "metadata": {"in_sentence": "On December 11, 1958 the respondent applied to the Sales Tax Officer for amendment of the registration certificate so as to include therein i tin plates or tin sheets under sub-section (3) of section 8 of the Act on the allegation that those goods were used by the respondent for packing its vegetable products for sale."}}, {"text": "section 8", "label": "PROVISION", "start_char": 5933, "end_char": 5942, "source": "regex", "metadata": {"linked_statute_text": "The respondent company is a registered dealer under the Central Sales Tax Act, 1956", "statute": "The respondent company is a registered dealer under the Central Sales Tax Act, 1956"}}, {"text": "section 8", "label": "PROVISION", "start_char": 6773, "end_char": 6782, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 226 and 227", "label": "PROVISION", "start_char": 7968, "end_char": 7988, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7996, "end_char": 8017, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 8317, "end_char": 8326, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 8", "label": "PROVISION", "start_char": 9082, "end_char": 9091, "source": "regex", "metadata": {"statute": null}}, {"text": "Aiyar", "label": "OTHER_PERSON", "start_char": 9793, "end_char": 9798, "source": "ner", "metadata": {"in_sentence": "certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; • • • • *\" Mr. Aiyar on behalf of the appellants has argued tha:t tin sheets and tin plates are not covered by clause ( c) of sub-section .t).)"}}, {"text": "section 8", "label": "PROVISION", "start_char": 9925, "end_char": 9934, "source": "regex", "metadata": {"statute": null}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 10084, "end_char": 10098, "source": "ner", "metadata": {"in_sentence": "Mr. Rameshwar Nath on behalf of the respondent has not disputed that tin sheets and tin plates do not constitute containers, but, according to him, they fall in the category of materials intended for being used for packing of goods for sale.", "canonical_name": "Rameshwar Nath"}}, {"text": "Bihar", "label": "GPE", "start_char": 10795, "end_char": 10800, "source": "ner", "metadata": {"in_sentence": "The High Court has found that the respondent purchased tin sheets and tin plates from dealers in Bihar and elsewhere with a view to convert those sheets and plates into tin containers in order to fill the same with vegetable oil products for being sold to different parties."}}, {"text": "section 8", "label": "PROVISION", "start_char": 11283, "end_char": 11292, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_216_221_EN", "year": 1973, "text": "E. VENKATESWARA RAO NAIDU\n\nUNION OF INDIA January 9, 1973 '\n\n{H, R. KHANNA, Y. V. CHANDRACHUD AND c: A. VAIDIALINGAM,\n\nJJ.]\n\nfundaJnental Rules-Age of retiren1ent-Office Afenioranduni of llome ·/o.Jinistry issued on Nov. 30, 1962 raising age of . retirement fron1 55 to 58 .Years but resving pott•er in appointing authority to retire a , qovernrnent servant by notice without zh:ing any reason at age of 55-0ffice Me1noranduni lvhethei' a rule-fVithin meaning of Art.\n\n309. Constitution of India-Fundan1ental Rules a111ended in 1965 incorporating rule in OjJice Men1orandun1 of 1962 ireJ?arding raising pf age to -58 years~-Notice of con1pulsory retirement at 55 issued under office Memorandum--'-Received b, v eniployee after proniulgation of an1ended Fundcmenta{ J?..u!es-t:niptovee lvhether could take advanta;:e of arnend~ ed rule-Cornpu!sory retirenzent need not puroort to be in public interest when notice issued before pro1nulgatiCnr of sub-rule (j) of rule 56(aJ. ·\n\nRule 56 of the Fundamental Rules originally provided that the age of compulsory retiren1ent for Central Governn1ent Seryan!s other 1han miniiterial servants shall be 55 years. On November 30. 1962 the Govcrnme:rrt of Indi-a,· 1\\1inistry of llome Affairs issued an Office :rvlemo'randum whereby . the age of compulspry rctiren1nt \\Vas raised to 58 years.\n\nJlo\\vever by paragraph 6. of the l\\fcmorandum the appoint~ ing authority could retire a Govenunent servant at the age of 55 years ,- without giving any reason after three months' notice.\n\nOn July 21, ' 1965 Fundan1cntal , H.ulc 56 \\Vas amc:n<lcd by the Sixth Amendment so as to incorporate,. with modifications, the p'rovisions of the aforesaid Office Memorandum.\n\nRule 56(a) of the Fundamental (Sixth Amendment) Rules 1965 laid down that except as otherwise provid\"d in the Rule, every Government servant shall retire at the age , of\n\n58. years.\n\nCertain exceptions \\Vere provided to the Rule a.nd that in . sub-rule (j) said that the approp'riate authority in the public interest had the absolute right to. retire a Govcrnn1ent servant at the age of 55 years after\n\ngivin~ him notice.\n\nBorn on July 15, 1910 tho appellanf attained. the age of 55 on the corresponding date in 1965.\n\nO.n July 22, 1965 while he was holding the post of Assistant Commissioner of Income-tax, he received a notice dated July 15, 1965 compulsorily. retiring him from service with effect from October 21, 1965.\n\nHe filed a writ peti tion in the High Court challenging that notice but failed; By certificate he app.ealed to this Couri. ·\n\nHELD : (i) The proviso to Art. 309 empowers the President to make rules regulating the retirement and conditions of servants appoint ed to Un'ion services and -posts until provision in that behalf is made under an Act of the appropriate legislature. The rules so made by the President are effective subject to the provisions of any such Act.\n\nParagraph 2 ol the Offic~ l\\femorand\\lm in terms recites that the President is . pleased to direct that age of compulsory retirement of Central Government servants should be 58 years; subject to certain exceptions Paragraph 8 of the Memorandum merely re-states with , particularity the true legal pos'ition which obtains under the proviso to Article 309. Nothing stated in that paragraph is capable of the\n\nJ . ' ..\n\nl ''\n\n-,.\n\nA \\\n\nB ...--- .c\n\n'y F \"r-\n\n~ H\n\nconstructiori that the Office 11emora0.dum was not to be effective until Ftindamcntal nutes were consequently ame:nde<l.\n\nIn. {act by Para~ gr-aph 7 the provisions of the 1femorandum v.ere given express effect_ from December 1, 1962, [219 FG] ·\n\n(ii) It is true the notice ot' con1pulsory retirement \\Va.s served ?n the appellant on July 22, 1965 while the Fundamental (Sixth Amendment) Rules came into force a day prior thereto viz. O; rt July 21, 1965.\n\nBut the crucial date is the date on \\vhich the notice \\Vas b:s'Jed, namely July 15, 1965 for, a right.which is validly determined, cannot without more, stand revived by -a later amendment enlarging the scope of that right. [220-A Bl .\n\nThe appellant\\ continued in' service beyorrd the ag-~ of 55 years which he attained on July 14,' 1965 by reason of paragraph 2 of the memorandum.\n\nHaving_ obtained the benefit of that provision he could not repudiate the exception the'reto, in paragraph 6 of the memorandum. [220 Gl . ..\n\nPunjab v. Ama'r Singh flarika, A.I.R. 1966 S.C. 1313, distinguished. • • (iii), Under the Office }..len1orandum the Government \\Vas entitled to retire the appellant compulsorily without assigning any reason.\n\nThe concept of public interest was introduced . by subrulc (j) of Ruic 56(a) of the Fundamental (Sixth Amendme:r, t) Rules .1965.\n\nThe appellant's scrvjce having been validly determined by a : notice \\vhich \\Vas issued prio:r to the date \\vhcn the amended rules came into force it \\Vas not necessary for the authority to satisfy itself thnt it \\Vas in public interest to retire the appellant compulsorily. [221-B] CIVIL APPELLATE JURISDICTION :Civil Appal No. 1300 of 1967. .Appeal by certificate from the judgment and order dated 19th September 1966 of the Orissa High Court at Cuttack in O.J.C.\n\nAppeal No. 272 of 1965. _ · M. Natesan, P. C. Bhartari, B. Parthasarathy, J. B. Dadac/1a11ji,\n\n0. C. Mathur and Ravinder Narain, for the appellant.\n\nB. D. Sizar ma and S. P. Nayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J, Born on July 15, 1910 appellant attained the age of 55 on the corresponding date in' 1965. He hoped to continue in the service of the respondent-Union of India-until attaining the age of 58, but on July 22, 1965 while he was holding the post of Assistant Inspecting Commisisoner Income1ax, Cuttack, he received a notice dated July 15, 1965. compulsorily retiring him from service with effect from October 21, 1965. He filed in the High Court of Orissa a writ petition challenging that notice but failed. The High Court, however, granted him leave to appeal to this Court. ··\n\nFirst, . we wiH notice the provisions on which the appellant bases his challenge to the order of compulsory. retirement.\n\n; Originally, Rule 5 6 of the Fundamental Rules read thus : . \"Except as otherwise provided in the other clauses. of this Rule 'the date of c9mpulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years\". On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an Office Memorandum under which the age of compulsory retirement of Central Government servants was raised from 55 to 58 years, subject to the three exceptions mentioned is paragraph 2 thereof. Paragraph 6 of the Memorandum provided: .\n\n\"Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the .age of 55 years on three months' notice without assigning any reason. This will be in addition to the provisions . already contained in rule 2(2) of the Liberalised Pension Rules 1950 to retire al! officer who has. completed 30 years' qualifying service and will normally be exercised\n\nto weed out unsuitable employees after they have attained the age of 55. years. The Government servant also may, after attaining the age of 55 years, volun tarily re.tire after giving three. months' notice to the appointing authority.\"\n\nThe Memorandum was to take effect from December 1, 1962.\n\nOn July 21, 1965 Fundamental Rule 56 was-amended by the : Sixth Amendment so as to incorporate, with modifications, the provisions of the aforesaid Office Mel!lorandum. Rule 56(a) of the Fundamental (Sixth Amendment) Rule, 1965 says: \"Except\n\nas otherwise provided in this Rule, every Government servant shall retire on the dav he attains the age of fifty eight years\". A number of exceptions are engrafted as this rule, relevant amongst them being the one contained in sub-rule (j). That exception reads thus:\n\n\"Notwithstanding. anything contained .in this Rule the appropriate authority shall, if it is of the opinion thatiit is in the public interest to do so,_ have the absolute right to retire any Government servant after he has attained. the age of fifty five years by giving him notice of not less than three months in writing\" . . Jn the High Court the order of compulsory retirement was challenged on two grounds, one of them being that the Office Memorandum and the Sixth Amendment to Fundamental Rules were void as being violative of the guarantee contained in Article 311 (2) of the Constitution. The High Court rejected. that co11r tenticn by a common judgment dated_ September 19. 1966,\n\n' '-\n\nF---<\n\ngoverning the case of the petitioner and of one Batahari Jena.\n\nThe contention of the letter in this petition was that a Resolution dated May 21, 1963 and a notification dated February 6, 1964 of the Government of Orissa, on the basis of which he was retireq compulsorily were void as offending Article 311(2). In an appeal filed by Batahari Jena (1971,2 S.C.C. 232) this Court upheld the validity of the Resolution and the notification. As the Office Mrmorandum dated November 30, 1962 and Rule 56(a) of the Fundamental (Sixth Amendment) Rules, 196 S are in terms simi Jar to the resolution and the notification im1mgned in Batahari Jena's case, learned counsel for the appellant did not, rightly, challenge the constitutional validity thereof.\n\nThe first of the three points urged before us is that the notice retiring the appellant compulsorily is invalid as the Office Memorandum on the strength of which it was issued, did not have the force of a rule made under Article 309 of the Constitution. This contention is based on Paragraph 8 of the Memorandum which provided that \"The amendment of the relevant rules covering the All India Services so as to make these orders applicable to the members of those services is being undertaken in consultation with the State Governments\".\n\nWe see no merit in the contention.\n\nArticle 309 provides that subject to the provisions of the Constituti<>n, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. In regard to services and posts in connection with the affairs of the Union, the proviso to Article 309 empowers the President to make rules regulating the recruitment and conditions of servants appointed to such service, and posts until provision in that behalf is made under an Act of the appropriate Legislature.\n\nThe rules so made by the President are effective subject to the provisions of any such Act. Paragraph 2 of the Office Memorandum in terms recites that \"the President is pleased to direct that the age of compulsory retirement of Central Government servants should he 58 years\", subject to certain exceptions. Paragraph 8 of the Memorandum merely re-states with particularity the true legal position which obtains under the proviso to Article 309.\n\nNothing stated in that paragraph is capable of the construction that the Office Memorandum was not to be effective until Fundamental Rules were consequently amended. In fact, by Paragraph 7 the provisions of the Memorandum were given express effect frnm December 1, 1962.\n\nIt is then contended that as the appellant was lawfully in service when the amended Fundamental Rules came. into force. he would be governed by these rules and so he collld not be asked\n\nto retire by a notice founded on the provisions o.f the Office A Memorandum.\n\nNow, it is true that the notice of compulsory retirement was served on the appellant on July 22, 1965 while the Fundamental (Sixth Amendment) Rules came into force day prior thereto viz., on July 21, 1.965.\n\nBut the crucial date is the date on which the 11otice was issued viz .. July 15, 1965, for a right which is validly detennined cannot, without more, stand B revived by a later amendment enlarging the scope of that right.\n\nTherefore, the notice having been valid when it was issued, cannot become invalid by reason of the fact that the Rule on which it was founded had undergone an amendment before it was received by the appellant.\n\nIn support of the argument that the amendment of Funda- C mental Rules prior to the receipt of the notice by the appellant would render the notice invalid, reliance was placed on a decision of this Court in State of Punjab v. Amar Singh Harika(1) in which it was held that the mere passing of an order of dismissal is not e!fective unless it is published and communicated to the officer concerned. This decision has no bearin_g tiecause there the question was D not one of the initial validity of the order but of the time from which it would take effect. An order of dismissal was passed on June 3, 1949 but it was not until May 28, 1951 that the officer concerned came to know about it. In that context it was held that an order of dismissal passed by an Authority but kept on its file with communicatin_g it to the officer concerned can only take effecf after F. it is communicated or is otherwise published. rt was observed that in the interregnum, the authority could well change its mind and modify the order and several other complications would arise as for example whether the officer lawfully drew his salary for the intervening period.\n\nNo such considerations arise in the instant case.\n\nBesides, under the unamended Fundamental Rule 56, the appellant would have retired on attaining the age of 55, that is on July 14, 1965. He continued in service thereafter,, though for\n\na short period, solely by reason of the provision contained in Paragraph 2 of the Office Memorandum, by which the age of retirement was raised to 58. Having obtained the benefit of that G provision, the appellant cannot repudiate the exception thereto, contained in Paragraph 6 of the Memorandum. The benefit of an instrument carries with it the obligation: to be subject to the burden which it imposes.\n\nFinally, it was contended that the order of compulsory retirement is bad because it does not purport to have been issued in H '\"the public interest\". This argument assumes that the amended\n\n(l) A.l.R. 1966 S.C. 1313.\n\nE. v. RAO v. UNION (Chondrachud, /..) 221\n\nA Fundamental Rules would govern the conditions of the appellant'!!'\n\nservice, which is a wrong assumption to make. Under the Office Memorandum, the Government was entitled to retire the appellant compulsorily without assigning any reason. The concept of \"public interest\" was introduced by sub-rule (j) of Rule 56(a) of the Fundamental (Sixth Amendment) Rules, 1965. The appellant's B service having been validly determined by a notice which was issued prior to the date when the amended rules came into force it was not necessary for the aut\\}ority to Soatisfy itself that it was in public interest to retire the appellant compulsorily.\n\nThe Miscellaneous Petition filed by the appellant contending that he should have been heard before the order of compulsory C retirement was passed has no substance in view of the decision in Union of India v. Col. 1. N. Sinha and Anr. (1) It was held therein that compulsory retirement does not involve civil consequences and therefore it is not necessary to afford to a Government servant an opportunity to show cause against his compulsory\n\nretirement.\n\nD For these reasons we dismiss the appeal but in the circumst-· ances there will be no order as to costs.\n\nG.C.\n\nAppeal dismissed~\n\n(1) (1971 1 S.C.R. 791.", "total_entities": 39, "entities": [{"text": "E. VENKATESWARA RAO NAIDU", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "E. VENKATESWARA RAO NAIDU", "offset_not_found": false}}, {"text": "UNION OF INDIA", "label": "RESPONDENT", "start_char": 27, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "R. KHANNA", "label": "JUDGE", "start_char": 65, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 76, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Art.\n\n309", "label": "PROVISION", "start_char": 463, "end_char": 472, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 474, "end_char": 495, "source": "regex", "metadata": {}}, {"text": "July 21, ' 1965 Fundan1cntal", "label": "DATE", "start_char": 1522, "end_char": 1550, "source": "ner", "metadata": {"in_sentence": "On July 21, ' 1965 Fundan1cntal , H.ulc 56 \\Vas amc:n<lcd by the Sixth Amendment so as to incorporate,."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 2573, "end_char": 2581, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 3232, "end_char": 3243, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Orissa High Court at Cuttack", "label": "COURT", "start_char": 5099, "end_char": 5127, "source": "ner", "metadata": {"in_sentence": ".Appeal by certificate from the judgment and order dated 19th September 1966 of the Orissa High Court at Cuttack in O.J.C.\n\nAppeal No."}}, {"text": "M. Natesan", "label": "JUDGE", "start_char": 5167, "end_char": 5177, "source": "ner", "metadata": {"in_sentence": "M. Natesan, P. C. Bhartari, B. Parthasarathy, J. B. Dadac/1a11ji,\n\n0."}}, {"text": "P. C. Bhartari", "label": "JUDGE", "start_char": 5179, "end_char": 5193, "source": "ner", "metadata": {"in_sentence": "M. Natesan, P. C. Bhartari, B. Parthasarathy, J. B. Dadac/1a11ji,\n\n0."}}, {"text": "B. Parthasarathy", "label": "JUDGE", "start_char": 5195, "end_char": 5211, "source": "ner", "metadata": {"in_sentence": "M. Natesan, P. C. Bhartari, B. Parthasarathy, J. B. Dadac/1a11ji,\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 5237, "end_char": 5246, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 5251, "end_char": 5266, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "B. D. Sizar", "label": "LAWYER", "start_char": 5288, "end_char": 5299, "source": "ner", "metadata": {"in_sentence": "B. D. Sizar ma and S. P. Nayar, for the respondent."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 5307, "end_char": 5318, "source": "ner", "metadata": {"in_sentence": "B. D. Sizar ma and S. P. Nayar, for the respondent."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 5385, "end_char": 5396, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J, Born on July 15, 1910 appellant attained the age of 55 on the corresponding date in' 1965."}}, {"text": "October 21, 1965", "label": "DATE", "start_char": 5798, "end_char": 5814, "source": "ner", "metadata": {"in_sentence": "compulsorily retiring him from service with effect from October 21, 1965."}}, {"text": "High Court of Orissa", "label": "COURT", "start_char": 5832, "end_char": 5852, "source": "ner", "metadata": {"in_sentence": "He filed in the High Court of Orissa a writ petition challenging that notice but failed."}}, {"text": "November 30, 1962", "label": "DATE", "start_char": 6377, "end_char": 6394, "source": "ner", "metadata": {"in_sentence": "On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an Office Memorandum under which the age of compulsory retirement of Central Government servants was raised from 55 to 58 years, subject to the three exceptions mentioned is paragraph 2 thereof."}}, {"text": "Government of India", "label": "ORG", "start_char": 6399, "end_char": 6418, "source": "ner", "metadata": {"in_sentence": "On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an Office Memorandum under which the age of compulsory retirement of Central Government servants was raised from 55 to 58 years, subject to the three exceptions mentioned is paragraph 2 thereof."}}, {"text": "Liberalised Pension Rules 1950", "label": "STATUTE", "start_char": 6999, "end_char": 7029, "source": "regex", "metadata": {}}, {"text": "July 21, 1965", "label": "DATE", "start_char": 7430, "end_char": 7443, "source": "ner", "metadata": {"in_sentence": "On July 21, 1965 Fundamental Rule 56 was-amended by the : Sixth Amendment so as to incorporate, with modifications, the provisions of the aforesaid Office Mel!lorandum."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 8500, "end_char": 8511, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Batahari Jena", "label": "OTHER_PERSON", "start_char": 8691, "end_char": 8704, "source": "ner", "metadata": {"in_sentence": "1966,\n\n' '-\n\nF---<\n\ngoverning the case of the petitioner and of one Batahari Jena."}}, {"text": "Article 311(2)", "label": "PROVISION", "start_char": 8938, "end_char": 8952, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 9611, "end_char": 9622, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 9964, "end_char": 9975, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 10332, "end_char": 10343, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 10990, "end_char": 11001, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "December 1, 1962", "label": "DATE", "start_char": 11258, "end_char": 11274, "source": "ner", "metadata": {"in_sentence": "In fact, by Paragraph 7 the provisions of the Memorandum were given express effect frnm December 1, 1962."}}, {"text": "July 22, 1965", "label": "DATE", "start_char": 11630, "end_char": 11643, "source": "ner", "metadata": {"in_sentence": "Now, it is true that the notice of compulsory retirement was served on the appellant on July 22, 1965 while the Fundamental (Sixth Amendment) Rules came into force day prior thereto viz.,"}}, {"text": "July 21, 1.965", "label": "DATE", "start_char": 11733, "end_char": 11747, "source": "ner", "metadata": {"in_sentence": "on July 21, 1.965."}}, {"text": "July 15, 1965", "label": "DATE", "start_char": 11822, "end_char": 11835, "source": "ner", "metadata": {"in_sentence": "But the crucial date is the date on which the 11otice was issued viz .. July 15, 1965, for a right which is validly detennined cannot, without more, stand B revived by a later amendment enlarging the scope of that right."}}, {"text": "June 3, 1949", "label": "DATE", "start_char": 12775, "end_char": 12787, "source": "ner", "metadata": {"in_sentence": "An order of dismissal was passed on June 3, 1949 but it was not until May 28, 1951 that the officer concerned came to know about it."}}, {"text": "May 28, 1951", "label": "DATE", "start_char": 12809, "end_char": 12821, "source": "ner", "metadata": {"in_sentence": "An order of dismissal was passed on June 3, 1949 but it was not until May 28, 1951 that the officer concerned came to know about it."}}, {"text": "July 14, 1965", "label": "DATE", "start_char": 13504, "end_char": 13517, "source": "ner", "metadata": {"in_sentence": "Besides, under the unamended Fundamental Rule 56, the appellant would have retired on attaining the age of 55, that is on July 14, 1965."}}, {"text": "(1971 1 S.C.R. 791", "label": "CASE_CITATION", "start_char": 15466, "end_char": 15484, "source": "regex", "metadata": {}}]}
{"document_id": "1973_3_222_236_EN", "year": 1973, "text": "T. GOVINDARAJA MUDALIAR ETC. ETC. v.\n\nTHE STATE OF TAMIL NADU & OTHERS\n\nJanuary 9, 1973\n\n[A. N. GROVER AND A. K. MUKHERJEA, JJ.]\n\nConstitution of India, Article 19(1)(f)-Motor Vehicle Act 1939, Maaras Amendment Act 18 of 1939-Chapter IVA-Sections 47(1)-\n\n•, cc), 58(2)(a), Section 68(cc)-Rules of -Business-Rule\n\n23(A)- Scheme for nationalisation of State Carriage whethtv violative of Article 19 (1) (f).\n\nConstructive res judicata-The same scheme unsuccesfully challenged for violation of Art. 19 (l) (g) earlier.\n\nThe Scheme for nationalisation of the Stage Carriage issued u:nder Chapter IV A of the Act was challenged before Supreme Court on the ground of the alleged violation of Art.19(1)(g) of the Constitution.\n\nThe Supreme Court by its judgement in A. Samjeevi Naidu etc. , •.\n\nState of Madras and another\n\n(1970 3 S.C.R. 505) turned down the challenge.\n\nAfter the decision of the Supreme Court in Rustom Cavasjee Cooper v. Union of India\n\n(1970 3 S.C.R. 530), the said >Cherne was again challenged as violative of Art. 19(1 )(f) of the Constitution. The Scheme was challenged inter ulia, on the ground, that the permit issued under the Act constitutes property, and the right to apply for permit as wen as renewal of a permit is a right to holu property and that the law authorising the nationalisation of Stage Carriage \\Vas violative of Art. 19( 1) (f) as the restriction was not in the public interest.\n\nThe writ petitions were dismissed by the Madras High Court.\n\nIn rejecting the appeals.\n\nHELD : (i) That there is no merit in the argument of the appellants that before the decision of the Supreme Court in Rustom Cavasjee Cooper's Case, it was not possible for the appellants to challenge the validity of Chapter IV A of the Act, as. the earlier decisions were based o; rt a theory that Art. 19(1) (I) could not be invoked wnen a case fell within Art. 31 of the Constitution K. K. Kochuni and Others\n\nv. State of Madras (1963) 3 S.C.R. 887), had earlier laid down that clause 1 of Art. 31 could no longer be construed as to exclude the operation of Art. 19 and a law regarding the deprivation of property was, therefore, too late in the day to punue that line of argument.\n\n[229 DJ\n\n(ii) By virtue of the Scheme, the existing permits of any operator will not be canct:lled. None of the properties or assets of the appellants is going to be acquifed.\n\nIt has already been held that nd operator can claim renewal of permit as a matter of right.\n\nTJ; ie effect of nationalisation on the properties or the business of the operator is not such Ill cannot be regarded to' a reasonable restriction in the interest of general public within the meaning of Art. 19(5). The tests regarding the validity of Act falling under Clause S or Clause 6 of Article 19 are same, Akadshi Padhan v. State of Orissa\n\n(1963) Supp. 2 S.C.R. 691) followed. [232 HJ\n\n(iii) Held, the hearing of objections to the Scheme under s. 68 (b) of the Act by the Home Secretary does not violate rules of natural justice ndr can any bias be imputed simply because Home Secretary is also\n\nGOVJNDARAJA V. TAMIL NADU 223\n\nthe memb, er of a committee which made the report :regarding the Schemes of. inationalisation.\n\nDosa Satyanarayana Murthy v.\n\nTht Andhra Pradesh State Road Transport Corporation (1961 1\n\nS. C.R.\n\n642) followed. [233 0]\n\n(iv) Held further, that the nationalisation Scheme, even if introduced piece-meal on particular routes, is not illegal unless it is established that there is discrimination against some operators.\n\nDosa Satyanarayana Murthy's case followed._\n\nThe mere fact that the Scheme was approved by the Home Secretary without any modification does not mean that the discretion, in discharge of the quasi-judicial function under s. 68(b) was not properly exercised or. that there was no scope for the proper exercise of the discertion due to the mandatory language contained in Oovt. Orders. [235 E]\n\nSaghir Ahmed v. State of U.P. & Ors., [1955] 1. S.C.R. 707, Ram Chandra Palai and Others v. The State of Orissa & Ors. [1956] S.C.R. 29, Bhikaji Narain Dlzakras and Others v. The Stc.te of Madh}•a Pradesh and Others, [1955]\n\n2 S.C.R. 589, Gullapa//i Nageiwara Ra\" and Others v. Andhra Pradesh State Trc.nsport Corporation and another .. [1959] Supp. 1 S.C.R. 319, Smt, Sitabati Debi and another v. State of\n\nWest Bengal and another, [1967] 2 S.C.R. 949, Mohd. Ayub Khan\n\nv. Commissioner of Police, Madras and another, [1965]\n\n\nEast India Electric Supply & Traction Co. Ltd. v. S. C. Dutta Gupta and Others, 59 C.W.N. 162, held not applicable.\n\nSrinivasa Reddy and Others v, The State of Mysore and Others [I %9] 2 S.C.R. 130, explained.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 672- 702, 704-710, 722-728, 776-781 of 1972 & 1057-1062, l l!O,\n\n1125, 1200, 1224, 1298-1300 & 2301 of 1972.\n\nAppeals by certificate from the Judgment and Order dated February 3, 1972 of the Madras High Court in Writ Petitions Nos. 883,884,885, 886,942,992,993,994,995of 1966,2061,2649, '.:1825 of 1970.\n\nA. K. Sen. K. layaram, for the appellants, in C.A, No. 672,\n\nK. Jayaram for the appellants in .c.As. Nos. 673-676; 683,\n\n684, 687, 688, 693, 678, 681, 682, 685, 686; 689-698, 694-695, 776-781. 1298-1300 & 2301.\n\nM. Natesan, K. Jayaram, for the appellants in C.A. No. 677.\n\nK. K. Venugopal and Vineet Kumar for the appellants in C.A.\n\nNos. 697-702.\n\nE. C. Aggarwala, and A. T. M. Sampath for the appellants in C.As. Nos. 704-710.\n\nK. K. Venugopal and K. B. Nambiyar, for the appellants in C.As. Nos. 722-728, 1057-1062 & 1200.\n\nK. K. Venugopal and A. S. Nambiyw for the appellants in C.As. Nos. 1120-1125. .\n\nVineet Kumar for the appellant in C.A. No. 1224.\n\nS. Govind Swaminadhan, S. Mohan, A. V. Aangam and A.\n\nSubhashini for the Respondents in C.As. Nos. 672-676, 678 for Respondents Nos. 1, 3 & 4 (In C.As. Nos. 677, 679, 680, 697, 702, 704-710, 722-728 and 776-781.\n\nS. Gobind Swaminadhan, A. V. Rangam, N. S. Siyam and A.\n\nSubhashini for the respondents in C.As. Nos. 1057, 1062, 1120-\n\n1125, 1200 and 2301 and all the respondents in C.A. Nos. 1224 and 1298-1300.\n\nThe Judgment of the Court was delivered by- D\n\nGROVER. J. These appeals by cel'!ificate arise out of a common judgment of the Madras High Court given in a number of writ petitions filed before it by various stage carriage operators.\n\nThe facts have been set out in detail in the judgment of the High Court and need be stated only briefly. The policy of nationalisation of passenger bus Transport in the State of Madras E (now Tamil Nadu) was laid down by the Government Order dated June 7, 1967. Under that order all routes of 75 miles and above all routes radiating or terminating in Madras City and all ro~ in the Kanyakungi District were to be nationalised as and when the permits of the private operators expired. By the Government order dated June 17, 1967 a committee was constituted for implementing the above decision.\n\nA Draft scheme was prepared by the committee for nationalising the routes in question to the complete elimination of private operators. This scheme was published under s. 68-C of the Motor Vehicle Act 1939, hereinafter called the 'Act'. A number of writ petitions were filed.in the High Court in 1967 challenging the validity of the draft scheme. That scheme was struck down by the High Court.\n\nThereafter the Governor of Madras inserted Rule 23-A in the Madras Government Business Rules in Exercise of his powers under Art. 166 of the Constitution. It was provided thereby that the powers and functions which the State Transport Undertaking could exercise under s. 68- C shall be exercised by the Secretary to the Government of Madras in the Industries, Labour and Housing Department on behalf of the State Government. It was also provided by that Rule that the powers and functions of the State Govmment under s. 68-D of\n\nthe Act and the Rules relating thereto were to be exercised by the Secretary to the Government of Madras in the Home Department on behalf of the State Government. In April 1968 an Ordinance was promulgated by the Governor which was later replaced by the Madras Act 18 of 1968 which became effective from April 1, 196g. By that enactments. 47(1) CC, s. 58(2) (A) ands. 68 (CC) were added to the Act.\n\nUnder the first two sections the Regional Transport Authority was to have due regard to the publication of the draft scheme in granting a permit or a renewal of a permit. The State Transport Undertaking, however, was entitled as of right to the issuance of a temporary permit on the publication of a draft scheme under s. 68 (CC). In exercise of the powers and functions under the new Business Rule 23-A schemes of nationalisation were promulgated and published.\n\nA number of operators again filed writ petitions challenging the draft scheme as also the validity of the Tamil Nadu Act 18, of 1968.\n\nThe High Court upheld the validity of these provisions including the newly added sections. That decision was affinned by this .\n\nCourt in A. San; eevi Naidu etc. etc. v. State of Madras & Aro. other.(')\n\nIt was pointed out in that judgment that in the State of Tamil Nadu the State Transport Undertaking is a Department of the State Government. Therefore the necessary opinion had to be formed by that Government. It was held that the function under the Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry .had been validly authorised under rule 23-A to take action under s. 68 ( c) of the Act. The validity of the provisions of the Madras Act 18 of 1968 which amended the Act had been canvassed before this Court but it was observed that it was not necessary to F decide that matter while deciding the question of the validity of the impugned scheme.\n\nAs pointed out by the High Court a third attempt was made by way of filing writ petitions in the High Court out of which the present appeals have arisen to impugn the validity of Chapter JV.\n\nA of the Act as amended by Madras Act 18 of 1968. We shall first state the allegations which are relevant for deciding the con stitutionality of the impugned provisions. In this connection we may refer to writ petition No. 780 of 1970 in which the petitioner V. Krishnamurthy was one of those who had challenged the validity of the draft scheme published by the Pirector, Madras State Transport Depl!J1ment as well as the draft scheme published by the Secretary' to the Government of Madras, Industries; Labour and Housing Department. It was stated in para 7 of the petition that\n\n\nby reason of the dismissal of the appeals by this Court the Secretary to the Government, Home Department, would now be competent to take up the draft scheme for hearing under s. 68-D of the Act. On finalisation of the scheme the petitioner's permit would automatically stand cancelled. In that event the petitioner's business would have to be closed down and he would be seriously affected financially.\n\nThe following part of paragraph 7 may be reproduced : , \"It would be seen that the result of the implementation of the Chapter IV-A is that only two buses operated by me as a commercial undertaking could have been nationalised, and the vehicles covered by the pemlits would be reduced in value to that of scrap and it would have no market at all as there would be no operators who would be coming forward to purchase these vehicles by reason of the nationalisation policy of the Government.\"\n\nAccording to paragraph 8 of the petition Chapter IV-A of the Act is violative of the fundamental rights guaranteed under Art. 19(1)\n\n(f) and (g) of the Constitution for the reason, inter alia, that the permit issued under the Act constitutes property and the right to apply for a permit as also to be granted a renewal of a permit is a right to hold property and the petitioner would be deprived thereof.\n\nThe petitioner's right under Art. 19( l )(f) could, therefore, be taken away only by a law relating to nationalisation of stage carriages if such a law satisfied the test of Article 19 ( 5), namely that it should be a reasonable restriction in public interest. It was stated that public interest would in no way be promoted by nationalisation because the Government undertaking wherever the routes had been nationalised was running into loss. Another attack was made on the ground that no procedural safeguards were contained in the Act before deprivation of the right to property could take place. It was further pleaded that although s. 68-D provided for compensa)ion, being paid at the rate of Rs. 200 / • per month of the unexpired portion of each permit there was no provisioo fur compensation where as a result of the approved scheme renewal of the permit was refused.\n\nIn the return which was filed on tiehalf of the respondents an objection was raised that the writ petition was liable to be dismissed on the ground of constructive res judicata.\n\nA writ petition had been filed on previous occasion and the points now sought to be agitated had not been taken. It was further maintained that according to the scheme it was only on the expiry of the existing permits of operators that the State Transport Undertaking would commence its services under the scheme of nationalisation. Other allegations made were denied.\n\nOOVINDAllAJA v. TAMIL NADU (Grover,/.) 227\n\nThe High Court first considered the question whether Chapter IV-A of the Act is violative of Art. 19(1) (f) of the Constitu\n\ntion and the same has been canvassed before us strenuously. The High Court was of the view that a route pennit is property and that although the validity of that Chapter had come up for consideration before this Court earlier and had been upheld but the decision in those cases was confined to the attack under clause\n\n(g) of Article 19 and not clause (f). Now was it open to challenge before the decision of this Couvt in what is known as the Bank Nationalisation case: Rustom Cavasjee Cooper v. Union of India.(') The High Court acceded to the argument of the Advocate General that a bus with a pennit is a valuable property but without a pennit or when the pennit expires it ceases to have more value than what can be fetched in the market. The motor vehicle is not taken away by the Government and the pennit holder is free to use it. Since the renewal of a pennit is not a matter of right on the expiry of the pennit its holder had no property in it and as such there was no question of infringement of his fundamental rights guaranteed by Article 19(1)(f) or Art. 31 of the Constitution.\n\nIt is necessary to notice the previous decisions in which the constitutional validity of the provisions similar to those of the Act was challenged. In Saghir Ahmed v. State of U.P. & Others(')· it was held that the U.P. Road Transport Act 1951 violated fundamental rights of private citizens guaranteed under Art. 19( 1 )(f)\n\nJ': .of the Constitution and was not protected by clause ( 6) of Art.\n\n19 as it stood at the time of the enactment A declaration had been made in terms of s. 3 of that Act to the effect that the stage carriage services, among others, on the -Bulandshahr Delhi route shall be run and operated exclusively by the State Government. A scheme was also notified for the operation of the stage carriage services on those routes. This was held to be an infraction of Art. 19 ( 1) (g) of the Constitution. The new clause inserted in F\n\nArt. 19(6) by the Constitution First Amendment Act 1951.did not apply to the facts of this case. It V(as observed that after .the insertion of that clause no objection could be taken to the 'Creation of a monopoly by the State on the ground that it violated A ... 19\n\n(1) (g). - In the next case Ram Chandra Pilai & Others v; Thi!' •State .of Orissa & Others (1) schemes of nationalisation ot stage citrrla'ge services were assailed on various grounds intruding Infringement of Art. 1 !I (1 ) ( f) and ( g) . In view of the lll:Delldll'lent made 'In clause ( 6) the creation of a state monopoly liy law was found to be permissible under that clause. SaghirAhmaif's ease was .held to be inapplicable and the decision in Bhikaji-. Nflr,-aJn,, Dhakras\n\n(I) [1970] 3 S.C.R, 530.\n\n(2) [1955] I S.C.R. 707. ·\n\n(3) [1956] s.c.R 29.\n\n&.Others v. The State of Madhya Prade.rh & Another(!) was A followed. It was not considered necessary to exainine the further contention that the fundamental rights guaranteed under Arts. 19 (1 )( f) and 31 ( 2) had been violated. If the permits held under the Act, were prematurely terminated or cancelled compensation was provided by the Orissa Act under which the nationalisation had been done. If there was no renewal of the permits on their expiration after they had run for their normal period no claim could be made by the permit holders on the score of such non renewal because renewal was not a matter of right. The concerned transport authority would be well within its right to refuse such renewal having regard to the provisions of the amended sections 47 and 55 of the Act. If at all there was any deprivation of proprietary rights it would be by authority of law. In Gul/apalli Nageswara Rao & Others, v. Andhra Pradesh State TrQJ'lsport Corporation & Anr. {2 ) the validity of the provisions contained in Chapter IV A of the Act was directly assailed. The Court refused\n\nto draw inferences from the provisions contained in s. 68-G for payment of compensation to the holder of a permit that the legislature had assumed that a transfer of the business was involved in the process laid down .in Chapter IV-A. Article 31 of the Constitution was held not to having been attracted.\n\nBefore thp decision in K. K. Kochuni & Others v. State of Madras & Others(•) this Court had held in the State of Bombll)' v.\n\nBhanji Munji & Another(') which was followed in certain other cases that the substantive provisions of law relating to acquisition\n\nof property were not liable to be challenged on the ground that they imposed unreasonable restrictions on the right to hold property. In other words, in cases falling under Art. 31(2) the provisions of Art. 19(1) (g) could not be invoked. In Kochuni's case. however, the effect of the Constitution Fourth Amendment F Act 1955 on Art. 31 was considered. It was held tha( that Article was no longer a self-contained' Article providing for a subject different from that dealt with by Art. 19. It dealt with two different subjects.\n\nClauses 2 and 2A dealt with acquisition and requisition and clause 1 with deprivation of property by authority of law. Clause 1 of Article 31 could no longer be so construed as to exclude the operation of Article 19. Bhanjl Munji's case was distinguished on the ground that after the Constitution Fourth Amendment Act it no longer held the field. In Smt~ Sitabati Debi & Anr. v. State of West Bengal & Anr.(5) it was pointed <Jut that Kochuni's case was not concerned with a Jaw of requisition or acquisition. Therefore the observations therein had to be under-\n\n(!) [1955] 2. S.C.R. 589.\n\n(2) [1959] Supp. S.C.R. 319.\n\n\nGOVINDARAJA v. TAMIL NADU (Grovet, /,) 229\n\nstood as meaning that Bhanji Munji's case no longer govetned a case of deprivauon of property by means other than requisition and acquisition. In other words any deprivation oi property under Art. 31 ( 1 ) had to satisfy the .guarantee of other fundl!lnnetal rights including A-rt. 19(1) (f). In Rustom Cavasjee Coope's case however, this Court settled the whole position by holding that the limitation prescribed Tur ensuring due exercise of the authority of the State to deprive a person of his property and tile power to compulsorily acquire the property were specific clauses of limitation on the right of private propel'IY falling under Art. 19 ( 1) (0.\n\nThus the Coun came to the .con.clusion that Arts. 19.( 1) (f) alid\n\n31 ( 2) were not mutually exclusive.\n\nThe argument of the appellants is that prior to the decis;:, n in Rustom Cavasjee Cooper's case it was not possible to c'..iallenge Chapter IV-A of the Act owing to the decision of this Court that Art. 19(1) (f) could not be invoked when a case. fe& within Art. 31 and that was the reason why this Court io a, ll the previous decisions relating to the validity of Chapter IV-A proceeded on an examination of the argument whether there was infringement o( Art. 19(1) (g), and clause (f) of that Article could not possibly be invoked. We are unable to hold that there is much substance in this argument. Bhanji Munji and other decisions which followed it were based mainly on an examination of the inter-relationship between Article 19(1) (f) and Art. 31(2). There is no question of any acquisition or, requisition in Chapter IV-A of the Act. The relevant decision for the purpose of these cases was only the one given in Kochuni's case after which no doubt was left that the authority of law seeking to .deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted infringement of the fundamental rights guaranteed by Art. 19(1)(f). It was, therefore, open to those affected by the provisions of Chapter IV-A to have agitated before this Court the question which is being raised now based on the guarantee embodied in Art. 19(1) (f) which was never done. It is apparently too late in the day now to pursue this line of argument, in this connection we may refer to the observa tions of this Court in Mohd. Ayub Khan v. Commissioner of Police Madras d: Another(') according to which even if certain aspects of a question were not brought to the notice of the court it would\n\nJeclinc to enter upon-re-examination of the question since the decision had been followed in other cases'. In Smt. Somavanti & Others v. The State of Punjab & Others(') a contention was raised . that in none of the decisions the ergument advanced in that case that a law may be protected from an attack under Art. 31 (2) 'but it would be still open to chaUenge under Art. 19 (1 )( f), had,\n\n:(1) I196S] 'i S.C.R. 884.\n\n(2) (1963] 2 S.C.R. 774.\n\nSUPREME COURT RBPORTS\n\n\nbllen examined or considered.\n\nTherefore, 'the decision of the Court was invited in the light of that argument. This contention, however, was repelled by the following observations at page 794 :-\n\n\"The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.\" It is common ground in the present cases that the validity of Chapter IV -A of the Act has been upheld on all previous occa sions.\n\nMerely because the aspect now presented based on the guarantee contained in Art. 19 (1) (f) was not expressly considered for a decision given thereon will not take away the binding\n\net::'ct of those decisions on us.\n\nT11e learned Advocate General who appears for the respondents has invited our attention to certain decisions which do not relate to the provisions of the Act but in which the principle which is sought to be invoked on behalf of the appellants based on Art. 19(1)(f) has been examined. In Akadshi Padhan v. State of Orissa( 1) the question was whether the monopoly in the trade of Kendu leaves which the State of Orissa took over constituted restriction on the fundamental right of the petitioner who used to carry on extensive trade in the sale of Kendu leaves. The attack against the Orissa Act by which the monopoly was created was based on the alleged contravention of the fundamental rights under Art. 19(l)(f) and (g).\n\nThe rival contentions which were advanced were that the effect of the change made by the Constitution First Amendment Act 1951 in Art. 19( 6) was not to exempt the law passed for creating a State monopoly from the application of the rule prescribed by the first part of Art. 19 ( 6). On the other hand it was contended by the State that the object of the amendment was tc Jut the monopoly laws beyond the pale of challenge under Art.\n\nJ(l) (f) and (g). The scope and effect of Art. 19 ( 6) after its amendment was fully considered.\n\nThe Court felt no difficulty in rejecting the argument that the creation of a State monopoly must be justified by showing that the restrictions imposed by it were reasonable and were in the interest of the general public. It was stated emphatically that the amendment clearly indicated that the State monopoly in respect of any trade or business must be presumed to be reasonable and in the interest of\n\ngenral public so far as Art. 19(l)(g) was concerned. The Court proceeded to hold that the effect of the amendment made in Art. 19 ( 6) was to protect the law relating to the creation of monopoly and that meant it were only these provisions of that law which were integrally and essentially connected with the creation of the monopoly which were protected. The rest of the provisions which\n\n(1} [1963] Supp. 2 S.C.R. 691.\n\nmight be incidental did not fall. under the later part of Art. 19 ( 6) and would inevitably have to satisfy the test of the first part of that Article.\n\nThe question which is more relevant for our purpose was next considered, namely, the effect of the amendment, on the other fundamental rights guaranteed by Art. 19( 1). The following observations at page 710 on this point may be reproduced:\n\n\"The position, therefore, is that a law creating a State monopoly in the narrow and limited sense to which we have already referred would be valid under the later part of Art. 19 ( 6), and if it indirectly impinges on any other right, its validity cannot be challenged on that ground. If the said law contains other incidental provisions which are not essential and do not constitute an integral part of the monopoly created by i.e., the validity of those provisions will have to be tested under the first part of Art. 19 ( 6), and if they directly impinge on any other fundamental right guaranteed by Art. 19 ( 1 ) , the validity of the said clause will have to be tested by reference to the corresponding clauses of Art. 19.\n\nIt is obvious that if the validity of the said provisions has to be tested under the first part of Art. 19 ( 6) as well as Art. 19 ( 5), the position would be the same because for all practical purposes, the tests prescribed by the said two clauses are the same.\" The instances given in the above decision of the State monopoly in respeot of road or air transport are pertinent.\n\nA law relating to such a monopoly would not normally impinge upon the citizens' fundamental right under Art. 19 ( 1 )( f). Similarly a State monopoly to manufacture steel, armaments or transport vehicles or railway engines and coaches would not normally impinge on Art. 19(1) (f). If the law creating such monopolies were, however, to make incidental provisions directly infringing the citizens' right under Art. 19(l)(f) that would be a different matter. (see pages 710. 711).\n\nIn Municipal Committee, Amritsar & Anr. v. State of punjab & Others(') the validity of l!he Punja~ Cattle Fairs (Regulation) Aot 1967 came up for examination. The Act declared that the State had the monopoly to hold cattle fairs and it prohibited all local authorities and individuals from holding such fairs at any place in the State. Shah J., delivering the judgment of the Court said at page 456 :-\n\n\"By imposing restrictions upon the right to hold a fair, the citizens are not depriyed of their property, and the freedom guaranteed by Art. 19(1) (f) is not infring-\n\n\ned. The primary object of the Act is to give a monopoly to the State to hold cattle fairs.\n\nAs a necessary concomitant of that monopoly, holding of cattle fairs by local authorities and individuals is prohibited.\n\nThe prohibition flows directly from the assumption of monopoly by the State and falls within the terms of Art. 19( 6) of \\he Constitution. It is a provision of the law creating monopoly \"basically and essentially necessary\" for creating the State monopoly to prevent other persons from conducting the same business''.\n\nThe learned Advocate General maintains that it follows from the above decisions that when nationalisation of a transport service is made which is fully protected by Art. 1916) no question arises of any deprivation of property. It is possible and likely that the value of the buses owned by the operators may be prejudicially affected or that they may not be able to carry on trade or business on the nationalised routes. According to the clear instance given in Akadshi Padhan's case to which reference has already been made a law relating to such a monopoly would not normally infringe the citizens' fundamental right under Art. 19( 1 )(f).\n\nMr. Natesan for the appellants has pointed out that while promulgating the schemes of nationalisation temporary permits have been granted to the State Road Undertaking and the compensation which is sought to be paid t9 the permit holders is either nil or too small and there is no provision for payment of any compensation the operators for being deprived of the transport business or for the effect of the non-renewal of their permits.\n\nWhile examining the above contentions it may be stated that there is no dispute on certain matters. The first is that according to the schemes of nationalisation which have been impugned all existing permits must come to an end before each scheme will become enforceable on a particular route.\n\nIn. other words by virtue of the scheme the existing permits of any operator will not be cancelled. None of the properties or assets of the appellants is going to be acquired.\n\nSo far as the renewal of a permit is concerned this Court has already held that no operator can claim renewal as a matter of right.. Section 68-G of the Act, contains the principle and method of determination of compensation if any existing permit is cancelled or its terms are modified. In the present cases. however. no such question arises because no occasion for cancellation of existing permits can arise in view of the terms of the impugned scheme. The effect of nationalisation on the properties or business of the operators is not such as cannot be regarded to be a reasonable restriction in the interest of the general public within Art. 19 ( 5) in the same way as a state monopoly must be presumed to be reasonable and in the interest of the general public\n\nso far as Art. 19 ( I ) ( g) and Art. 19 ( 6) are concerned this is view of the fact that the tests prescribed by clauses 5 and 6 of Art. 19 are the same: (vide Akadshi Padhan's case).\n\nWe are ac cordingly unable to sustain the challenge under Art. 19(1) (f) even of such a challenge is open to the appellants in the light of what has been observed earlier.\n\nIt bas next been argued that the nationalisation scheme were vitiated for various reasons. The first submission is that a policy decision was taken by the government which was embodied in the Government Order dated June 17, 1967. It was stated therein that the Government had considered carefully the question of extension of nationalisation of passengers transport in the State.\n\nIn modification of the existing policy the Government had decided that the types of routes set out should be nationalised. The Government proceeded to direct that the routes in the categories mentioned should be nationalised as and when the permits of the private operators expired. On the same day by another Government Order the Government constitutej an ad hoc committee \"to\n\nwork out the details in all aspects for implementing the policy . decision.\" One of the members of that committee was the Secretary to the Government, Home Department. The Committee was to submit its report within a fortnight. After the report had been submitted schemes were published under s. 68-C by the Secretary, Industries, Labour and Housing Department, hereinafter referred to as the Secretary industries. He purported to do so under rule 23A of the Rules of business. Objections which were fixed by the operators were heard and the schemes considered by the Secre tary Home, under s. 68-D who had been so authorised under s. 23A. According to the appellants the Secretary, Home, while hearing the objections under s. 68-D of the Act was acting as a quasi-judicial tribunal. Since he was a member of the committee which had made the report in accordance with which the schemes had been published under s. 68-C it is claimed that the Secretary, Home, acted as a Judge in his own cause. In other words, he participated in the policy decision of the Government and then he exercised the powers under s. 68-D of hearing objections -and considering the merits of the schemes.\n\nThis, it is suggested, is wholly contrary to the rules of natural justice the hearing by the Secretary, Home, being vitiated by bias.\n\nLearned single Judge of the Calcutta High Court in East India Electric Supply & Traction Co., Ltd. v. S. C. Dutta Gupta & Ors.( 1) held that where a number of a rating Committee had already pre-judged at least one of the issues that had been raised before it, his inclusion as a member made the Rating Committee and its functioning contrary to law. In Dosa Satyanarayanamurthy etc. v. The Andhra Pradesh\n\nen 59 c.w.N. 162.\n\nState Road Transport Corporation ( 1) the Minis till' in charge of the portfolio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services. It was contended there that the same. Minister could not be a Juclge in his own case as he was biased against tl:!e private operators.\n\nThat contention was negatived by this Court. It was pointed out that any decision arrived at by the Sub-Committee was not final or irrevocable and it was only a policy decision.\n\nThe sub-committee was only meant to advise the State Government how to implement the policy of nationalisation. That could not either expressly or by necessary implication involve a predetennination of the issue. The Minister, therefore, could not be said to have any such bias disqualified him from hearing objections under _ Chapter IV-A of the Act in which s. 68•D occurs. This case is quite apposite for disposing of the submission based on bias.\n\nTh~ second reason advanced in support of the challenge to the schemes is based on what is described as complete absence of coordination so far as the various schemes are oncemed. The objectionable feature of the schemes is stated to be that there was no proper coordination of the services on the various routes which are to be nationalised and which should have been done by an integrated scheme. We are unable to see that if the schemes conformed to the requirements of s. 68-C why they should be struck down on the only ground that routes were to be nationalised as and when pennits of private operators on those routes expired.\n\nSection 68-C pennits the State Transport undertaking to oprate a service in relation to any area or route or even a portion thereof and to the exclusion complete or partial, of other per; ons. The decision in Shrinivasa Reddy & Others v. The State of Mysore & Others(') can be of no avail to the appellants because no question arose of coordination of service on the various routes which were to be nationalised and in respect of which the .nationalisation was to become effective from different dates. In that case it was pointed out that piecemeal nationalisation of a particular route is not permissible. It is quite clear that each route can be nationalised and it is difficult to comprehend that when the law empowers that to be done any further conditions should be superimposed of coordinating the services on all the routes which are proposed to be nationalised.\n\nThe follO\\\\ing observations with regard to the above decision in Dosa Satyanarayanamurthy's case explain the law on the point :\n\n\"This Court did not lay down that there cannot be any phased programme in the nationalisation of transport services in a State or in a district nor did it hold\n\n(l) [1951] l S.C.R. 642.\n\n(2) (1960) 2 S.C.R. ll-0.\n\nthat there cannot be more than one. scheme for a district or a part oi a district, the observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by dis-· criminating against some operators and in favour of others in respect of a single scheme\".\n\nLearned Counsel for the appellants laid a great deal of empha~ sis on the manner in which the policy decisions were taken by the Gove.rnment and the mandatory language contained in the Government Orders already referred to which hardly left any discretion or choice to the authority considering the objections under s. 68-D of the Act. We are unable to see how any authority who exercises individual power under s. 68-D is bound by what has been stated\n\nas a policy decision of the Government. In fact his main function is to hear such objections as may be re(erred to the schemes published under s. 68C and approve or modify the s.chemes so published after giving an opportunity to. the objector. His function being of a quasi-judicial nature he is to bring a judicial approach to the matter and even if he happens to be a servant of the government he is not bound in any way to carry out or endorse the policy of the Government without discharging his duties as contemplated by s. 68-D. We are unable to hold nor has anything been shown to us except the suggestion that the schemes as. published under s. 68-C were approved in toto that the authority acting under s. 68-D had not discharged his duties in a proper and judicial manner. The mere fact that the schemes were approved without any modification cannot establish that the Secretary, H<me who exercised the functions of the State Government under s. 68- D had failed to carry out his functions as laid down in s. 68-D or that he had approved the schemes without any modification merely because the Government orders contained language of mandatory nature.\n\nIn the result these appeals fail and they are dismissed but owing to the nature of the points raised there will be no order as to costs.\n\nS.B.W.\n\nAppeals dismissed:.", "total_entities": 183, "entities": [{"text": "T. GOVINDARAJA MUDALIAR ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "T. GOVINDARAJA MUDALIAR ETC. 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"Art. 31", "label": "PROVISION", "start_char": 18162, "end_char": 18169, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Fourth Amendment F Act 1955", "statute": "the Constitution Fourth Amendment F Act 1955"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 18314, "end_char": 18321, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Fourth Amendment F Act 1955", "statute": "the Constitution Fourth Amendment F Act 1955"}}, {"text": "clause 1", "label": "PROVISION", "start_char": 18422, "end_char": 18430, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Fourth Amendment F Act 1955", "statute": "the Constitution Fourth Amendment F Act 1955"}}, {"text": "Clause 1", "label": "PROVISION", "start_char": 18481, "end_char": 18489, "source": "regex", "metadata": {"linked_statute_text": "the Constitution Fourth Amendment F Act 1955", "statute": "the Constitution Fourth Amendment F Act 1955"}}, {"text": "Article 31", 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"label": "PROVISION", "start_char": 24471, "end_char": 24484, "source": "regex", "metadata": {"linked_statute_text": "The rival contentions which were advanced were that the effect of the change made by the Constitution First Amendment Act 1951", "statute": "The rival contentions which were advanced were that the effect of the change made by the Constitution First Amendment Act 1951"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 24569, "end_char": 24576, "source": "regex", "metadata": {"linked_statute_text": "The rival contentions which were advanced were that the effect of the change made by the Constitution First Amendment Act 1951", "statute": "The rival contentions which were advanced were that the effect of the change made by the Constitution First Amendment Act 1951"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 24927, "end_char": 24934, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19( 1)", "label": "PROVISION", "start_char": 25178, "end_char": 25189, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25435, "end_char": 25442, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25778, "end_char": 25785, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25866, "end_char": 25873, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 25982, "end_char": 25989, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 26091, "end_char": 26098, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 26115, "end_char": 26122, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 26476, "end_char": 26483, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 26637, "end_char": 26647, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 26780, "end_char": 26793, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Shah", "label": "JUDGE", "start_char": 27187, "end_char": 27191, "source": "ner", "metadata": {"in_sentence": "Shah J., delivering the judgment of the Court said at page 456 :-\n\n\"By imposing restrictions upon the right to hold a fair, the citizens are not depriyed of their property, and the freedom guaranteed by Art."}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 27390, "end_char": 27400, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19( 6)", "label": "PROVISION", "start_char": 27743, "end_char": 27754, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 1916", "label": "PROVISION", "start_char": 28121, "end_char": 28130, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Akadshi Padhan", "label": "OTHER_PERSON", "start_char": 28418, "end_char": 28432, "source": "ner", "metadata": {"in_sentence": "According to the clear instance given in Akadshi Padhan's case to which reference has already been made a law relating to such a monopoly would not normally infringe the citizens' fundamental right under Art."}}, {"text": "Art. 19( 1 )(f)", "label": "PROVISION", "start_char": 28581, "end_char": 28596, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Natesan", "label": "OTHER_PERSON", "start_char": 28603, "end_char": 28610, "source": "ner", "metadata": {"in_sentence": "Mr. Natesan for the appellants has pointed out that while promulgating the schemes of nationalisation temporary permits have been granted to the State Road Undertaking and the compensation which is sought to be paid t9 the permit holders is either nil or too small and there is no provision for payment of any compensation the operators for being deprived of the transport business or for the effect of the non-renewal of their permits.", "canonical_name": "M. Natesan"}}, {"text": "Section 68", "label": "PROVISION", "start_char": 29642, "end_char": 29652, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 30151, "end_char": 30158, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 30287, "end_char": 30294, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 30310, "end_char": 30317, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 30410, "end_char": 30417, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 30521, "end_char": 30531, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 68", "label": "PROVISION", "start_char": 31688, "end_char": 31693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 31986, "end_char": 31991, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 32027, "end_char": 32033, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 32119, "end_char": 32124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 32306, "end_char": 32311, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 32501, "end_char": 32506, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 32739, "end_char": 32758, "source": "ner", "metadata": {"in_sentence": "Learned single Judge of the Calcutta High Court in East India Electric Supply & Traction Co., Ltd. v. S. C. Dutta Gupta & Ors.("}}, {"text": "State Road Transport Corporation", "label": "RESPONDENT", "start_char": 33135, "end_char": 33167, "source": "ner", "metadata": {"in_sentence": "State Road Transport Corporation ( 1) the Minis till' in charge of the portfolio of Transport had presided over the sub-committee constituted to implement the scheme of nationalisation of bus services."}}, {"text": "Chapter IV-A of the Act", "label": "STATUTE", "start_char": 33979, "end_char": 34002, "source": "regex", "metadata": {}}, {"text": "s. 68", "label": "PROVISION", "start_char": 34012, "end_char": 34017, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV-A of the Act", "statute": "Chapter IV-A of the Act"}}, {"text": "s. 68", "label": "PROVISION", "start_char": 34576, "end_char": 34581, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV-A of the Act", "statute": "Chapter IV-A of the Act"}}, {"text": "Section 68", "label": "PROVISION", "start_char": 34737, "end_char": 34747, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV-A of the Act", "statute": "Chapter IV-A of the Act"}}, {"text": "Dosa Satyanarayanamurthy", "label": "OTHER_PERSON", "start_char": 35674, "end_char": 35698, "source": "ner", "metadata": {"in_sentence": "The follO\\\\ing observations with regard to the above decision in Dosa Satyanarayanamurthy's case explain the law on the point :\n\n\"This Court did not lay down that there cannot be any phased programme in the nationalisation of transport services in a State or in a district nor did it hold\n\n(l) [1951] l S.C.R. 642.", "canonical_name": "Dosa Satyanarayana Murthy"}}, {"text": "s. 68", "label": "PROVISION", "start_char": 36580, "end_char": 36585, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 36676, "end_char": 36681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68C", "label": "PROVISION", "start_char": 36861, "end_char": 36867, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 37244, "end_char": 37249, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 37368, "end_char": 37373, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 37430, "end_char": 37435, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 37671, "end_char": 37676, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 37734, "end_char": 37739, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_236_261_EN", "year": 1973, "text": "JANKI PRASAD PARIMOO & ORS. ETC. ETC.\n\nv:.\n\nSTATE OF JAMMU & KASHMIR & ORS.\n\nJanuary 10, 1973\n\n{S, M. SIKRI, C.J., A. N. RAY, D. G. PALEKAR, M. H. BEG AND\n\nS. N, DWIVEDI, JJ.] The Jammu & Kashmir Civil Services Classification Control and Appeals) Rules 1969-Selection for promotion of teachers to JJOtlS of Jieadmaster and higher posts-Selection to be on merit-c=\"'eniority basis--Selection on basis of interview only without taking into aceount .character roll and confidential reports of candidates and by adopting o very\n\n/ow curting score cannot he upheld.\n\nJammu & Kashmir Scheduled Castes and Backward Classes (Restl\"' vation Rules) 1910-Backward clarses, what are-Principles for deter- mining-Rules whether violative A.rt. 16(4), Constitution of India.\n\nOn 14·6-1956 the State of Jammu & Kashmir promulgated the Jammu & Keshmir Civil Services (Classification O>ntrol & Appeals) Rules 1956. Rule 19 provided that re,.rvation was permitted to be made in favour of any backward class which in the opinion of the Government, was not adequately represented in service, Rule 25(2) related to promotions which were to be made on merit-cum-seniority 'basis. The State, relating Muslims a8 a backward clasa gave them a reservatio, n of 50% in the matter of promotion of teachers to the post of headmasters. This Court in Triloki Nath v. State of Jam1nu &: Kashmir, [1967] 2 S.C.R. 265 and Makhan/al Woza & Ors. v. State of Jammu & Kashmir & Ors,, [1971] 3 S.v.R, 832 held that the promotions of muslims to the posts of headmasters or teachers in-charge were made on the basis of a communal policy and against the aforesaid 1956 Rules, After the decision in Mak/Jan/al Maza's. case the State by an order dated 23·2-1971 reverted all those teachers who had officiated as headmasters or had been designated as teachers-in-charge. A Departme:ntal Promotion Committee was appointed in accordance with the rules and the Committee was directed to interview the candidates. The interviews were held rom March to July 1971. The selections were to be made in accordance with the Jammu & Kashmir Civil Services (Clossification Central and Appeals) Rules 1969 which had replaced the old rules of 1956.\n\nMeanwhile In accordance with the recommendations of the Backward Cldsses Committee the State Governme'llt had also issued on April 18, 1970 the Jammu & Kashmir Scheduled Castes & Backward Cfasses (Reservation Rules) 1970. Later, on August 8 .• 1970, a further order was passed known as Jarnmu & Kashmir Scheduled Castes & Backward Classes (Reservation of appointment by Promotion) Rules 1970.\n\nThe present petitioners were adversely affected by the selections made by the aforesaid Departmntal Promotion' O>mmittee In 1971. l:n their petitions under Art. 32 of the Constitution the ques lions that fell fulconsideration were : (i) whether the selections made after interviews were improper and illegal and should be set aside;\n\n(ii) whether the Rules of reservation of posts in favour of backward classes are in violation of Art, 16 of the Constitution and should be set asic1t:.\n\nHELD : (i) Undoubtedly wht!ll> appointments to higher posts are ·-made it may be perfectly legitimate to test the candidates at a properly •conducted interview. But interview cannot be made the aole test lll\n\nJ, P, PAll!MOO V, J, & K. STATE 237\n\ncases of this kind. The efficiency of a teacher and hi~ qucatio~ to be appointed as Headmaster depend on several cons1derations. HIS character, his teachi:ng experience, ability to manage his class, his popularity with, the students and the high proportion of successful students be is able to produce are all matters which must be necessarily taken into consideration before a selection is made.\n\nFor this any Committee which desires to mnke a seLection after interview should insist that the character roll and the service record of the teacher should be befdre it.\n\nIn the present case however the Comm:ittee did t have before it either the character rolls or service records of the teachers nor any confidential reports about them. They had to go merely by the result of the interview.\n\nThe Committee was wrong in undertaking to make the selections on the basis of mere interviews. [246 D]\n\nFurther, the expert adviser had advised 50% as the cutting score)> but the Committee adopted 30% as the cutting score.· The expert found that there were ma:ay candidates who could not score even 30% marks and so the Committee decided that even candidates who got only 20% marks from the expert may be considered. In this way those who got more than 30% marks from the Committee and more than 20% marks from the expert were declared eligible for selection.\n\nThis was indeed a travesty of selection. A selection made on such a poor basis cannot be called a selection at all. (248 H]\n\n' For the reasons given above the whole process of selection must be held to be Mong ali:d unsatisfactory.\n\n(ii) 'Art. 15(4) speaks about \"socially and educationally backward classes citizens\" while Art. 16(4) speak only of \"any backward classes of citizens\".\n\nHowever it is now settled that the expression \"backward class of citizens\" i; n Art. 16( 4) m011ns the same thing as the expression \"any socially and educationally backward class of citizens\" in Art. 15(4).\n\nIt is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4). [249 G]\n\nMere povrty cannot be the test of backwardness because in this country except for a small percentage of the population the people are ge; nerally poor-some being more poor, others less poor.\n\nIn the rural areas some sectors of the population are advancing socially and educa~ tiona1ly while other sectors are e.pathetic.\n\nThese sectors require to be goaded into the social stream by positive efforts by the State. That accounts.for the raison d'etre of the principle explai:oi.!d in Balc.ji's case which pointed out that backward classes for whose improvement specifil provision was contemplated by Art. 15(4) must be comparable to Sche duled Castes and Scheduled Tribes who are standing examples of backwardness socially and educationally. If those examples are steadily kept before the mind the difficulty in determinin2 which other classes should be ranked as backward classes will be considerably lased (252 DJ\n\nJn identifying ba>kward classes one has to guard oneself against including therein sections which are sociaUy and educatio.nally advanced because the whole object of reservation would otherwise be frustrated.\n\n[253 D] H M. R. Balaji and Ors. v. State of Mysore, [1963] Supp. 1 S.C.R.\n\n\nSmte of Mysore. [1%4] 6\n\nS.C.R. 368 referred to.\n\n(iii) The Jammu & Kashmir Scheduled Castes and Backward Classes (Reservation Rules) 1970 were defective ood incapable of being given effect to for the followg reasons :\n\n(a) Several of the occupations mentioned as traditional in Rule 4 Chapter I cannot be regarded as traditional.\n\nAn agricultural labourer is just a labourer whose services are utilised wherever unskilled labour is required.\n\nHis occupation cannot be identified as a traditional occupatiom.\n\nSimilarly it is difficult to say that the occupations mentioned in items (5), (7), (11), (20), (21), (23), (29), (48), (51), (53), (58) and (62) of Rule 4 are traditional.\n\nThese occupation do not require special skills developed by tradition and can be resorted to by any body with the requisite resources.\n\n(b) Priestly classes listed at Serial Nos. 34 and 56 though following a traditional profession can hardly be regarded as socially and educationally backward.\n\n(c) The definition of 'traditional occupation' in rule 2(j) is open to serious objection.\n\nUnder it if a person wants the special advantage as a member of the backward class it is enough for him to show that bis grand father was following a traditional occupation. His father may not be following the traditional occupation at all. If the father of the person who claims special treatment uinder Articles 15 ( 4) ood\n\n16( 4) has given up his low income occupation and become a trader or Government Servant it will be wrong to give the persons the special benefit merely on the ground that his grandfather was following a certaiin traditional occupation.\n\n(d) It was not known on what basis the Government in Rule 5 had included cast.es mentioned at serial Nos. 20 to 23 as socially and educationally backward.\n\n( e) The designation of cultivators of la.\"'1 as backward on the basis of the sire of the holding, as bad been dooe in Chapter III of the Rules must be held to be erroneou_s.\n\nThe error in such a case lies in placing economic consideraion alone above considetations wb.'ich go to show whether a particular class is socially and educationally backward,\n\n(f) The same error is repeated in Chapter IV wherein the dependent .of a peinsioner is supposed to belong to the backward class if such\n\npensioner has retired from certain Government posts mtioned in Appendix I and if the maximum of the scale of pay of these wsts did not exceed Rs. 100/. p.m. In days when sources of employment were few many people though socially advanced might have accepted low paid jobs.\n\n(g) Although the resideu>ts of certain areas specified in Chapter V and VI of the Rules are rightly da.ignated as backwa; rd, Rules 10 Gnd. 11 have been framed that the advantage. is likely to be misused by unporters.\n\nOutsiders who, in the course of their trade or business happened to live in these areas for 10 years out of the pa.st 20 years would be able to claim the benefit. This loophole must be plugged and till that is done, tbe production of a certificate from tbe Tehsildar as fo the backwardness of any person will be of little avail.\n\nLn view of the abGve findings the selections made by the Departmental Promotion Committee must be set aside. [260 CJ\n\nJ. \"· PAR!MOO v. J. & K. STATE (Palekar, J.) 239\n\n[Since it would take time to revise the rules and to make new selections the Court gave directions to be followed by the State authorities]. _\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 175, 359 and 360 of 1971.\n\nPetitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.\n\nA. K. Sen, Naunit Lal and I. N. Shroff, for the Petitioners (in all the petitions)\n\nS. V. Gupte, 0. C. Mathur, P. C. Bhartari and Bhuvanesh Kumari, for respondents Nos. 1 and 2 (in W. P. Nos. 175 and 359)\n\n0. C. Mathur, P. C. Bhartari and Bhuvanesh Kumari for respondents Nos. 1 & 2 (in W.P. No. 360).\n\nM. C. Chagla and S. N. Prasad, for respondents Nos. 3-5, D 8-10, 14, 16, 17, 19, 20-24, 31-34 (in W.P. No. 175) ·\n\nE. C. Agarwala, for respondents No 6, 27 (in W.P. No. 175)\n\nJagmohan Khanna, for respondents No. 30 (in W.P. No. 175)\n\nThe Judgment of the Court was delivered by\n\nP ALEKAR, J.\n\nThese three petitions under Article 32 are a sequel to the action taken by the State of J ammu & Kashmir in pursuance of the order passed by this Court in Makhanlal Waza &\n\nOrs. v. State of Jammu & Kashmir & Ors. on February 23, 1971.\n\nIn order to understand the background of these cases it would be sufficient to state here in bare outline the facts which are given in greater detail in the aliove case reported in [1971](3) S.C.R. 832.\n\nOwing to historical reasons there was a large proportion of Kashmiri Pandits in the serviCes of the State, especially, in the teaching line, although that community is hardly 2 % of the totlll population of the State.\n\nIn cours' of time other communities who were in a majority in the State agitated for a larger share in the services, with the result that prior to 1954 recruitment was made to the services in proportion to the population of the major communities in the State.\n\n; In 1954 Part III of the Indian Constitution with some modi5cations was made applicable to the State. In spite of it representation in the services followed the communal pattern. On 14th June 1956 the State promulgated the Jammu & Kashmir Civil Services (Classification Control & Appeals) Rules, 1956. Rule 19 provided that reservation was permitted to be made in favour\n\nof any backward class which, in the opinion of the Government, was not adequately represented in the service.\n\nRule 25 ( 2) related to promotions. It provided that promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit aQ.d ability and hall be subject to the passing of any tests that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal. In other words, promotions were to be made by selection on merit-cum-seniority basis. Notwithstanding the rules, the State followed the communal pattern of appointments and promotions, reserving 50% of the posts for Muslims, 40% mainly to the Hindu of Jammu and the remaining 10% for Sikhs, Kashmiri Pandits and other minority communitie3. This led to an agitation, especially, by the teachers in the Secondary .\n\nHigh Schools of the State who comprised a large proportion of Kashmiri Pandits.\n\nThey found that in spite of their seniority in the. service as teachers, promotions to the post of Head Masters and Tehsil Education Officers which are gazetted posts in the service, were being made on communal basis and not in accordance with the law.\n\nIn December 1965 Triloki Nath Tikoo and Shambu Nath filed Writ Petition No. 107 of 1965 in this Court allegingthat promotions to the posts of Head Masters had been made in contravention of Article 16 of the Constitution. The State admitted that 50% of the posts were filled by the Muslim of the State and 40% principally by the Hindus of Jammu. It was. however. claimed that this reservation was made on the ground that the Muslims of the State and Hindus of J ammu province constituted backward classes referred to in Rule 19 and such reservation was justified under clause ( 4) of Article 16. The Court found that there was no sufficient material before it to decide if the claim made on behalf of the State was justified and so by an order dated December 15, 1966 directd the High Court of Jammu & Kashmir to gather the necessary material and to report on it. The decision is reported as Triloki Nath v. State of lammu & Kashmir.(')\n\nAfter the material. was collected the case again came before this Court for consideration and this Court held (See : Triloki Nath G\n\nv. State of J&K.}( 2) that on the material before it it was clear that there was no reservation as penhitted by Article 16( 4) but that the posts had been distributed on the basis of community or place of residence.\n\nThe promotions were accordingly held to be invalid .. The order affected 81 teachers who had bCen promoted\n\nconacy to the provisions. of Article 16 (l ) and ( 4) . Their pt!>- H motions were declared void.\n\nThe Court observed \"this will not, .\n\n(I) f1951] .2 S.C.R. 26S.\n\n(2) [1969] !S.C.R.103\n\nhowever, prevent the State from devising a scheme, consistent with the constitutional guarantees, for reservation of appointments, posts or promotions in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.\" This order was passed by the Court on April 23, 1968.\n\nIn view of the order. the above mentioned 81 teachers had to revert. Along with them some others who had been promoted in the meantime had also to revert.\n\nAll of them were, however, designated as teachers-in-charge because actually they held the charge of the schools.\n\nThere is a difference between the parties before us as to whether there was any actual reversion.\n\nIt is alleged on behalf o' th~ petitioners that teachers-in-charge were, for all purposes, includi'.1g pay, Head Masters while, on the other hand, it is stated for the State that they were entitled 0nly to the grade pay as teachers and not as Head Masters. In any case there seems to have been an anomalous situation which gave rise to the second Writ Petition by the teachers. That is Writ Petition\n\n108/1969 filed by Makhanlal Waza and 10 Others v. State of Jammu and Kashmir already referred to. To this petition a large number of so called teachers-in-charge were made parties.\n\nActually there were about 249 teachers who wern made respondents.\n\nThis Court found that al! the promotions of the respondents in that case were made not purely on m.erit as requiroo by rule 25 referred to above but had been made on account of the communal policy which had been declared invalid by this Court in Triloki Nath Tikko's case. The Court further observed \"in the absence of any rule lawfully promulgated for employment of backward\n\nclascs, promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolutelv no compliance with the provisions of that rule. Promotions thus made of all the respondent teachers were illegal and unconstitutional being violative of Article 16 of the Constitution.\n\nThey have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with the law\". This order was passed on February 23, 1971.\n\nIn view of the above decision the State had to take steps for making proper selections on the basis of merit to the gazetted posts of Head Masters and Tehsil Education Officer, from the eligible teachers. As a preliminarv to the same the State reverted by an order dated 23-2-1971 all those teacher.s who had officiated as Head Masters or had been designated as teacher;·in-charne.\n\nAll of them were asked to hand over' charge to the second teacher\n\n17-ll!SupCT/73\n\nin the school. Nearly 1,100 teachers were found eligible for promotion and all of them, including those who were officiating Head Masters, were required to appear for an interview.\n\nA Departmental Promotion Committee was appointed in acc0rdance with the rules and the Committee was directed to interview the candidates. These interviews were held from March to July, 1971.\n\nBut before the interviews were over the first of the Writ Petitions before us namely Writ Petition 175/71 was filed by 7 Kashmiri Pandit teachers who had been affected by the order reverting them on 23-3-1971. They were senior teachers who were officiatiiig as Head Masters being appointed between 1960 and 1964 and had not been directly affected by the two Writ Petitions already referred to. They alleged that while they were promi\"tlY reverted respondents 3 to 34 who were all junior to petitioner No. 1 and also to some of the other Petitioners had not been so reverted nor were they asked to appear for the interview.\n\nTherefore, they claimed, the petitioners should be either restored to their former posts or the respondents should be reverted like them in which case alone, all of them could be regarded as having been equally treated. They justified their refusal to appear for the interview on the ground that respondents had been exempted from the interview and continued in their former posts.\n\nWrit Petitions 359 and 360/1971 were filed after the interviews were over and selections made by the Committee.\n\nThe petitioners in Writ Petition No. 359 /71 are 37 in number and all of them belong to the Jammu region. Respondents 3 to 295 are some of the teachers selected for appointment to the higher posts by promotion. The grievance of the petitioners was that although they were seniors and had officiated as Head Masters for a number of years they had been deliberately dropped to make room for the respondents who were very much junior to them. They alleged that the selection by interview was a farce, the device being adopted to manipulate the selections in such a way that the old communal proportion was maintained. They further alleged that a large number of posts was claimed to have been reserved tmder the Rules for backward classes, but the whole exercise was merely to secure about 90% of the posts to Muslims. ln other words, the complaint of the petitioners was that the alleged selection after interview was not a genuine selection but a fraud. Similar allegations were made iri the other petition, namely, Writ Petition 360/\n\n71. This was filed by 13 Kashmiri Pandit teachers in a representative capacity on behalf of 400 other Kashmiri Pandits who had. boycotted the interviews on the ground that the interviews were bound to be a fraud. The respondents 3 to 3 25 are the teachers who had been selected at the interview.\n\nH ...\n\nIt must be stated here that in 1967 the Government of Jammu & Kashmir had appointed the J ammu & Kashmir Commission of Enquiry under the Chairmanship of Dr. P. B. Gajendragadkar.\n\nIts report was submitted in November, 1968 and one of the recommendations of the Commission was to appoint a high-powered Committee to draw up a list of backward classes in the State of Jammu & Kashmir.\n\nAccordingly, the Backward Classes Committee was appointed under the Chairmanship of Shri J. N. Wazir, Retired Chief Justice of J ammu & Kashmir High Court, on February 3, 1969. This Committee made its report in November. 1969 recommending several classes of citizens who deserved to be described as socially and educationally backward.\n\nActing substantially on the recommendations of the Committee the State Government issued on April 18, 1970 the Jammu & Kashmir Scheduled Castes and Backward Classes (Reservatioa Rules),\n\n1970. These rules purported to make provision for reservations of appointments and posts in favour of certain classes of permanent resident of the State who were backward and not adequately represented in such services and posts. Later on August 8, 1970 a further order was passed by the State known as Jammu & Kash mir Scheduled Castes and Backward Classes (Reservation of appointment by Promotion) Rules. 1970. By these rules the principles laid down for appointments under the earlier rules were made applicable mutatis mutandis to promotions also.\n\nThe net result of the recommendations of the Committee as accepted by the State was to make reservations in appointments and promotions to the extent of 8 % of the posts for Scheduled Castes and 42 % in favour of the Backward classes. -\n\nSince the above interviews had taken place after the application of the above named Reservation Rules, the Departmental Promotion Committee took these rules into consideration in making the selections.\n\nIt is one of the complaints of the petitioners that though the Committee had professed to follow the principles laid down by this Court in several decisions, it had failed to determine the backward classes in accordance with the decisions of this Court. On the other hand, great anxiety was shown, according to the petitioners, to rope in as many persons from the majority communities as possible so that in the selections made thereafter a disproportionate share in the appointments and promotions would go to the majority communities in Kashmir and Jammu.\n\nIn their affidavit in reply to the petitions the State denied all the allegations made by the petitioners.\n\nThe principal points which were involved in these two petitions are ( 1 ) whether the selections made after interviews are improper\n\nund illegal and should be set aside, (ii) whether the Rules of reservation of posts in favour of backward classes are in violation of Article 16 and should be set aside.\n\nBefore dealing with these points, we shall dispose of the limited controversy involved in Writ Petition No. 175/71 although the conclusion on the above two points may indirectly affect the parties in the Writ Petition.\n\nThe latter is filed by 7 Kashmiri Pandit teachers. They were all officiating Head Masters when they were reverted in 1971. Their grouse is that respondents 3 to 34 were junior to them when they were inthe teachers' grade from which the promotions were made to the Head Masters' grade, and, if the principle of equality applied, they should have been also reverted along with the petitioners and required to appe&r at the interview along with the petitioners. On account of this unequal treatment, it is alleged, the petitioners had refused to appear for the interview. It cannot be disputed that petitioner No. 1 was the senior-most in the grade of teachers from which the promotion is m!Jde to the post of the Head Master or Tehsil Education Officer. The other petitioners also are seniors to some of the respondents. But what happened is that owing to the communal distribution of seats the respondents 3 to 34 were all appointed as Head Masters in and before 1958. The petitioners had to wait their tum in the 10% seats earmarked for Kashmiri Pandits and others and, therefore, although they were senioi:s in the grade of teachers, their chance of appointment as Head Masters came much later.\n\nPetitioner No. 1 was appointed as an officiating Head Master in 1960. Petitioners 2 and 3 in 1962 and petitionern 4 to 7 in 1964. Thev all officiated as Head Masters till 1971 when they were reverted. In the case of respondents 3 to 34 not only were they promoted prior to 1958 but, except for respondents 26, 27 and 30, they had all been confirmed in the Head Masters' posts before 1961.\n\nSome of the respondents were further promoted as Principals and District Education Officer• which was a grade higher than that of Head Masters.\n\nSomehow it appears respondents 26, 27 and 30, though holding such higher grade posts, had notbeen confirmed as Head Masters and they too were reverted as soon as this petition was filed. It is not necessary for us to investigate into the question why these 3 respondents had not been confirmed dlthough some other respondents who were junior to them had been confirmed as Head Masters. It might be simply an administrative omission or something also. But one thing is clear.\n\nAll these respondents 3 to 34 had been appointed as Head Masters much before the petitioners and ; nost of them were also confirmed in the posts.\n\nThere may be sonie substance in the petitioners' contention that the earlier appointment of these respondents, being based on the communal principle, was not a\n\nJ, P. PAIUMOO v. ; J, & K. STATE (Palekar, I.) 245\n\nvalid appointment and, therefore, their confinnation may not affect the question.\n\nOn the other hand, it is to be noted that the respondents seem not to have figured in Triloki Nath Tikoo's case (W.P. 107/1965) filed in 1965.\n\nIt would not, !herefore, be proper to interfere with their appointments now, especially, as in the meantime they have been promoted to posts which are higher than of Head Masters.\n\nIndeed if any one of the respondents was a respondent in Writ Petition 107/1965 (Triloki Nath Tikoo's case) or in Writ Petition l 08/ 1969 (Makhanlal's case) in which his appointment as He<1_d Master had been set aside as invalid, his case will have to be treated like that of any other offi, ciating Head Master who had been reverted in 1971. Otherwise we do not think that it would be right to interfere, at the instance of the petitioners, with these respondents whose appointments as Head Masters had been made in or before 1958.\n\nWe shall now tum to the two points referred to above arising out of Writ Petitions No. 359/71 and 360/71. The first point involves the question whether the selection by interviews held by the Departmental Promotion Committee between Mar. 15, 1971 and July 18, 1971 for the purposes of making promotions to the posts of Head Masters and Tehsil Education Officials was a valid and proper exercise. The Department found more than 1100 teachers qualified for promotion and they were all called for interviews.\n\nThe selection was to be made in accordance with the Jammu & Kashmir Civil Services (Classification Control and Appeals)° Rules, 1969 which, it appears, had replaced the old rules of 1956.\n\nIt appears to us that, there is no distinction between the two rules because even as under the 1956 rules the posts of Head Masters had to be filled on the merit-cum-seniority basis, under the 1969 rules also selections had to be made on that basis only.\n\nFrom the beginning, it appears, some of the senior teachers, mostly coming from the Kashmiri Pandit class, did not have any faith in this system of selection and actually more than 400 of them boycotted the interview. Several allegations have been made that even before and during the period when the interviews were going on many in high authority were giving assurances to some of the reverted teachers that whatever happens those who had been reverted would get their posts back if only they appeared fo• interviews.\n\nWe are not concerned with these allegations.\n\nIt was also alleged that the selections were stagemanaged with a view to maintain the old proportion of communal representation. It was pointed out that when previously the appointments were made on the communal basis, 178 posts had gone to Muslims and 134 to Jammu Hindus. Now after selection, 177 posts go to Muslims and 134 to Hindus. It is submitted on behalf of the petitioners that it could not have been\n\na mere coincidence that the same number of Muslims and Hindus could have been selected in any properly conducted system of selection. It is contended on behalf of the State that if only the Kashmiri Pandit teachers had taken part in the interview, it was very likely that the results might have been somewhat different. There is some substance in that contention also and, therefore, we shall not go merely by the coincidence that the same number of Muslims and Jam vi Hindus had been selected.\n\nThere are, however, two important considerations which show that the selections by interview were thoroughly unsatis factory.\n\nThe candidates for selection included a large number of senior teachers many of whom liad officiated as Head Masters over long periods.\n\nThey were asked to appear before a Com-·· mittee consisting of 4 officials. One was a Member of the Public Service Commission, the second was the Secretarv of the Education Department, the third was the nominee of the Chief Secretary and the fourth member was the Director of Education. The Committee was also assisted by an Educational expert from outside the State and this body was expected to make the selection after interviewing the candidates.\n\nUndoubtedly when appointments to higher posts are made it may be perfectly legitimate to\n\ntest the candidates at a properly conducted interview.\n\nBut it appears to us that the interview cannot be made the sole test in cases of this kind. The efficiency of a teacher and his qualifications to be appointed as Head Master depend upon several con- E siderations.\n\nHis character, his teaching experience, ability to manage his class, his popularity with the students and the high percentage of successful students he is able to produce are all matters which must be necessarily taken into consideration before a selection is made.\n\nFor this any Committee which desires to make a selection after interview should insist that the character roll and the service record of the teachers should be before it.\n\nAt the time of these interviews, however, the Committee did not have before it either the character rolls or service records of the teachers nor any confidential reports about <hem.\n\nThey had to go merely by the result of the interview. In his affidavit the Educational Secretary has admitted that such confidential records were not made available to the Committee and the reason given was as follows ·\n\n\"Necessary service records in respect of confidential rolls or character rolls of all the eligible candidates for the last few years were not available.\n\nMoreover the\n\nnumber of candidates was very large.\" H\n\nIt is rather extraordinary that such a statement should be made by a high official of the Government. It is difficult to conceive\n\nthat confidential reports were not available. The statement does not make it clear whether all the confidential reports were not available or only a few of them or for what years.\n\nThe statement. is so vague that it is difficult to accept it.\n\nWhenever appointments to gazetted posts are made and have to be approved by the Public Service Commission, confidential reports must be forwarded to the Commission, for otherwise it is difficult to see how the Public Serviee Commission can approve the appointments. It may happen that in a few cases the confidential records may be lost or missing.\n\nBut to deprive the Committee of the benefit of these reports on the ground that such reports of all the eligible candidates for the last few years were not available would be ridiculous. The very fact that some other reason was necessary to be given, namely, that the number of candidates was very large goes to show that the first reason given by the official was considered by him as not altogether satifactory. All the available reports ought to have been produced before the Committee and if any was lost or not available it was the duty of the Department to ca!l for confidential reports afresh from authorities who had opportunities to observe the character and work of the teachers concerned. All the schools are Government schools and they must have been inspected from time to time by the Educa tion Officers or Inspectors. Their reports could have been called to aid the Committee in its deliberations.\n\nWe consider that the Committee was wrong in undertaking to make the selection on the basis of mere interviews.\n\nIt would appear from the affidavit filed on 6ehalf of the State that out of the total of 50 marks to be given to the candidate, 20 marks were allotted for general knowledge, 20 marks for aptitude and 10 marks for personality. An assessment of the merit of a teacher was to be made in a short half hour or even less.\n\nThe petitioners have criticised the system of interviews in these words :\n\n\"Personality connotes traits in one's character and not merely physical appearance or muscular strength.\n\nTheir ability to control the students and administer the work of a school could not possibly be tested by a viva voce test.\n\nFor this purpose the service rcord and personal files of the candidates were the bet criteria for assessing the suitability and merit.\n\nUnfortunately for reasons best known to them the authorities never placed the service record and personal files before the Departmental Promotion Committee members. The rich experience gained through his cat\"'.er in the service, teaching and administrative quality. discipline, punctuality, regularity, popularity ability to carry on\n\nwith staff, qualities to tone up the schools to create healthy tradition and create interest among the students in extra curricular activities which were the most relevant aspects and would have been known to the members of the interviewing committee from the service and personal records of the candidates.\"\n\nThere is considerable force in the above criticism.\n\nThe second consideration is th.e wholly inept way of making selections. Selection means that the man selected for promotion must be of merit. Where promotion is by seniority, merit takes the second place but when it is a selection, merit takes the first place and it is implicit in such selection that the man must not be just average.\n\nWhen responsible posts are filled by selection, cases are known where selections are not made because candi\" dates of the required merit were not available. It is, therefore, customary for a Committee making the selection to fix a standard below which they should not go.\n\nIn fact it appears from the affidavit filed by one of tl)e Educational erts who assisted the Committee that he had iuggested \"that an optimum cutting score for selection should be at least 50% . \" In other words, his advice was that those candidates who got more than 50% marks alone should be considered. The affidavit is of Dr. N. K. Dutt, Reader in Education, Central Institute of Education, Delhi who was the very first expert who sat with the Committee at the time of the selection. Dr. Dutt says that his suggestion for optimum cuting score of not less than 50% had been favourably received by the Departmental Promotion Committee. He further says that every member of the Committee and the advisor were each required to make his own assessment and give the marks out of the maximum 50 marks fixed for a candidate. In a counter affidavit filed on behalf of the State by the Education Secretary the statements made by Dr. Dutt in his affidavit, though referred to, are not controverted.\n\nBut the actual marking results show .an entirely different story. The four members of the Committee made their independent assessment and an average was taken representing the marks received by a candidate, According to the affidavit filed on behalf of the State instead of following the suggestion of the expert, the Committee fixed 30% instead of 50% as the optimum cutting score. 30% is generally considered to be less than just pass marks, being less than one third of the maximum, and it would be absured to make selections with such a cutting score.\n\nThe expert adviser had advised 50% as the cutting score but the Committee adopted 30% as the cutting score. The export advisor had advised 50% as the cutting score but the Committee adopted 30% as the cutting score.\n\nThe expert found that there were many candidates who could not\n\nscore even 30% marks and so the Committee decided that even candidates who got only 20% marks from the expert may be considered.\n\nIn this way those who got more than 30% marks from the Committee and more than 20% marks from the expert were declared eligible for selection. This is indeed a travesty of selection.\n\nThe Secretary has clearly stated in his affidavit that in fixing the qualifying minimum percentage to determine the suitability of the candidate, the candidate need have obtained 30% marks and above from the Committee and 20% and above from the expert. We consider that a selection made on such a poor basis cannot be called a real selection at all. For the reasons _given above therefore we think that the whole process of selection is wrong and unsatisfactory and must be set aside.\n\nWe have now to tum to the second point involved in the case namely, reservations in favour of backward classes.\n\nWe are not concerned in this case with reservations made in favour of the Scheduled castes.\n\nAccording to the reservation rules already referred to, 8 % of the posts are reserved for Scheduled Caste candidates and 42% in favour of backward classei. According to the figures given by the State, 163 candidates were selected against unreserved vacancies and 136 candidates were selected against reserved vacancies in favour of backward classes.\n\nThis, however, did not mean that a backward class candidate could not be selected to the unreserved vacancies on merit.\n\nA backward class candidates can come under the rules in the unreserved vacancies also solely on merit. We are not concerned here whether such a rule is proper when a large percentage of 42 % is reserved for the backward classes. We are, however, concerned with the fundamental question as to whether the Rules by which backward classes are determined for the purpose of Articles 15 ( 4) and 16 ( 4) of the Constitution are violative of those Articles.\n\nArticle 15 ( 4) speaks about \"socially and educationally backward classes of citizens\" while Article 16(4) speaks only of \"any backward class of citizens.\" However, it is now settled that the expression \"backward class of citizens\" in Article 16 ( 4) means the same thing as the expression \"any socially and educationally backward class of citizens\" in Article 15 ( 4). In order to qualify for being called a 'backward class citizen' he must be a member of a socially and educationally backward class.\n\nIt is social and educational backwardness of. a class which is material for the purposes of both Article 15 ( 4) and 16 ( 4).\n\nMany State Governments had found it difficult to determine which class of citizens can be properly regarded as socially and educationally backward. Several cases have come to this Court and the decision of this Court in M. R. Balaji and others v. State\n\nof Mysore(') is generally regarded as the locus classicus on the A subject.\n\nSeveral other decisions have been rendered thereafter and the passage in a judgment delivered by Shah, J- (as he then was) in State of Andhra Pradesh & Anr. v. P. Sagar( 2 ) summarises the general principles at page 600. It is as follows :\n\n\"In the context in which it occurs the expression \"class\" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some co=on attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the case or community cannot also be accepted. By cl. ( 1), Art. 15 prohibits the State from discriminating against any citizen on ground~ only of religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art. 15 the State is, notwithstanding the provision contained in cl. ( 1), permitted to make special provision for women and children. By cl. ( 4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of clause ( 1). But cl.. ( 4) is an exception to cl. (1).\n\nBeing an exception, it cannot be extended so as in effect to destroy the guarantee of cl. ( 1). 'fl!e Parliament has by enacting cl. ( 4) attempted to balance as against the right of equality of citizens the special necessities - of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be -given to cl. ( 4), it must appear that the benefidaries of the Special provision are classes which are backward socially and educationally and they are other than the Scheduled Castes and Scheduled Tribes, and that the provision made is for their advancement.\n\nReservation may be adopted to advance. the interests of weaker sections of society, but in dging so, care must be taken to see thaf deserving and qualified candidates are not excluded from admission to higher educational institutions. The. criterion for determining the . backwardness must not be based solely on religion, race, caste, sex, or place of birth, and the backwardness being social and educational must be similar to the backwardness from the Scheduled Castes and the Scheduled Tribes suffer.\n\nThese. an; the principles\n\n(1) [1963] Suppl. 1 S.C.R. 439.\n\n\n,.. ..\n\n~ ~; '-'\n\nf ·\n\nwhich have been enunciated in the decision of this coun in M. R. ffalaji's case-(1963) Suppl. 1 S.C.R. 439 and R. Chitralekh and Another v. State of Mysore and others (1964) S.C.R. 368.\"\n\nIt is not merely the 'educational backwardness or the social backwardness which makes a class c( citizens backward; the class identified as a' class as above must be both educationally and socially backward. In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji's ca5e referred to above that backwardness, socially and educationally, is ultimately and primarily due to poverty.· But if poverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations are made only on the ground . of economic considerations, an untenable situation. may arise because even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor-some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they\n\nare bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educationally backward.\n\nThough the two words 'socially' and 'educationally' are used cumulatively for the purpose of describing the backward class, one may find, that if a class as a whole is educationally advanced, it is genera!ly also socially advanced because of the reformative effect of education on that class. The words \"advanced\" and \"backward'' are only relative terms-there being several layers or strata of classes, hovering between \"advanced\" and \"backward\", and the difficult task is which class can be recognised out of these several layers as being socially and educationaily backward.\n\nIn the report submitted by the Backward Classes Committee to the ate of Jammu & Kashmir it is stated that agriculture is the main stay of the State's economy. 90% of the population depends for its living on land. See : Chapter IV para- 38 of the Report.\n\nTherefore, the problem of social backwardness in the State, as elsewhere, is the problem of rural India. Nevertheless so much has been accomplished during the past 25 years for the amelioration of\n\nthe conditions of the rural oor.ulation that rural India of a past generation has no relevance today. Facilities for education which were practiclly non-existent a generation ago are now available at the villagers door-step. In a fonner age it was only the fortunate few 'Yho .got. thi; ough Secondarv education because of paucity of\n\nteachin~ mshtutions. but now the rural areas are studed with Secondary schools at comparatively easy distances.\n\nExcept in\n\nwholly inacceable areas, ev<n colleges are established not far from the rural population. There is hence a growing sector in the village population which firmly believes in education as an instrument of social advancement and more and more of them are receiving education in these institutions. As a matter of fact, the concept of education as a cardinal element in social equipment has so much permeated these sectors that it is almost the measure of social advance they have made recently.\n\nHowever, side by side with these sectors there are still some sectors of the population which show extreme apathy towards education due to age-old customs and habits of living, fostered by poverty, ignorance, superstition and prolonged social suppression. The interests of these sectors must very naturally be the prime concern of the State. Indeed all sectors in the rural areas deserve encouragement but whereas the former by their enthusiasm for education can get on without special treatment, the latter require to be goaded into the social stream by positive efforts by the State. That accounts for the raison d'etre of the principle explained in Balaji's case which pointed out that , backward classes fo~ whose improvement special provision was contemplated by Article 15 ( 4) must be comparable 'to Scheduled castes and Scheduled tribes who are standing examples of backwardness socially and educationally. If those examples are steadily kept before the mind the difficulty in determining which other classes should be ranked as backward classes will be considerably eased.\n\nThe failure to grasp this fundamental requirement has distortecNnvestigations of those who plumped for special reservations for communities which comprised both _advanced and backward groups.\n\nIn R. Chitralekh & Anr. v. State of Mysore & Ors.(') Subba Rao, J (as he then was), speaking for the majority, discarded caste as the dominant criterion in the following words t page 388 :\n\n\"It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not. his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.\n\nThis interpretation wi]] carry out the intention of the Constitution exoressed in the aforesaid Articles. It helps the really backward classes instead of promoting: the interests of individuals or grouos who, though they belong to a particular caste amajority whereof is socially and educationallv backward. really belong to a class which is sociallv and educationallv advanced. To illustrate_. take a cas-te in a State which is numerically\n\n--~---\n\n\nE .rF\n\n._.,, H\n\nthe largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an.effective.minority may be 'socially and educationally. far more advanced than. another small sub-caste the total number of which is far less than the said minority. If we interpret the expression \"classes\" as \"castes\", the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not.\n\nOn the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution.\"\n\nIn identifying backward classes, therefore, one has to guard oneself against including therein sections which are socially and educationally advanced because the whole object of reservation would otherwise be frustrated.\n\nIn this connection it must also be remembered that State resources are not unlimited and, further, the protection given by-special reservation must be ba!iinced\n\nagainst the constitutional right of every citizen to demand equal . opportunity.\n\nMoreover, where appointments and promotions to responsible public offices are made, greater circumspection would be required in making reservations for the benefit of any backward class because efficiency and public interest must always remain paramount. It is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious .\n\nThe Jammu & Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970 are comprised 5 parts. Part I contains 6 Chapters and rule 3 says that the permanent residents of the State. belonging to the categories of persons in these six Chapters are declared as socially and educationally - backward classes of citizens. Chapter I enumerates occupations which are regarded as traditional occupations and rule 4 says that every person whose traditional occupation is one of the 62 mentioned_ therein must be regarded as a person belonging to the backward class. Chapter II mentions 23 social castes, and persons belom;- ing to these social castes are regarded as backward. Chaoter Ill _describes small cultivators as bkward. Chapter IV groups low paid pensioners as backward.\n\nChaoter V puts residents in an area adjoining the ceasefire line in the backward class.\n\nChapter VI specifies some areas in the State as \"bad pockets~ and every.\n\nperson belonging .to that area is to be regarded as belonging to the\n\nbackward class.\n\nWe are not directly concerned with the other parts of these rules.\n\nObjection is taken by Mr. Sen, on behalf of the petitioners, to the several types of backward classes designated under the rules and also to the peculiar manner in which the .definitions have been framed.\n\nChapter I gives the <; lass designated by traditional occupations. In all about 62 occupations have been identified as traditional.\n\nThey follow closely the classes designated as traditional occupational classes by the Committee in Chapter XIV of its report. In para 124 the Committee has stated that with a view to sorting out backward classes from others. the claim of each and every occupational and industrial category listed in the census report of 1961 had been carefully examined and it is obvious that the list of traditional occupations is made as exhaustive as possible. A class can be identified on the basis of traditional occupation.\n\nA traditional occupation means an occupation followed in a family in which it is handed down by an ancestor to his posterity. If _there is a section of the population following an occupation of that description that section can be regarded as a class.\n\nSuch occupations are generally occupations in which some special skills are necessary like those of an artisan or a craftsman. It is contended by Mr. Sen that though 62 occupations have been mentioned as traditional occupations a good many of them are not really traditional occupations and with regard to others there has been no investigation in depth as to whether they are traditional occupations or not. It is also contended by hirn that the definition of 'traditional occupation' given in the rules actually distorts the whole picture because whether the father of the person claiming reservation follows the traditional occupation or not, he becomes entitled to be considered as of the class if his grand-father did.\n\nThere is no doubt that a large number of occupations mentioned in the list is capable of being followed as a traditional occupation.\n\nBut some of them, at least, do not deserve to be called traditional occupations. Take for example an \"agricultural labourer\".\n\nWe have grave doubts if agricultural labour can be regarded as a traditional occupation. The occupation is seasonal and, '!IS is well-known, it is the last refuge of the landless unskilled labourer who has no other source of employment in the rural ounity .. Indeed, if any one deserved special consideration it is the agricultural labourer, but the objection is to its identification as a traditional occupation. An agricultural labourer is just a labourer whose services are utilized wherever unskilled labour is required. In fact he is the source material for hama!s and the like-occupations which merely require physical strength\n\n/ •/ 255\n\nand capacity to work. Similarly it would be difficult to say that the following occupations are traditional occupations :\n\n(5) Bearer, Boy, waiter. ( 7) Book binders.\n\nCll) Cook.\n\n(20) Grass seller.\n\n(21) Hawkers, pedlars.\n\n(23) Load carriers. ( 29) Old garment sellers. ( 48) Watch repairers .. c ( 51) Grocers in rural areas .. ( 53) Mille-sellers in rural areas.\n\n(58) Vegetable sellers in rural areas. ( 62) Drivers of Ton gas and other animal driven vehicles.\n\nAll these occupations do not require special skills developed by tradition and can be resorted to by anybody with the requisite resources. Then agairi at serial nos. 34 and 56 we have a category of priestly classes who, though following a traditional profession can hardly be regarded as socially and educationally backward. We, therefore, thirik that there must be a proper revision of the traditional occupations to fall properly under rule 4.\n\nBut the most serious objection is to the artificial definition given in rule 2 (j). The \"traditional occupation\" iri respect of a person means .the mairi occupation of his living or late grand- _father and does not include casual occupation. This would mean F that if a person wants the special advantage as a member of the backward class it is enough for him to show that his grandfather was following a traditional occupation.\n\nHis father may not be following the traditional occupation at all. He might have given it up to follow some other occupation or trade. It is not enough,\n\nit is contended, that a traditional occupation was followed by the grandfather but that the occupation should have descended to his son also so that at date when the grandson is asking for the -benefit of reservation the traditional occupation must be still in the family and continues to. be the living of the family. There is great force iri this contention. If the father of the_person who claims special treatment under Articles 15(4) and 16(4) has given up his low income occupation and. become a trader or a Government servant it will be wrong to give the person the spe cial benefit merely on the ground that his grandfather was following a certain traditional occupation. It was against such misuse .\n\nthat the committee had issued a warning in para 129 of its report. It observed.\n\n\"While making the foregoing provisions, every possible care should be taken by the State to ensure that the benefit of such provisions is availed of only by those who are bonafide members of the classes declared backward and notby imposters.\" As already stated it is quite open to the State to declare that persons belonging to low income families following a traditional occupation should be regarded as persons belonging to a backward class if, on the whole, that class is socially. and educationally backward.\n\nBut it is equally essential that at the time when a person belonging to that class claims the special treatment his family must be still following the traditional occupation. Since the rule does not completely ensure this it is likely to be abused and the real person for whose benefit the rule is made will not get the benefit. The rules, therefore, pertaining to traditional occupations must be suitably revised.\n\nChapter II deals with some 23 low social castes .. The Committee in Chapter XIII had identified the first 19 out of them and stated that these castes are considered inferior in society -as the service which they render carry a stigma in it. They suffer from social disabilities and both educationally and economically they are .extremely backward. The last four castes in rule 5 have not been mentioned in Chanter XIII of the report. It is not also known on what basis they have been included as socially and educationally backward.\n\nThere may be good reasons for the State Government to do so. but we have no material before us. As at present addressed. therefore. we are not prepared to proceed on the basis that serial nos. 20 to 23 are backward classes.\n\nChanter III identifies cultivators of land with small holdings as a backward class. The limits of his holding differ according to the type of land cultivated and the region in which such land is . situated. The cultivator may be an owner or a tenant. He may even be a non-cultivator provided he whol'y depends on land for . his livelihood. The cultivator is designated as a class on the basis ·\n\nof. the recommendations made bv the Committee in Chapter XII of its report.\n\nThe reasons given by the Committee go to show that the overriding consideration was economic.\n\nA class, as already observed, must be a homogeneous social section of the peoole with common traits and identifiable by som~ common attributes.· All that can be said.about the cultivators is that they are persons who cultivate land or live on land, and the simple accident that thev hold land below a certain ceiling is sunnosed to make them a class. In such a case the relevance of social and educational backwardness takes a subordinate place. · Jn soine areas as in Kashmir valley the ceiling for a cultivator is 10 Kanals\n\nA of irri2ated land. If a cultivator holds 10 Kanals of land or less he is to be regarded as backward i.e. to §_ay socially and educationaliy backward.\n\nBut if his own brother living in the same village owns half a Kanai more than the ceiling he is not to be considered backward.\n\nThis completely distorts the picture.\n\nIt will be very difficult to say that if a person owns just 10 Kanals B of land he should be considered socially and educationally backward while his brother owning half a Kanai more should not be so considered. The error in such a case lies in placing economic consideration above considerations which go to show whether a particular class is socially and educationally backward. The same error is repeated in Chapter IV wherein the dependant of a pen <: sioner is suppooed to belong to the b_ackward class if such pensioner had retired from certain Govt. posts mentioned in Appendix I and if the maximum of the scale of pay of these posts did not exceed Rs. 100 p.m.\n\nThey also included defence service pensioners of the ranks of sepoy, Naik Havaldars etc. :rhis again is based upon the recommendation of the Committee which in Chapter II of the report says \"Among others, representatives of D pensioners also called on the Committee. and explained the difficulties faced by them because of being in receipt of a meagre income in ihe shape of pensionary emoluments. The memorialists contended that they cannot keep pace with the ever-rising price index as rates of pension have remained static and have not been enhanced as is being done from time to time in the case of Govern- E ment servants in regular service. It was further argued that they could ill afford to spare any part of their meagre earnings for the education of their children.\" The Committee felt that these pensioners deserve on there grounds to be shown consideration as backward classes because most of them held class IV or similar posts. Ex-servicemen who fall in this class are about 90,000 Fand civil posts pensioners are about 15,000. It is diffic.ult to say that those pensioners are a class in the sense that they are a homogeneous group. They are an amorphous section of Government servants who by the accident of receiving Rs. 100/- or less as pay at the time of retirement or being ex-servicemen of certain grades are pushed into an artifically created body. It may be that they belong to class IV or similar grade service of the State. But that G is not the test of their social and educational backwardness. In days when sources of employment were few, manv people though socially advanced might have accepted low paid jobs. Some of them may have failed to make the educational grade and were hence forced by necessity to accept such low paid jobs.\n\nSome others might have pre-maturely .retired from posts carrying the ff scale referred to above. The accident, therefore, that they belong to a section of Government servants of certain category is no test of their social backwardness. The test breaks down if the position of a brother of such a pensioner is considered. If the brother, . 18-631Sup.CJ/73 .\n\nalso a Government servant, has the misfortune o[ retiring when holding a po>t the maximum of which was Rs. 105 he was liable to be regarded as not socially and educationally backward when, in all conscience, so far as the two brothers are concernecJ they remain on the same social level.\n\nAnother brother who is privately employed and retires from service without any pensionary benefits would not be entitled to be classed as backwatd under the test. These anomalies arise because of the artificial nature of the group created by the Committee. If all the brothers are socially and educationally backward, you will be differentiating between them by calling !;()me more backward and others less backward, a thing not permitted by Balaji's case. There is, therefore, substance in the contention of Mr. Sen that the Committee has created these two artificial groups of \"cultivators\" and \"pensioners\" for the purpose of affording certain benefits under the Comtitution instead of identifying socially and educatiol)a lly backward classes.\n\nChapter V & VI of the Rules identify residents of certain areas as backward. In Chapter V the residents of certain villages mentioned in Appendix II are considered as backward, these villages being within five miles of the ceasefire line. In Chapter VI some areas in the State are regarded as \"bad pockets\" and all the residents of those areas are stated to be backward. These two Chapters incorporate the recommendations made by the Committee in Chapter X and IX respectively of the report.\n\nChapter IX relates to ''bad pockets''. 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior.\n\nThe population of thes,: Jrc:ts according to 1961 census was about three lakh<. The Co1nsJ:inee reports as follov.s :\n\n\"There are, for instance well known rather notorious backward areas which have to be treated differently from the rest of the State. There are others which bi. cause of difficult terrain, inaccessibility and absence of vehicular communications still retain their primitive character. There are still some others which suffer from deficient production on account of soil being rocky and sandy and irrigation facilities being scanty and inadequate. Besides these, there are areas where due to nonavailability of electric power, industrial development even on the scale of cottage industry has yet to come into existence. There are certain areas which combine all or some of these characteristics.\"\n\nTen such pockets were then examined in detail and the Committee came to the conclusion that owing to lack of communication, \\naccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditio11~ and they are all socially and educationally backward. The civilzing influence of modern life is yet to reach them.\n\nThese areas are carefully mapped.\n\nThey are situated in the recesses of inaccessible mountains which have primarily led to the residents therein being almost in a primitive state. The population is about 8% of the total population of Jammu & Kashmir and, in our opinion, there is no serious difficulty in regarding the residents of these areas as being backward.\n\nSimiiar considerations apply to areas adjoining the ceasefire line.\n\nThey comprise about 179 villages with a population of about a lakh.\n\nThe difficulties of their situation near the ceasefire line for the last 25 years seem to have contributed to this area being cut off from the main stream of life.\n\nThe Committee noticed that the difficulties inherent in tl:e living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backward-\n\n•nes~. There are restrictions on their free movement and they have to remain indoors after sun set. The male members cannot leave their villages in search of livelihood elsewhere for fear of their wives and children being left behind unprotected. The land is unproductive, no investments could be made in the land because of the nearness of the ceasefire line.\n\nRaids accompanied by cattle lifting and damage to property are not uncommon. Loss of life also takes place occasiona]]y. The inhabitants find it equally difficult to pursue their traditional arts and crafts. The effect of all these contributory factors have kept these areas, in so far as social and educational progress is concerned, verv much behind the rest of the State. We thus find that soecial reasons have been given by the Committee why it considered these areas socially and educationally backward and since the classification is not made merely on the ground of place of birth, we do not think that there is any serious objection to regard the residents of the bad pockets and the ceasefire areas as socially and educationally backward.\n\nBut Rules JO and 12 have been so framed that the advanta2e is likely to be misused by imposters. A person wanting the advanta!!e of reservation would be regarded as belonging to these areas if.liis father is or has been resident of the area for a period of not 11!9!1 than JO years in a period of 20 year< preceding the year in which the certificate of backwardness is obtained. The rules do nOj; insist that either the father or the son should be a resident of the area when the advantage is claimed. Nor does it require that the son should have his earlier education in these areas to ensure that he and his father are permanent residents of that area. Anv tradl!r or Government servant from outside who is ?e&iding for about 10 years in these areas within 20 vears of the date when the vantal!e i< claimed would, be entitled to be regarded as belonl!Ulg to the backward class. In order that the benefit may f1;0 to the: residents of these areas, Government ought to frame rales\n\nwith adequate safeguards that only genuine residents will get the A advantage of wecial reservation and not outsiders. As the rules . stand, outsiders who, in the course of their trade or busines5\n\nhappened to live in these areas for l 0 years out o( past 20 years would be able to claim the benefit; This loophole must be plugged and tlll that 1s done, the production of a certificate from the Tehsildar as to the backwardness of any person would be of g little value.\n\nWe have shown above the defects in the rules which purport to identify certain residents of the State as backward. Till the defects are cured, the rules are not capable of being given effect to.\n\nIn view of the above findings the selections made by the Departmental Promotion Committee have to be set aside.\n\nIt is very unfortunate that this controversy is going on from\n\n1965. The net result of it has been to deprive schools of their- Head Masters. There can be no doubt also that on account of various changes effected during the past years, considerable damage must have been done to overall discipline in the schools. The rules of 1969 provide for promotions to the posts of Head Masters and Tehsil Education Officers by selection. Therefore, it is essential that these selections must be made on a proper basis. That will take some time. In the meantime the schools must have a proper administrative set up and we, therefore, propose an interim arrangement. Since the. selections made on the basis of the present backward class reservations rules are illegal and it would take sometime before those rules are properly revised the State may consider the suggsetion whether all the posts which are now vacant may not be filled by selections under the rules of 1969 and appropriate reservations in favour of bacl..-ward classes be made for future vacancies as the.y occur after the backward class reservation rules are properly revised. Accordingly, the following directions are given as result of our findings in the three petitions :\n\n( 1) All those Head Masters and Tehsil Education Officers\n\nwho have been confinned as such or promoted to yet G higher posts with effect from the date prior to the filing of the Writ Petition No. 107 /1965 (Tri/okl Nath Tikoo's case) will not be affected by the orders passed in these cases;\n\n(2) The cases of all other teachers including those who were officiating as Head Masters and Tehsil E<luca- H tion Officers and are eligible for promotion shall be reviewed in a proper selection made in accordance with the 1969 rules.\n\nInterviews shall not be the\n\nJ. I'. PAlUMOO v. J, & K; STATE (Palekar, J.) 261\n\nonly test.\n\nT)l.e character rolls and the confidential records shall be taken into due consideration. If in any case the same are not available, a report or reports should be obtained from authorities who had opportunity to observe th~ teachers' performance and character.\n\n(3) Pending selection as per (2) above, the following in\n\ntcrim arrangement for filling the vacant posts of Head Masters and Tehsil Education Officers is directed :\n\n(a) Those Head Masters and Tehsil Education Olli\n\ncers who were officiating as such since prior 'to the filing of Writ Petition No. 107/65 (Triloki Nath Tikoo's case) and whose appointments had not been set aside as invalid in that Writ Petition or Writ Petition No. 108/69 (Makhanlal's case) will be restored to the position they held before the filing of Writ Petition No. 107 /65;\n\n(b) The remaining vacant posts of He11d Mum\n\nand Tehsil Education Officers will be filled by those selected in 1971 interviews, provided that each one of those selected had obtained at least 503 arks from the Departmental Promoon Committee and 50% marks from the Expert.\n\nAs between them, seniority will be respected. ( c) U in spite of following (b) above, all the vacancies are not filled the remaining vacancies shall be filled by teachers in order of their senioritr.\n\nThe petitioners in the three petitions shall get their costs from respondent no. 1 (i.e. State) in one set of hearing fees.\n\nG.C.\n\nPetitions allowed.", "total_entities": 96, "entities": [{"text": "JANKI PRASAD PARIMOO & ORS. ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "JANKI PRASAD PARIMOO & ORS. ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF JAMMU & KASHMIR & ORS", "label": "RESPONDENT", "start_char": 44, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "STATE OF JAMMU & KASHMIR & ORS", "offset_not_found": false}}, {"text": "M. SIKRI, C.J.", "label": "JUDGE", "start_char": 99, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 115, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "D. G. PALEKAR", "label": "JUDGE", "start_char": 126, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 141, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "DWIVEDI, JJ.", "label": "JUDGE", "start_char": 162, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 737, "end_char": 758, "source": "regex", "metadata": {}}, {"text": "14·6-1956", "label": "DATE", "start_char": 764, "end_char": 773, "source": "ner", "metadata": {"in_sentence": "On 14·6-1956 the State of Jammu & Kashmir promulgated the Jammu & Keshmir Civil Services (Classification O>ntrol & Appeals) Rules 1956."}}, {"text": "State of Jammu & Kashmir", "label": "ORG", "start_char": 778, "end_char": 802, "source": "ner", "metadata": {"in_sentence": "On 14·6-1956 the State of Jammu & Kashmir promulgated the Jammu & Keshmir Civil Services (Classification O>ntrol & Appeals) Rules 1956."}}, {"text": "[1967] 2 S.C.R. 265", "label": "CASE_CITATION", "start_char": 1363, "end_char": 1382, "source": "regex", "metadata": {}}, {"text": "Mak/Jan/al Maza", "label": "OTHER_PERSON", "start_char": 1655, "end_char": 1670, "source": "ner", "metadata": {"in_sentence": "R, 832 held that the promotions of muslims to the posts of headmasters or teachers in-charge were made on the basis of a communal policy and against the aforesaid 1956 Rules, After the decision in Mak/Jan/al Maza's."}}, {"text": "23·2-1971", "label": "DATE", "start_char": 1707, "end_char": 1716, "source": "ner", "metadata": {"in_sentence": "case the State by an order dated 23·2-1971 reverted all those teachers who had officiated as headmasters or had been designated as teachers-in-charge."}}, {"text": "April 18, 1970", "label": "DATE", "start_char": 2314, "end_char": 2328, "source": "ner", "metadata": {"in_sentence": "Meanwhile In accordance with the recommendations of the Backward Cldsses Committee the State Governme'llt had also issued on April 18, 1970 the Jammu & Kashmir Scheduled Castes & Backward Cfasses (Reservation Rules) 1970."}}, {"text": "August 8 .• 1970", "label": "DATE", "start_char": 2421, "end_char": 2437, "source": "ner", "metadata": {"in_sentence": "Later, on August 8 .• 1970, a further order was passed known as Jarnmu & Kashmir Scheduled Castes & Backward Classes (Reservation of appointment by Promotion) Rules 1970."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2739, "end_char": 2746, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 15(4)", "label": "PROVISION", "start_char": 4907, "end_char": 4917, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16(4)", "label": "PROVISION", "start_char": 4992, "end_char": 5002, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16( 4)", "label": "PROVISION", "start_char": 5134, "end_char": 5145, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 15(4)", "label": "PROVISION", "start_char": 5249, "end_char": 5259, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 15(4) and 16(4)", "label": "PROVISION", "start_char": 5358, "end_char": 5382, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Balc.ji", "label": "OTHER_PERSON", "start_char": 5876, "end_char": 5883, "source": "ner", "metadata": {"in_sentence": "That accounts.for the raison d'etre of the principle explai:oi.!d in Balc.ji's case which pointed out that backward classes for whose improvement specifil provision was contemplated by Art."}}, {"text": "Art. 15(4)", "label": "PROVISION", "start_char": 5992, "end_char": 6002, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 15", "label": "PROVISION", "start_char": 7969, "end_char": 7980, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Chapter III of the Rules", "label": "STATUTE", "start_char": 8503, "end_char": 8527, "source": "regex", "metadata": {}}, {"text": "Chapter V and VI of the Rules", "label": "STATUTE", "start_char": 9206, "end_char": 9235, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 10096, "end_char": 10106, "source": "regex", "metadata": {"linked_statute_text": "Chapter V and VI of the Rules", "statute": "Chapter V and VI of the Rules"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 10114, "end_char": 10135, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 10180, "end_char": 10189, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Naunit Lal and I. N. Shroff, for the Petitioners (in all the petitions)\n\nS. V. Gupte, 0."}}, {"text": "Naunit Lal", "label": "OTHER_PERSON", "start_char": 10191, "end_char": 10201, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Naunit Lal and I. N. Shroff, for the Petitioners (in all the petitions)\n\nS. V. Gupte, 0."}}, {"text": "I. N. Shroff", "label": "OTHER_PERSON", "start_char": 10206, "end_char": 10218, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Naunit Lal and I. N. Shroff, for the Petitioners (in all the petitions)\n\nS. V. Gupte, 0."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 10264, "end_char": 10275, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, Naunit Lal and I. N. Shroff, for the Petitioners (in all the petitions)\n\nS. V. Gupte, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 10280, "end_char": 10289, "source": "ner", "metadata": {"in_sentence": "C. Mathur, P. C. Bhartari and Bhuvanesh Kumari, for respondents Nos."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 10291, "end_char": 10305, "source": "ner", "metadata": {"in_sentence": "C. Mathur, P. C. Bhartari and Bhuvanesh Kumari, for respondents Nos."}}, {"text": "Bhuvanesh Kumari", "label": "LAWYER", "start_char": 10310, "end_char": 10326, "source": "ner", "metadata": {"in_sentence": "C. Mathur, P. C. Bhartari and Bhuvanesh Kumari, for respondents Nos."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 10483, "end_char": 10495, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and S. N. Prasad, for respondents Nos."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 10500, "end_char": 10512, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and S. N. Prasad, for respondents Nos."}}, {"text": "E. C. Agarwala", "label": "LAWYER", "start_char": 10598, "end_char": 10612, "source": "ner", "metadata": {"in_sentence": "175) ·\n\nE. C. Agarwala, for respondents No 6, 27 (in W.P. No."}}, {"text": "Jagmohan Khanna", "label": "LAWYER", "start_char": 10658, "end_char": 10673, "source": "ner", "metadata": {"in_sentence": "175)\n\nJagmohan Khanna, for respondents No."}}, {"text": "P ALEKAR", "label": "JUDGE", "start_char": 10761, "end_char": 10769, "source": "ner", "metadata": {"in_sentence": "175)\n\nThe Judgment of the Court was delivered by\n\nP ALEKAR, J.\n\nThese three petitions under Article 32 are a sequel to the action taken by the State of J ammu & Kashmir in pursuance of the order passed by this Court in Makhanlal Waza &\n\nOrs."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 10803, "end_char": 10813, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "State of J ammu & Kashmir", "label": "ORG", "start_char": 10854, "end_char": 10879, "source": "ner", "metadata": {"in_sentence": "175)\n\nThe Judgment of the Court was delivered by\n\nP ALEKAR, J.\n\nThese three petitions under Article 32 are a sequel to the action taken by the State of J ammu & Kashmir in pursuance of the order passed by this Court in Makhanlal Waza &\n\nOrs."}}, {"text": "14th June 1956", "label": "DATE", "start_char": 11878, "end_char": 11892, "source": "ner", "metadata": {"in_sentence": "On 14th June 1956 the State promulgated the Jammu & Kashmir Civil Services (Classification Control & Appeals) Rules, 1956."}}, {"text": "Jammu", "label": "GPE", "start_char": 12804, "end_char": 12809, "source": "ner", "metadata": {"in_sentence": "Notwithstanding the rules, the State followed the communal pattern of appointments and promotions, reserving 50% of the posts for Muslims, 40% mainly to the Hindu of Jammu and the remaining 10% for Sikhs, Kashmiri Pandits and other minority communitie3."}}, {"text": "Triloki Nath Tikoo", "label": "PETITIONER", "start_char": 13318, "end_char": 13336, "source": "ner", "metadata": {"in_sentence": "In December 1965 Triloki Nath Tikoo and Shambu Nath filed Writ Petition No.", "canonical_name": "Triloki Nath Tikoo"}}, {"text": "Shambu Nath", "label": "OTHER_PERSON", "start_char": 13341, "end_char": 13352, "source": "ner", "metadata": {"in_sentence": "In December 1965 Triloki Nath Tikoo and Shambu Nath filed Writ Petition No."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 13490, "end_char": 13500, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "J ammu province", "label": "GPE", "start_char": 13760, "end_char": 13775, "source": "ner", "metadata": {"in_sentence": "claimed that this reservation was made on the ground that the Muslims of the State and Hindus of J ammu province constituted backward classes referred to in Rule 19 and such reservation was justified under clause ( 4) of Article 16."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 13884, "end_char": 13894, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "December 15, 1966", "label": "DATE", "start_char": 14050, "end_char": 14067, "source": "ner", "metadata": {"in_sentence": "The Court found that there was no sufficient material before it to decide if the claim made on behalf of the State was justified and so by an order dated December 15, 1966 directd the High Court of Jammu & Kashmir to gather the necessary material and to report on it."}}, {"text": "High Court of Jammu & Kashmir", "label": "COURT", "start_char": 14080, "end_char": 14109, "source": "ner", "metadata": {"in_sentence": "The Court found that there was no sufficient material before it to decide if the claim made on behalf of the State was justified and so by an order dated December 15, 1966 directd the High Court of Jammu & Kashmir to gather the necessary material and to report on it."}}, {"text": "Article 16( 4)", "label": "PROVISION", "start_char": 14483, "end_char": 14497, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 14725, "end_char": 14735, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "April 23, 1968", "label": "DATE", "start_char": 15214, "end_char": 15228, "source": "ner", "metadata": {"in_sentence": "This order was passed by the Court on April 23, 1968."}}, {"text": "Triloki Nath Tikko", "label": "PETITIONER", "start_char": 16497, "end_char": 16515, "source": "ner", "metadata": {"in_sentence": "the promotions of the respondents in that case were made not purely on m.erit as requiroo by rule 25 referred to above but had been made on account of the communal policy which had been declared invalid by this Court in Triloki Nath Tikko's case.", "canonical_name": "Triloki Nath Tikoo"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 16908, "end_char": 16918, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "February 23, 1971", "label": "DATE", "start_char": 17277, "end_char": 17294, "source": "ner", "metadata": {"in_sentence": "This order was passed on February 23, 1971."}}, {"text": "23-2-1971", "label": "DATE", "start_char": 17568, "end_char": 17577, "source": "ner", "metadata": {"in_sentence": "As a preliminarv to the same the State reverted by an order dated 23-2-1971 all those teacher.s who had officiated as Head Masters or had been designated as teacher;·in-charne."}}, {"text": "23-3-1971", "label": "DATE", "start_char": 18336, "end_char": 18345, "source": "ner", "metadata": {"in_sentence": "But before the interviews were over the first of the Writ Petitions before us namely Writ Petition 175/71 was filed by 7 Kashmiri Pandit teachers who had been affected by the order reverting them on 23-3-1971."}}, {"text": "Government of Jammu & Kashmir", "label": "ORG", "start_char": 20636, "end_char": 20665, "source": "ner", "metadata": {"in_sentence": "H ...\n\nIt must be stated here that in 1967 the Government of Jammu & Kashmir had appointed the J ammu & Kashmir Commission of Enquiry under the Chairmanship of Dr. P. B. Gajendragadkar."}}, {"text": "J ammu & Kashmir Commission of Enquiry", "label": "ORG", "start_char": 20684, "end_char": 20722, "source": "ner", "metadata": {"in_sentence": "H ...\n\nIt must be stated here that in 1967 the Government of Jammu & Kashmir had appointed the J ammu & Kashmir Commission of Enquiry under the Chairmanship of Dr. P. B. Gajendragadkar."}}, {"text": "P. B. Gajendragadkar", "label": "OTHER_PERSON", "start_char": 20753, "end_char": 20773, "source": "ner", "metadata": {"in_sentence": "H ...\n\nIt must be stated here that in 1967 the Government of Jammu & Kashmir had appointed the J ammu & Kashmir Commission of Enquiry under the Chairmanship of Dr. P. B. Gajendragadkar."}}, {"text": "Jammu & Kashmir", "label": "GPE", "start_char": 20962, "end_char": 20977, "source": "ner", "metadata": {"in_sentence": "Its report was submitted in November, 1968 and one of the recommendations of the Commission was to appoint a high-powered Committee to draw up a list of backward classes in the State of Jammu & Kashmir."}}, {"text": "J. N. Wazir", "label": "JUDGE", "start_char": 21069, "end_char": 21080, "source": "ner", "metadata": {"in_sentence": "Accordingly, the Backward Classes Committee was appointed under the Chairmanship of Shri J. N. Wazir, Retired Chief Justice of J ammu & Kashmir High Court, on February 3, 1969."}}, {"text": "J ammu & Kashmir High Court", "label": "COURT", "start_char": 21107, "end_char": 21134, "source": "ner", "metadata": {"in_sentence": "Accordingly, the Backward Classes Committee was appointed under the Chairmanship of Shri J. N. Wazir, Retired Chief Justice of J ammu & Kashmir High Court, on February 3, 1969."}}, {"text": "August 8, 1970", "label": "DATE", "start_char": 21743, "end_char": 21757, "source": "ner", "metadata": {"in_sentence": "Later on August 8, 1970 a further order was passed by the State known as Jammu & Kash mir Scheduled Castes and Backward Classes (Reservation of appointment by Promotion) Rules."}}, {"text": "Kashmir", "label": "GPE", "start_char": 23037, "end_char": 23044, "source": "ner", "metadata": {"in_sentence": "On the other hand, great anxiety was shown, according to the petitioners, to rope in as many persons from the majority communities as possible so that in the selections made thereafter a disproportionate share in the appointments and promotions would go to the majority communities in Kashmir and Jammu."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 23432, "end_char": 23442, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Triloki Nath Tikoo", "label": "PETITIONER", "start_char": 26426, "end_char": 26444, "source": "ner", "metadata": {"in_sentence": "On the other hand, it is to be noted that the respondents seem not to have figured in Triloki Nath Tikoo's case (W.P. 107/1965) filed in 1965.", "canonical_name": "Triloki Nath Tikoo"}}, {"text": "Makhanlal", "label": "OTHER_PERSON", "start_char": 26805, "end_char": 26814, "source": "ner", "metadata": {"in_sentence": "Indeed if any one of the respondents was a respondent in Writ Petition 107/1965 (Triloki Nath Tikoo's case) or in Writ Petition l 08/ 1969 (Makhanlal's case) in which his appointment as He<1_d Master had been set aside as invalid, his case will have to be treated like that of any other offi, ciating Head Master who had been reverted in 1971."}}, {"text": "Mar. 15, 1971", "label": "DATE", "start_char": 27433, "end_char": 27446, "source": "ner", "metadata": {"in_sentence": "The first point involves the question whether the selection by interviews held by the Departmental Promotion Committee between Mar. 15, 1971 and July 18, 1971 for the purposes of making promotions to the posts of Head Masters and Tehsil Education Officials was a valid and proper exercise."}}, {"text": "July 18, 1971", "label": "DATE", "start_char": 27451, "end_char": 27464, "source": "ner", "metadata": {"in_sentence": "The first point involves the question whether the selection by interviews held by the Departmental Promotion Committee between Mar. 15, 1971 and July 18, 1971 for the purposes of making promotions to the posts of Head Masters and Tehsil Education Officials was a valid and proper exercise."}}, {"text": "N. K. Dutt", "label": "OTHER_PERSON", "start_char": 35904, "end_char": 35914, "source": "ner", "metadata": {"in_sentence": "The affidavit is of Dr. N. K. Dutt, Reader in Education, Central Institute of Education, Delhi who was the very first expert who sat with the Committee at the time of the selection."}}, {"text": "Central Institute of Education, Delhi", "label": "ORG", "start_char": 35937, "end_char": 35974, "source": "ner", "metadata": {"in_sentence": "The affidavit is of Dr. N. K. Dutt, Reader in Education, Central Institute of Education, Delhi who was the very first expert who sat with the Committee at the time of the selection."}}, {"text": "Dutt", "label": "OTHER_PERSON", "start_char": 36066, "end_char": 36070, "source": "ner", "metadata": {"in_sentence": "Dr. Dutt says that his suggestion for optimum cuting score of not less than 50% had been favourably received by the Departmental Promotion Committee."}}, {"text": "Articles 15", "label": "PROVISION", "start_char": 39253, "end_char": 39264, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 15", "label": "PROVISION", "start_char": 39336, "end_char": 39346, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16(4)", "label": "PROVISION", "start_char": 39429, "end_char": 39442, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 39571, "end_char": 39581, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 15", "label": "PROVISION", "start_char": 39689, "end_char": 39699, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 15", "label": "PROVISION", "start_char": 39936, "end_char": 39946, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Shah", "label": "JUDGE", "start_char": 40394, "end_char": 40398, "source": "ner", "metadata": {"in_sentence": "Several other decisions have been rendered thereafter and the passage in a judgment delivered by Shah, J- (as he then was) in State of Andhra Pradesh & Anr."}}, {"text": "Art. 15", "label": "PROVISION", "start_char": 41057, "end_char": 41064, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 15", "label": "PROVISION", "start_char": 41217, "end_char": 41224, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 41700, "end_char": 41710, "source": "ner", "metadata": {"in_sentence": "fl!e Parliament has by enacting cl. ("}}, {"text": "M. R. ffalaji", "label": "OTHER_PERSON", "start_char": 42862, "end_char": 42875, "source": "ner", "metadata": {"in_sentence": ",.. ..\n\n~ ~; '-'\n\nf ·\n\nwhich have been enunciated in the decision of this coun in M. R. ffalaji's case-(1963) Suppl."}}, {"text": "India", "label": "GPE", "start_char": 43202, "end_char": 43207, "source": "ner", "metadata": {"in_sentence": "In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji's ca5e referred to above that backwardness, socially and educationally, is ultimately and primarily due to poverty.·"}}, {"text": "Balaji", "label": "OTHER_PERSON", "start_char": 43315, "end_char": 43321, "source": "ner", "metadata": {"in_sentence": "In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji's ca5e referred to above that backwardness, socially and educationally, is ultimately and primarily due to poverty.·"}}, {"text": "ate of Jammu & Kashmir", "label": "RESPONDENT", "start_char": 44880, "end_char": 44902, "source": "ner", "metadata": {"in_sentence": "In the report submitted by the Backward Classes Committee to the ate of Jammu & Kashmir it is stated that agriculture is the main stay of the State's economy."}}, {"text": "Article 15", "label": "PROVISION", "start_char": 46988, "end_char": 46998, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 47549, "end_char": 47558, "source": "ner", "metadata": {"in_sentence": "Subba Rao, J (as he then was), speaking for the majority, discarded caste as the dominant criterion in the following words t page 388 :\n\n\"It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not."}}, {"text": "Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970", "label": "STATUTE", "start_char": 50171, "end_char": 50240, "source": "regex", "metadata": {}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 51285, "end_char": 51288, "source": "ner", "metadata": {"in_sentence": "Objection is taken by Mr. Sen, on behalf of the petitioners, to the several types of backward classes designated under the rules and also to the peculiar manner in which the .definitions have been framed."}}, {"text": "Articles 15(4) and 16(4)", "label": "PROVISION", "start_char": 55918, "end_char": 55942, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Naik Havaldars", "label": "OTHER_PERSON", "start_char": 60128, "end_char": 60142, "source": "ner", "metadata": {"in_sentence": "100 p.m.\n\nThey also included defence service pensioners of the ranks of sepoy, Naik Havaldars etc. :"}}, {"text": "okl Nath Tikoo", "label": "OTHER_PERSON", "start_char": 70250, "end_char": 70264, "source": "ner", "metadata": {"in_sentence": "107 /1965 (Tri/okl Nath Tikoo's case) will not be affected by the orders passed in these cases;\n\n(2) The cases of all other teachers including those who were officiating as Head Masters and Tehsil E<luca- H tion Officers and are eligible for promotion shall be reviewed in a proper selection made in accordance with the 1969 rules."}}]}
{"document_id": "1973_3_262_267_EN", "year": 1973, "text": "RAMACHANDRAIAH ETC. v.\n\nLAND ACQUISITION OFFICER, SAGAR\n\nJanuary 10, 1973 [J, M. SHl.LAT ANDY. V. CHANDRACHUD, JJ.]\n\nLand acquisition-Lands under personal cultivation of o>vner t11fd rflnds under cu!tivacion of tenants-Principles of co1npensation.\n\nThe respondent acquired the lands of the appellants.\n\nSome of th.e lands were cultivated by the appellants themselves and others by ter.ants.\n\nAs a result of the Mysore Ten\"lncy Act, 1952, which was amended by Mysore Acts 16 of 1957, 24 of 1962 and 12 of 1963. and, the Mysore Tenant, (Temporary Protection From Eviction) Act, 1%1, the tenants, though they were inducted originally as annual tc; nants, they got as deemed 1\"nants. a fixed and secured tenure for additional periods.\n\nThe respondent rtxed compensation at Rs. 600 per acre for tankfed la:ndo and Rs. 500 per acre for rain-fed lands.\n\nOn a reference under s. 18 of. the Land Acquisition Act, 1894, the compcnsatiori was :ncreascd to Rs. 2500 per acre for tankfed lands and Rs. 2000 for rain-kd lands. On appeal, the High Court fixed a uniform rate of compensation at. Rs. 1250 for all lands, whether tank-fed or rain-fed, and whether atf•cultivated or cultivated by tenants,\n\n\"' Qn the question whether the High Court followed a correct principle, ,,.. Court, in appeal,\n\nHELD The matter should be remanded to the High Court for a E fresh calculation of th.e compensation.\n\n(I) The High Court was in error in equating lands cultivated by die tenants and those under the personal cultivaton of the appellants and. applying to both a uniform measure.\n\nThe two kinds of lands Ouaht to have been separately treated a; nd even if the rent in the case of tenant occupied lnd was taken as a. measure for such Jand, that could not properly be the measure for arriving at the market value of the land under the appellants' personal cultivation, because, the net F return to the appellants from each of the two klnds of lands is bound to differ.\n\nThe annual rent paid by the tenant n1ay not he the correct or real inoome obtainable bv the appellants. the rent agfeed upon several years ago may not be the fair rent by reason of seven\\} factors a:nd the lands themselves may not be equal in quality, situation or productivity. [265 C]\n\n(2) In view Of the provisions of the Mysore Act. it should have been G asce-ttained whether the tenant'i h<.1d anv interest in the lnnd and whether they were entitled to any share in the con1pcnsution payable in respect of lands under their cultivation. subject to any har of limitation under s. 18 cf the Land Acquisition Act. lf the tenants are entitled to ttl\"fY share of the compensation, it should be allocated to them. If this were to be done, the annual income of the land~ will have to he ascertained afresh froro the evidence on record 1.)r otherwise to arrive at the correct market value. [266 Fl II\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1353 (0 1355 of 1967.\n\nRMHCHANIJRAL\\H v. LANIJ ACQUISITION OFFICER (Site/al, J.) 26:1\n\nAppeals by certificate from the judgment and Awan'. dated 15th September 1966 of the Mysore High Court at Bangalore in Misc. First Appeals Nos. 199 to 201 of 1963.\n\nR. B. Datar, for the appellants.\n\nM. Veerappa, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSHELAT, J.\n\nThes~. three appeals, by certificate. are by three Khatedars, whose land.s were acquired for the submersion area of the Linganmakki reservoir ii; i Mysore State.\n\nThe areas so acquired were all wet lands and measured 29 acres and 3 7 guntas, 3.32 acres and 8.20 acres respectively. The Special Land Acquisition Officer classified these lands into rain-fed and tank-fed lands, i.e. one crop and two crop lands, and adopting the method of valuation of capitalising the annual rent paid to the appellants fixed Rs. 600 per acre for the tank-fed, i.e., perertially irrjgated wet lands, and Rs, 500 per acre for the rain-fed wet lands. He arrived at these figures on a finding that the average annual rent in respect of these lands was H pallas of paddy per acre which meant that the gross rent was Rs. 37.50 at the rate of Rs. 25 per pa1Ja. Deducting land revenue and bad debts he found that. the net annual income was Rs. 30 per acre. On a reference by the appel!ants under sec. 18 of the Land Acquisition Act, I 894, the District Judge increased the valuation to Rs. 2500 per acre for tank-fed lands and Rs. 2000 per acre for the rain-fed lands. The District Judge also adopted the method of valuation by capitalising the income by 20 years. But what he did was to take the whole of the net income arisin~ from the lands instead of capitalising only the rent payable to the appellants by the tenants of some of the lands.\n\nIn appeals filed by the Acquisition Officer against the awards by the District Judge, the High Court of Mysore reduced the compensation to Rs. 1250 oer ac're for alI the ]ands, irrespective of whether they wer.e tank-fed or rain-fed lands or whether they were self-cultivated or cultivated by tenants. This. the High Court did on the footinj! that the income from the land was represented by the rent paid bv the tenants iii resnect of some of the lands, that such rent on aii average came to 2J pallas of paddy and that at the rate of Rs. 25 per onlla. by capitalisin!! the rent by 20 years. the com1Jensation would come to Rs. 1250 an acre. The Hih\n\nCourt. in addition. awarded interest at 63 oer annum on the amount of compensation awarded by it. In modifving the District Judge's award and reducin!! the rate of comoensation-to Rs. 1250 an acre. the High Court rejected the measure adopted bv the nistrict Jud2e. vi: .. \"that the genT (rent) nlu\". the quantitv which the tenant would rtain fnr himself would be the net averng~ in\n\ncome of the land''.\n\nAccording to the High Court, the District . Jud~ overlooked the fact that the tenant who get some income by cultivating the land did so because he and the members of his family had to expend labour thereon, and that therefore, both the t-xpenses of cultivation as also the value of such labour expended L)' the tenant ought to be taken into consideration. The High Cou_t held :\n\n\"In assessing compensation for lands acquired, on the basis of capitalisation of annual income the usual method adopted is to capitalise the annual rent on the basis of certain number of years purchase.\"\n\nThe High Court also rejected the argument that the land measurc ing 7 acres 10 guntas, which is the subject-matter of Civil Appeal No. 1354 of 1967 and part of the lands which are the subjectmatter of C.A. No. 1353 of 1957 were not cultivated by any tenant and were in fact under the Khatedars' personal cultivation and that therefore compensation in regard to them could not be fixed by capitalising the annual rent only. The High Court held D that if the measure of capitalised annual rent \"is good in respect \"\" of the lands leased, it is equally good in respect of the lands personally cultivated by the claimants\". On this basis, the High Court allowed the Land Acquisition Officer's appeals, reduced the compensation to Rs. 1250 per acre in respect of all the lands, irrespective of whether they were under tenants' cultivation or under the pernonal cultivation of the claimants.\n\nThe question raised before us is whether the High Court followed a correct principle while awarding an uniform rate of comoensation for all. the acquired lands.\n\nIt may be that resort , may be had to fair rent as a true measure of income derived from a particular land bv its proprietor for fixing the compensation bv multiolving it by 20 years as has been done here by the High Court where no other method of valuation is oossible. But where the acquired land has been under the oersonal cultivation of a claimant. the annual rent obtained by him from a tenant from another land mav not be the correct or real income obtainable by the claimant. The rent of the land under a tenant's cultivation may have been agreed uoon several vears ago or mav not otherwise be the fair rent bv reason of several factors. Ouite apart from that, the two lands mav not be equal in oualitv, situation and productivitv and therefore the rent obtained for one cannot be the same for the other. Obviouslv. therefore. the annual rent obtained bv a claimAnt from his tenant for one acouired niece Of land cannot be annlierl as \" measure for another niece of land which is nersonallv cultivated bv the claimant. The net return to the claimant from each of the two land< is bound to differ. Ordinarilv, rent payable by a tenant would he fi11ed after calculating apprmd-\n\nRAMACHANDRAIAH v. LAND ACQUISITION OFFICER (She/at, J.) 265\n\nmately the gross income less the tenant's costs of cultivation, cost of labour expended by him and a certain amount of retum for all the labour thrown in by him. In the case of land personally cultivated by a claimant, on the other .hand, the income derived by such a claimant is arrived at by taking the gross income and deducting therefrom his expenses of cultivation, other expenses and outgoings. The net income thu~ arrived at is usually multiplied by 20 years purchase and the amount so calculated would be considered as equivalent to market value. In our view, the High Court was in error in equating the lands cultivated by the tenants and those under the personal cultivation of the claimants and applying to both a uniform measure, viz., the annual rent obtained from the former for fixing compensation. The two kinds of lands ought to have been separately treated and even if the rent in the cases of tenant-occupied land was taken as a measure for such land, that could not properly be the measure for arriving at the market value of the land under the claimant's personal cultivation.\n\nEven in respect of lands cultivated by tenants, no notices appear to have been issued to them either by the Special Acquisition Officer or by District Judge though some of them did appear as witnesses for the claimants for deposing to the income of the land. Presumably, no such notices were issued to them on the ground that they were annual tenants and had, therefore, no alienable interest in the lands cultivated by them.\n\nWe do not know whether by the expression 'ammal tenants' we meant that their tenancy was for one year only and would lapse on the expiry of the year. Even if it were so, by the time the notifications under secs. 4 and 6 of the Act were issued, (in April and August 1960), the Mysore Tenancy Act XIII of 1952 had come into force. Sec. 4 of that Act provided that a person lawfully cultivating any land belonging to another person shall be deemed. to be a tenant if the conditions there set out are satisfied. Under s. 5 (1), there can be no .tenancy for less than five years and all tenancies in force' on the date of the commencement of the Act shall be deemed to be tenancies for a further period of five years from such date of the commencement of the Act. Under sub-s. 2 of s. 5. no tenancy is terminable before exoiry of the oeriod of five years exceot on the grounds set out in s. 15, e.g., default by such a tenant in paying rent or the fair rent fixed under the Act as the case may be.\n\nThe Mysore Tenancy Act, 13 of 1952 was amended first by Mysore Act, 16 of 1957, and again by Mvsore Ats 24 of 1962 and 12 of 1963. Sec. 4 of Act 16 of 1957 provided that every tenancv in rei; nect of which the oeriod of five veal'lO snecified in s.\n\nS of Act 13 of 1952 was due to exoire during 1957 shall be deemed to be a tenancy for a further period of one year rom the date on which the said period of five years was due to eptre. Sub-\n\n'\" /\n\n• I sec. 3 of sec. 4 further provided that notwithstanding anything contained in any Jaw, notices given before the 1 lth day of March, 1957 by landlords to tenants terminating their tenancies at the expiry of the said period of five years referred to in sub-sec. 1 on the ground of such expiry or on the ground that the landlord required the land for his personal cultivation shall be deemed to have been cancelled and shall have no effect and all applications made by landlords for possession of lands in pursuance of rent notices shall on the 1 lth March, 1957 stand dismissed. In 1961, the Mysore Legislature passed tlie Mysore Tenants (Temporary Protection From Eviction) Act, 37 of 1961.\n\nThe Act was to remain in force till March 31, 1962 or such other date not later than one year after that date as the State Government may by notification specify.\n\nSec. 3 of the Act provided that notwithstanding any thing contained in any law or agreement,· decree or order of a civil or revenue court or a tribunal, no tenant shall be evicted from the land held by him as a tenant during the period that the Act remained in force.\n\nSec. 4 of-the Act stayed durin)! the operation of the Act al] suits and proceedings in execution of decree or orders and other proceedings for the eviction of tenants from the lands held by them as such. The result of these provisions would appear to be that though the tenants of the .lands in these appeals were inducted thereon originally as annual tenants, they got a fixed and .secured tenure for additional periods and as deemed tenants they ceased to be persons entitled to possession only for one year as provided by their original leases. The point, therefore, is whether they acquired as a result of these provisions any share in the compensation.\n\nIn view of these provisions the Special Land .Acquisition Officer and the District Judge ought to have ascertained (which neither of them did) whether the tenants had any interest in the land and whether. they were entitled to any share in the compensation payable in respect of lands under their cultivation. In the absence cf the tenants before us, we find it difficult to go into these ouestions. Nonetheless, we do feel that in fairness to the tenants (if thev are sti11 on the land) their interests ought to have been ascertained and if thev are entitled in Jaw to any share. compensation according to the mai'l<et value of the land should be ascertained afresh and their share. -if allowable to them. should be allocated to them. If this were to be done. the annual income of the lands in auestion will have to be ascertained afresh from the evidence on record or otherwise and the net total income after deductinl! the costs of cultivation an<l other outgoing ascertained in or<ler to arrive at the correct market value.\n\nTf the nosition of the tenants as a result of the oneration of the Tenancv Act has. changed so as to make them entitle<l to a part of the comnensation, that also will require to be ascertained. This is, of-course, sub-\n\nRAMACHANDRAIAH I', LAND ACQLllSITION OFFICER (She/at, I.) 267\n\nject to the bar ot limitation under s. 18 of the Act, for, it would prima facie appear that the tenants by appearing as witne; scs for the claimants knew of the acquisition and the award and yet had made no application to be made parties to the reference before the District Judge.\n\nEven if it is found *at the tenants are not entitled to. any share in the compensation, the lands under tenant's cultivation and those personally cultivated by the claimants cannot be valued on the same footing for the grounds sot out earlier.\n\nA fresh calculation of compensation in any event of brds under the claimants' cultivation is called for on the principle.; set out hereinabove.\n\nWe, therefore, allow the appeals, set aside the judgment of the High Court and remand these appeals to the High Court for a fresh calculation of compensation in the light of the obervutions hereinabove made and in accordance with law. If for th1t purpose it may become necessary in the opinion of the High Court for fresh evidence to be led, parties may be given libe.rty to adduce\n\nuch further evidence.\n\nCosts of these appeals will abide by the result in the High Court.\n\nV.P.S.\n\nAppeals allowed.\n\n2-l796SuoCI ;; J", "total_entities": 30, "entities": [{"text": "RAMACHANDRAIAH ETC", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "RAMACHANDRAIAH ETC", "offset_not_found": false}}, {"text": "LAND ACQUISITION OFFICER, SAGAR", "label": "RESPONDENT", "start_char": 24, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "LAND ACQUISITION OFFICER, SAGAR", "offset_not_found": false}}, {"text": "January 10, 1973", "label": "DATE", "start_char": 57, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "v.\n\nLAND ACQUISITION OFFICER, SAGAR\n\nJanuary 10, 1973 [J, M. SHl."}}, {"text": "M. SHl.LAT ANDY. V. CHANDRACHUD, JJ.", "label": "JUDGE", "start_char": 78, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "s. 18", "label": "PROVISION", "start_char": 868, "end_char": 873, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 882, "end_char": 908, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 2530, "end_char": 2535, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court at Bangalore", "label": "COURT", "start_char": 3068, "end_char": 3098, "source": "ner", "metadata": {"in_sentence": "dated 15th September 1966 of the Mysore High Court at Bangalore in Misc."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 3148, "end_char": 3159, "source": "ner", "metadata": {"in_sentence": "R. B. Datar, for the appellants."}}, {"text": "M. Veerappa", "label": "LAWYER", "start_char": 3182, "end_char": 3193, "source": "ner", "metadata": {"in_sentence": "M. Veerappa, for the respondent."}}, {"text": "SHELAT", "label": "JUDGE", "start_char": 3260, "end_char": 3266, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHELAT, J.\n\nThes~. three appeals, by certificate."}}, {"text": "Mysore State", "label": "GPE", "start_char": 3420, "end_char": 3432, "source": "ner", "metadata": {"in_sentence": "are by three Khatedars, whose land.s were acquired for the submersion area of the Linganmakki reservoir ii; i Mysore State."}}, {"text": "sec. 18", "label": "PROVISION", "start_char": 4243, "end_char": 4250, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 4783, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "In appeals filed by the Acquisition Officer against the awards by the District Judge, the High Court of Mysore reduced the compensation to Rs."}}, {"text": "Tenancy Act XIII of 1952", "label": "STATUTE", "start_char": 10437, "end_char": 10461, "source": "regex", "metadata": {}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 10483, "end_char": 10489, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10668, "end_char": 10672, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 10923, "end_char": 10927, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10931, "end_char": 10935, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 11037, "end_char": 11042, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 11279, "end_char": 11285, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act XIII of 1952", "statute": "Tenancy Act XIII of 1952"}}, {"text": "sec. 3", "label": "PROVISION", "start_char": 11599, "end_char": 11605, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 4", "label": "PROVISION", "start_char": 11609, "end_char": 11615, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 1", "label": "PROVISION", "start_char": 11853, "end_char": 11859, "source": "regex", "metadata": {"statute": null}}, {"text": "1 lth March, 1957", "label": "DATE", "start_char": 12140, "end_char": 12157, "source": "ner", "metadata": {"in_sentence": "1 on the ground of such expiry or on the ground that the landlord required the land for his personal cultivation shall be deemed to have been cancelled and shall have no effect and all applications made by landlords for possession of lands in pursuance of rent notices shall on the 1 lth March, 1957 stand dismissed."}}, {"text": "March 31, 1962", "label": "DATE", "start_char": 12325, "end_char": 12339, "source": "ner", "metadata": {"in_sentence": "The Act was to remain in force till March 31, 1962 or such other date not later than one year after that date as the State Government may by notification specify."}}, {"text": "Sec. 3", "label": "PROVISION", "start_char": 12453, "end_char": 12459, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 12722, "end_char": 12728, "source": "regex", "metadata": {"statute": null}}, {"text": "Tf the nosition of the tenants as a result of the oneration of the Tenancv Act", "label": "STATUTE", "start_char": 14410, "end_char": 14488, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 14729, "end_char": 14734, "source": "regex", "metadata": {"linked_statute_text": "Tf the nosition of the tenants as a result of the oneration of the Tenancv Act", "statute": "Tf the nosition of the tenants as a result of the oneration of the Tenancv Act"}}]}
{"document_id": "1973_3_268_284_EN", "year": 1973, "text": "MASOOD ALAM ETC.\n\nUNION OF INDIA & ORS.\n\nJanuary I I, 1973\n\n[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ;]\n\nMr.inll!nance of Internal Security Act, 1971 Section 3(1), Section 14(2)- -\"Fresh facts\"-Whether fre!;/z detention can be orde.red without fresh facts after revocation of expiry of the earlier order-Mala (ides--\n\nWhether detention order under Maintenance of /ntlvnal Security Act mc..lafides, if ohjectionable activities attract preventive provisions (Chapter Vil/) of the Cr. P. C. also-Whether second detention Order rendered mala fide by the fact that the order was serl'ed when the detenu was already in jail.\n\nThe detenu was arrested on June 15. 1972 under section 3(l)(a)(i) a; nd (ii) of the Maintenance of Internal Security Act, 1971. The order was issued on the same' date on which he was arrested under sections\n\n107/117/151 of the Cr. P. C.\n\nThe order was to expire on the 26th June, 1972 as the same was not approved under s. 3(3) by the Gove'rn ment.\n\nOn 25-6-1972, a fresh order of detention was passed which was served on the detenu on 26·6·1972 \\.Vh'ile in jail.\n\nThe secqnd order did not mention any fresh grounds of detentions. Both the detention order were challenged on the grounds (i) that no fresh facts were disclosed for the fresh detention as required by s. 14(2) of act and\n\n(iii) that the orders were nuJa fide. Granting the wTit of habeas corpus and directing the release of the petitioner.\n\nHELD : The second detention order was made without alleging any fresh f-acts after the expiry of the first Ord.er.\n\nThe power of preventive detention is an extraordinary power intended to be exercised\n\nn extraordinary emergent circumstances. The legislative scheme of ss. 13 and 14 of the Act suggest that the detaining authority is expected to know n.nd to take into account all the exising grounds and make one order of detention which must not go beyond the periOd fixed and fix the maximum period of detention upto 12 months from the date of detention.\n\nIt is to effectuate this restriction on. the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to camouflage Of making a fresh order operative soon after the expiry of the period of detention, and also to mi:11imise t~ resort to detention orders, that s. i4 restricts the detention of a. person on given set of facts to the original order and does 1101 pe\"rmit a fresh order to be made on the same grounds which were in existence whe.n the original order \\Vas made. [276H~277D]\n\nManubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252 of 1972 dated 31·10-1972, relied on.\n\nSampat Prakash v. State of J, & K .. [1969] 3 S. C. R. 574, distinguished.\n\nIf the grounds are relevant and germane to the object of the Mainten<i; Tl'Ce of Internal Security Act, then merely because the obj, ection able activities covered thereby also attract the provisions <>f Chapter VIII H of the Cr. P.C., the preventive detntion cannot for that reason alone be considered to be ma/a fide provided the authority conce.med iJ satisfied of the necessity of the detention as contemplated by the Act. [273C]\n\nSahib Singh Dugga' v. Union of lndfo, [1966]\n\n1 S.C. R.\n\nMohGmmed Salem Khan v. C. C. Bose, A.LR.\n\n1972 S.C.\n\nBoriahan Gorey v. State of West Bengal, A.LR. 1972\n\nS.C. relied on.\n\n313, 2256, 2256,\n\nMerely because a person concerned has been served with a fresh deten~ tion order while in custody, that service can.not invalidate the order of dete; ntion.\n\nAlthough the past conduct, activities and antecedent history should be pfoximate in point of time and should have rational conc tion with the necessity for detention, what period of past activity should be considered is withi~ the discretion of the detaint:rrg authority.\n\n[275C-H] Ujagar Singh v. State of Punjab, [1952] S.C.R. 757, Makhan Singh Tarsikka v. State of Pwijab, A.LR. 1964 S.C. 1120 and Rameshwar S/; aw v. District Magistrate Burdwan, (1964] 4 S.C.R. 921, referred to.\n\nHadibandhu Das v. The District Magistrate, Cuttack, [1969] I S.C.R. 227 and Kshetra Gogoi v. State of Assam, [1970] 2 S.C.R. 517, held inapplicable.\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 469 and 470 of 1972.\n\nPetitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.\n\nBashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners.\n\nB. D. Sharma and R. N. Sachthey, for respondent No. I.\n\nD. P. Uniya/ and 0. P. Rana, for respondents Nos. 2 to 6 (in W.P. No. 469) and for respondent Nos. 223 (in W.P.\n\nNo. 470).\n\nThe Judgment of the Court was delivered by DuA, J. These two petitions under Art. 32 of the Constitution for writs in the nature of habeas corpus (Masood Alam v. Union of India & ors. W.P. no. 469 of 1972 and Abdul Bari Kairanvi\n\nv. Union of India W.P. No. 470 of 1972), have been heard together and are being disposed of by a common judgment.\n\nWrit Petition No. 469 of 1972 : In writ petition no. 469 of 1972 we made a short order on December 20, 1972 directing the release of Masood Alam unless he was required in some other case, reserving our reasons for his release to be given later. We now proceed to deal with the arguments advanced on his behalf and give our reasons for our decision.\n\nMasood Alam, detenu-petitioner, was arrested on June 15, 1972 pursuant to an order of detention dated June 14, 1972.\n\nNo copy of that order is produced on the record. It is, however, not disputed that the said order was made by the District Magis- :trate under s. 3(1)(a)(i) and (ii) of the Maintenance oflntemal\n\nSecurity Act, 1971 (Act no. 26 of 1971) (hereinafter called the Act). The grounds of detention signed by the District Magistrate, Aligarh were served on the petitioner on June 17, 1972, pursuant to s. 8 of the Act. Those grounds read :-\n\n\"( 1) That you have been exciting communal feelings amongst Muslims and feeling of disaffection towards the Government of India and of hatred to other communities.\n\nYou have also been advocating use of force by Muslims in India to secure withdrawal of the\n\n,1,.M.U. (Amendment) Bill, 1971-now an Act. rhc>e actions, which are a threat to security of the State ii!icl the maintenance of public order, find support from the following instances :-\n\n(i) that you are organiser at Aligarh of Youth\n\nMajlis a para-military organisation which imparts training to Muslims in the use of lathi, 5WOrds and knives, etc. You are member of Al Jehad, an international Islami~ movement. You are Naib Ami.r Ala Youth Majlis, U.P.\n\n(ii) You went to participate in Youth Majlis training camp at Varanasi. You were trained in the use of knife and demonstrated the same at a function of the Youth Majlis held in Mohalla\n\nTantanpara, Aligarh.\n\n(iii) You participated in a meeting addressed by\n\nShri Afaq Ahmed, Organiser, Youth Majlis,\n\nU.P.\n\n(iv) On 12-7-1971 you stressed upon members of\n\nYouth Majlis to organise branches of Youth F Majlis in each Mohalla. You went to Allahabad to participate in the Youth Majlis Camp organisd there from 23 to 26-6-71 and were made :!'\\· 1b Ala, U.P.\n\n( v) You attended the meeting held at your residence on 29-10-71 wherein training programme G of Youth Majlis in use of knife and aiming by air gun was discussed.\n\n(vi) You attended a private meeting of Muslim Majlis on 11-1-1971 at the residence of Dr.\n\nHanif in Mohalla Rasalganj, Aligarh. You disclosed there that the Youth Majlis was fully prepared to meet any situation on communal basis and pleaded for funds for Youth Majlis.\n\n2. That you have extra territorial loyalties and are, therefore, a threat to security of. India which is evidenced from the following instances :-\n\n(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh.\n\n(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda.\n\n(c) You attended a meeting on 20-10-1971 held at your residence wherein Abdul Bari Qairanvi asked the volunteers to remain vigilant and preparC$1 in view of lndo-Pak armies facing each other to meet the situation which might result therefrom. . ... \"\n\nThe Government, it appears, did not accord its approval of the petitioner's detention as reqliired by s. 3 ( 3) of the Act. According &o para 22 of the Writ Petition, the contents of which are not <:ontroverted, as expressly stated in para 12 of the counter affidavit, on June 26, 1972 at about 12 noon the following order was .served on the petitioner :-\n\n\"Sub : Release under Maintenance . of internal Security Act on 25-6-1972 at 23.50 hrs. under D.M.\n\nAligarh Order dated 25-6-1972.\n\nYou are hereby informed that you are released on 25-6-1972 at 23.50 hrs. vide D.M.\n\nAligarh Order dated 25-6-1972 on account of non-receipt of approval from State Government but you were detained in Jail as under trial under Rules 107/117, Cr. P.C. You may inform your relations or lawyer if you want to arrange your bail.\n\nSd/- Superintendent, Distt. Jail, Aligarh.\"\n\nA fresh order of detention was. a!So passed on June 25, 1972.\n\nThis order was made by the Governor of U.P. under s. 3(1) of\n\nthe Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads :\n\n\"Whereas the Governor of U ttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessarv so to order:- NOW THEREFORE, in exercise of the powers conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,. 1971 (no. 26 of 1971), the Governor is hereby pleased to direct that the said Sri Masood Alam shall be detained under subclause (ii) of clause (a) of sl!b-section ( l) of subsection ( 3) of the said Act in the District Jail, Aligarht in the custody of the Superintendent of the said Jail.\n\nBy order of the Governor.\n\nSd/-\n\nR. K. KAUL Special Secretary\".\n\nOn behalf of the petitioner both the aforsaid orders of detention are assailed before us.\n\nThe first contention pressed by Mr.\n\nBashir Ahmad, appearing for the. petitjpner relates to the earlier order of detention. He has tried to assail that order with the object of showing ma/a fides of the detaining authority in making the second order. In this connection it is noteworthy that according to the return of the '\"state of Uttar Pradesh as averred in para 27(r) of the counter-affidavit of Shri R. K. Kaul, Special Secretary, \"the petitioner was arrested on 15th June 1972 u~ section 107/117/151, Cr. P.C. and the order of detention was a:lsO' served on him by the District Magistrate on the same date. Orders for his release were issued by the District Magistrate under the Maintenance of Internal Security Act but he continned to be in\n\nJail under the above sections of the Cr. P.C.\" The order of release mentioned in this para has reference to the order dated\n\nfone 25, 1972 when the petitioner was supposed to have been\n\nreleaed from his detention because of non-approval of his defeil\" lion by the State Government.\n\nMr. Bashir AJ!mad the counsel for the detenu has contended that the grounds of detention dated•.\n\nJune 17, 1972 served on the petitioner under s. 8 of the Act only suggest a threat to the security of the State and the mainienance of public order and that this does not mean that the petitioner was likely to act in the near future in a marmer prejudicial to the security of State and maintenance of public order. This conten~\n\nt.ion ignores para 3 of the grounds. in which it is clearly stated that the District Magistrate was satisfied that the petitioner was likely to act in a manner prejudicial to the secunty of India, security of the State and maintenance of public order and that with a view to preventing him from so acting, it was necessary to detain him.\n\nThe submission that the use of the word 'likely' in this para only brings the petitioner's case within the purview of the provisions of Chapter VIII (Security Proceedings) of the Criminal Procedure Code thereby justifying only proceedings under s. 107 of the Code and that an order of detention in such circumstances is an abuse and misuse of the provisions of the Act has only to be stated to be rejected. If. the grounds are relevant and germane to the object of the Act then merely because the objectionable activities covered thereby also attract the provisions of Ch. VIII, Cr. P.C. the preventive detention cann.ot for that reason alone be considered to be mala fide provided the authority concerned is satisfied of the necessity of the detention as contemplated l)y the Act : see Sahib Singh Duggal v. Union of lndia(1), Mo!tammad Salem Khan v.\n\nC. C. Bose(') and Borjahan Gorey v.\n\nThe State of West Bengal(').\n\nThe jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority. It is designed to prevent the mischief from being committed by depriving its suspected author of the necessary facility for carrying out his nefarious purpose.\n\nThis jurisdiction is thus essentially different from that of judicial trials fer the commission of offences and also from preventive security proceedings in criminal courts. both of which proceed on obiective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the prescribed procedure. Merely because such jurisdiction of courts can also be validly invoked does not by itself exclude the jurisdiction of preventive detention under the Act. The earlier order. therefore, cannot be described to be either illegal or mala fide on this ground. Although the petitioner's present detention is founded on the order dated June 25. 1972 the earlier order was challenged with the sole object Of showing that the oresent detention is also mala fide because the authorifies are determined to keep the petitioner in custody irrespective of the existence or non-existence of valid grounds. We are not impressed by this submission and are unable to hold that the circumstances in which the earlier order was made in any way suggest ma/a [ides on the part ef the detaining authority in making the second order.\n\nRegarding the second order also it has been suggested that there is no imminent likelihood of the petitioner acting in a prejudicial manner and that his detention is thus an abuse or misuse\n\n(I) !1966] I S.C.R. 313.\n\n(2) A.T, R. 1972 S.C. 1760.\n\n(3) A.I.R. 1972 S.C. 2256.\n\nof the power of detention conferred by the Act. The scheme of our Constitution with respect to the fundamental right of personal liberty and the protecnon guaranteed against arrest and detention of the individual is intended to be real and effective, says the counsel, and adds that preventive detention of a person for any reason short of imminent likelihood of his acting in a prejudicial manner must be considered to be an invasion of this right. Our constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic. But the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedoms and personal liberty are designed to grow and flourish.\n\nThe larger interests of our multireligious nation as a whole and the cause of preserving and securing to every person the guaranteed freedoms peremptorily demand reasonable restrictions on the prejudicial activities of individuals which undoubtedly jeopardise\n\nthe rightful freedoms of the rest of the society. These restrictions within the constitutional limits have to be truly effective. If the detaining authority is of opinion on grounds which are germane D and relevant, that it is necessary to detain a person from acting prejudicially as contemplated by s. 3 of the Act then it is not for this Court to consider objectively how imminent is the likelihood of the detenu indulging in these activities.\n\nThis submission is thus unaceeptable.\n\nThe next point urged is that the petitioner had been served with the order of detention dated June 25, 1972 when he was in jail and that such service is invalid rendering the petitioner's detention void. This submission is generally unacceptable. There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the deiruning authority is satisfied that if free, the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public order. The decision in Makhan Singh Tarsikka v. State of\n\nPunjab(') does not lay down the broad proposition canvsed.\n\nIn that case which dealt with the Defence of India Rules it was observed that r. 30(1)(b) of these Rules postulates an order only where it is shown that but for the imposition of the detention, the person concerned would be able to carry out prejudicial activity of the character specified in r. 30(1). On plain construction of that sub-rule it was held that an order permitted by it could be served on a person who would be free otherwise to carry out his\n\nprejudicial activities and such a freedom could not be predicated of Makhan Singh Tarsikka, petitioner in that case.\n\nIt is noteworthy that the Court after referring with approval to its earlier\n\n(I) A.l.R. 1964 S.C. 1120.\n\ndecision in Rameshwar Shaw v. District Magistrate, Burdwan(') observed:\n\n\"'Besides when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may in a given case take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case it would be open to the appropriate authority to make an order of detention if the requisite conditions of the rule or the section are specified and served on the person concerned if and after he is acquitted in the said criminal proceedings\".\n\nNo doubt, this decision does suggest that the order of detention can be served on the person concerned if and after he is acquitted in the said criminal proceedings but in our view merely because the person concerned has been served while in custody when it is expected that he would soon be released that service cannot invalidate the order of detention.\n\nThe real hurdle in making an order of detention against a person already in custody is based on the view that is futile to keep a person in dual custody under two different orders but this objection cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease.\n\nIt has also been pointed out that the grounds relate to a period more than a year prior to the order of detention. This according to the submission also renders the order ma/a fide.\n\nIn our opinion, this contention is without merit. It has to be borne in mind that it is always the past conduct, activities or the antecedent history of a person which the detaining authority takes into account in malcing a detention order. No doubt the past conduct, activities or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary but it is for the detaining authority who has to arrive at a subjective satisfaction in considering the past activities and coming to his conclusion if on the the basis of those activities he is satisfied that the activities of the person concerned are such that he is likely to indulge in prejudicial activities necessitating his detention. As observed in Ujjagar\n\nSingh v. State of Punjab (2) it is largely from prior events or past conduct and antecedent history of a person showing tendencies or inclinations of a person concerned that an inference can be drawn whether he is likely even in the future to act in a manner !lrejudicial to the public order. If the authority is satisfied that in view of the past conduct of the person there is need for deten-\n\n(J) [1964) 4 S.C.R. 921.\n\n(2) [1952] S.C.R. 7s;.\n\ntion then it could not be said that the order of detention is not justified.\n\nThe next point raised on behalf of the petitioner is that the earlier order of detention was either revoked or had expired with the result that unless the present detention pursuant to the order dated June 25, 1972 is passed on fresh facts arising after the expiry or revocation of the earlier order it nrnst be held to be invalid.\n\nJn support of this submission reliance has been placed on s. 14 0f the Act which reads :\n\n.. 1.\\(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 a detention order may, at any time, be revoked or modified- ( a) notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3 by the State Government to which that officer is subordinate or by the Central Government.\n\n( b) notwithstanding that the order has been made by a State Government, by the Central Government.\n\n(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh f1,1cts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an Qrder should be made\".\n\nSupport has also been sought from Hadibandh11 Das v. The District _Magistrate, Cuttack(') which was a case under the Preven- F tive Detention Act (IV of 1950).\n\nThe language of s. 13(2) of that Act is identical with hat of s. 14(2) reproduced above.\n\nThis decision was followed in Kshetra Gogoi v. State of Assam(2 ) also a case under Act 4 of 1950. In our opinion, this submission does possess merit and deserves to be accepted. Section 14 speaks of revocation or expiry of a detention order.\n\nThe principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that. the appropriate Government can revoke or modify the detention order at any earlier time : s. 13. It is to effectuate this reS:- triction on the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of\n\n(I) [1%9] I S.C.R. 227.\n\n\n.. ~.\n\nA • . t\n\n• B\n\n' D\n\nmaking a fresh order operative soon after the expiry of the periodc . of detention, as also to minimise resort to detention orders that s. 14 restricts the detention of a person on given set of facts to the original order and does not permit a fresl:l order to be made on. the same grounds which were in existence when the original order was made.\n\nThe power of preventive detention being an extra-· ordinary power intended to be exercised only in extraordinary . emergent circumstances the legislative scheme of ss. 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond the maximull!l period fixed. In the present case it is not urged and indeed it isnot possible to urge that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State- Government, any fresh facts could arise for sustaining the fresh order of detention. The submission on behalf of the State that the petitioner's activities are so highly communal and prone to encourage violent communal activities that it was considered. abso!lltely necessary to detain him in the interest of security of the.\n\nState and maintenance of public order cannot prevail in face of the statutory restrictions and the guaranteed constitutional .right which is available to all persons. The rule of law reigns supremein this' Republic and no person on the soil of free India can be deprived of his personal liberty without the authority of law. As observed by this Court in Manu Bhusha11 Roy Prodha11 v. State of West Bengal(~) :\n\n/ \" .... The Act encroaches on the highly cherished right of personal liberty by conferring on the executive extraordinary power to detain persons without trial by ' ' coming to subjective decisions. The detaining authority in exercising this power must act strictly within the limitations this Act places on its power so that the guarantet: of personal liberty is not imperilled beyond what the Constitution and the law strictly provide. The limited right of redress conferred on the detenu under the law deserves to be construed with permissible liberality with the provisions of the Act and the constitutional guarantee.\"\n\nOn behalf of the respondent reference was also made to Sampaf Prakash v. State of Jammu & Kashmir (2 ) dealing with detention tinder J. & K. Preventive Detention Act (J. & K. Act 13 of 1964). Though in that Act there is a similar provision [s. 14-\n\n(2) of that Act] in the judgment there is no reference to that section and it appears that no question similar to the one raised\n\n(!) W.I. No. 252of1972 decided on October 31, 1972.\n\n\n:278 'SUPREME COURT ll.EPOll.TS [1973] 3 s.c.a..\n\nbefore us was urged and adjudicated upon there. We have, there A fore, no option but to order the petitioner's release which we did on December 20, 1972. As the detention order is being quashed on this ground we do not consider it necessary to express any opinion on the point that the detention order is vitiated because some of the grounds on which it is based, though not of unessen .tial nature, are vague.\n\nWrit Petition No. 470 of 1972 :\n\nAbdul Bari Kairanvi, petitioner in this writ petition, an associate of Masood Alam (Petitioner in W.P. No. 469 of 1972) both in the Youth Majlis and Muslim Majlis, was arrested on June 3, 1972 when he had organised in the City of Aligarh a procession in defiance of the order issued under s. 144, Cr. P.C. The general atmosphere of communal tension prevailing in that city ultimately culminated in the unfortunate communal riots on June 5, 1972.\n\nThe arrest was made unlier s. 188, l.P.C. and he was actually produced before the Additional District Magistrate on the very day of his arrest. On June 14, 1972 an order was made by the District Magistrate for the petitioner's detention under s. 3 ( f) (a)·\n\n( i) and (ii) of the Act as amended by the Defence of India Act 42 of 1971. The grounds of his detention which were duly serv ed on him under s. 8 of the Act read as under :-\n\n\"!. That you are a member of the Executive of the Muslim Majlis. You are also an active member of Youth Majlis.\n\nThe Youth Majlis is being trained in the use of lathis, swords and knives as a fully militant organisation. You contribute and raise funds to illegally' arm the organisation. You visited Pakistan in November, 1971 for arranging the transfer of funds collected by Shri Masood Alam in Pakistan to A!igarh for use by Youth Majlis for training volunteers in the use of arms and knives etc.\n\nYou collected Rs. 700 for Youth Majlis from Varanasi, Pratapgarh and other places.\n\n2. That you have extra territorial loyalties and are therefore a threat to security of India which is evident from the following instances:-\n\n(a) That you on 1-4-1971 listened to Pakistan Radio and propagated Pak policy towards Bangla Desh among the Muslims.\n\nYou also propagated that India engineered the trouble.\n\n(b) On 19-10-71 you participated in private meeting of commanders of Youth Majlis wherein you delivered a shon speech that India and Pakistan army were facing each other on the border and\n\n' ,\n\nthere was a great panic on the Indian side of the border. You also advised the commanders of the Youth Majlis to remain vigilant and prepared for any situation that might develop as a result of clash between India and Pakistan forces. You criticised India for allegedly meddling into the private affairs of Pakistan. You\n\npointed out to them that Bengalees had been taught a lesson and the Hindus in India would also share a similar fate if Pakistan forces invaded.\n\nYou accused police and army of favouring Hindus and stressed upon the commanders of Youth Majlis to remam prepared.\n\n( c) That you visited Pakistan in November, 1971 and returned from there on 30-11-1971 and' propagated that concentration of Pak army in Lahore sector was quite heavy and that real war would be fought in the sector.\n\n(d) That you on 10-12-1971 briefed volunteers of'\n\nY9uth Majlis that local Jan Sangh workers weretrying to tease the Muslims by making unbecoming remarks against Pakistan.\n\n3. That you have been exciting communal feelings among the Muslims in India and contributing to the communal disturbances in the Aligarh City which ill' evident from the following instances :-\n\n(a) That you on 15-10-71 attended the Executive Committee meeting of Youth Majlis at Jama Masjid Upor Kot, Aligarh where you demanded that A.M.U. (Amendment) Bill should guarantee minority character of the University.\n\n(b) That you on 10-3-1972 in your speech in a gathering of about one thousand Muslims at Jama Masjid in Upor Kot Aligarh City alleged that the enemies of Islam had a tradition to make efforts to wipe out Islamic religion and culture and at the present time also these enemies of Islam were trying to become aggressive.\n\nYou warned that in case the Muslims culture was Wiped out the Muslims will also be exterminated. You alleged that there was systematic attempt to abolish Urdu.\n\nYou exhorted the Muslims to be united and firm.\n\n(c) That on 19-5-1972 after a meting at Jama Masjid Upor Kot, Aligarh you distributed a\n\n'280\n\n\" i\n\n':\"'.' i,-1 •\n\npamphlet captioned \"Muslim University ki mot ka Akhiri marhela. Ek Jan aur ek Awazbankar usko bachyiye\" issued in your name and the names of Dr. Ahsan Ahmad and others. In the meeting in your short speech you pointed out that action, if delayed, would fail to achieve any result even by any amount of sacrifice of bloodshed.\n\nYou also remarked \"Hamari kom hamesha se talwar key saye me pali hai\" and as such no sacrifice was too grave for this occasion. ( d) That on 25-5-72 along with Dr. Ahsan Ahmad\n\nattended a meeting of about 25 persons at the residence of Abdul Jalil where Dr.· Ahsan Ahmad briefed the participants on the agitation, formation of action Committee and collec- tion of funds in connection with the agitation against A.M.U. (Amendment) Bill, 1972. 4. In view of . the above-mentioned grounds I am satisfied that you are likely to act in a manner prejudicial to the security of India, security of State and maintenance of public order and with a view to preventing you from acting in a manner prejudicial to the security - of India, security of State and maintenance of public order it is necessary to detain you.\" His detention was duly reported to the State Government on June 18, 1972 and the State Government gave its approval on June 25, 1972 which was duly reported to the Government of India on June 29, 1972. His case was sent to the Advisory Board on July 13, 1972 and the Board conveyed its decision on August 18/21,\n\n1972. His detention was confirmed on August 30, 1972. The petitioner had made his representation on July 15/24, 1972 -through the District Magistrate who forwarded it to the Govern: ment on July 29, 1972. The Government considered the repre- .\n\nsentation on August 2; 1972 and the decision of the Government was duly conveyed to rum on August 5, 1972.\n\nAccording to the petitioner's counsel Mr. Bashir Ahmed, the grounds on which the petitioner's detention has been ordered are 'irrelevant and, therefore, the detention is void. Emphasis is laid on the submission that the Youth Majlis and the Muslim Majlis are both organisations which do not advocate communal conflict or disharmony and the object of both of them is social service of the society. It is added that the Youth Majlis is a purely social organisation which is dedicated to the cause of the oppressed and the depressed and its membership is open to all persons irrespective of their community or religious cree<l.\n\nIn support of this\n\n~ .\n\n• n\n\n\"--{\n\nc --\n\n,.~\n\nD •\n\nt •\n\ni_:.\n\n. ~\n\nA contention the counsel sought to refer to the printed constiluton of the organisation in Urdu which was not permfi1lted, not bemg on the record and not being relevant to the limited scope of enquiry in the present proceedings.\n\nIn our opinion none of the grounds on which the petitioner's .detention has been ordered can be said to be irrelevant. The facts stated in the grounds have to n be accepted as correct and it is not open to this Court to enquire • into' their truth like a court of appeal. Writ proceedings cannot be treated as an appeal in disguise. And then it has to be borne in mind that it was in November, 1971 that the petitioner is said to have gone to Pakistan (it is asserted in the grounds that he visited Pakistan in November, 1971, and collected funds in that C country for the purpose of carrying on the activities of the Youth Majlis in India), and he returned on November 30, 1971, just three , days before the actual war between India and Pakistan began.\n\nJudicial notice under s. 57 of the Indian Evidence Act can be taken of the fact that the war between India and Pakistan actually began on December 3, 1971 lasting for about a fortnight.\n\nThe petitioner has admitted his visit to Pakistan in November, D 1971, the reason given by him being that he had gone there to see his ailing relations without mentioning either their names and\\ addresses or the relationship.\n\nAccording to the grounds, the petitioner has extra-territorial loyalties manifested by his anti- Indian and pro-Pakistan activities and also by inciting communal feelings amongst the Muslims during the period of tension E and conflict between India and Pakistan on the question of Bangla Desh.\n\nThe grounds further disclose, inter alia, (i) that the Youth .Majlis engages in training Muslims in India in the use of Jathis, swords and knives, and (ii) that the petitioner advised the commanders of the Youth Majlis in October, 1971 to be vigilant and remain prepared for any situation that might develop as a result 'F of clash between India and Pakistan forces, at the same time . suggesting invasion of India by Pakistan forces. An atteinp( has undoubtedly been made on behalf of the petitioner to show that the grounds on which the District Magistrate felt satisfied are non- existent but as observed earlier it is not open to this Court to review and over-ride the subjective opinion of the District Magistrate by going into the truth or otherwise of the facts acceoted by G him .. The facts contained in the grounds reproduced earlier seem to us to be clearly relevant for the pur_pose of forming an opinion that thev endanger both maintenance of oublic order and security of the State. It is undeniable that hostility amongst the citizens , founded on differences in re!igious .faiths is a deadly poison for healthy existence and progress of a secular, egalitarian society like JI ours. And when violence is advocated ind iniected in such hostility, it is idle to suggest that such activities cannot fall within the i_nischief designed to be prevented by the Act. In our country patriotism is not communal or religious and the Constitution\n\nguarantees equal freedom to all religious faiths without recognis ing the superior status of any particular religion. There is absolutely no discrimination on the basis of religion and indeed in this Repubtlic every citizen irrespective of his religious faith can aspire to the highest office, if otherwise qualified. Here people professing numerous different religious faiths and ideologies live in perfect harmony with equal rights guaranteed by the Constitution. Articles 25 to 281 and Art. 30 in Part III accord to the Right to Freedom of Religion and the Right of Minorities to Establish and Administer Educational Institutions, the status of fundamental rights which can be enforced in the highest courts in this country by appropriate means. Whenever, therefore, an attempt is made to disturb the peaceful, tolerant and harmonious life of the society by appealing to or inciting and in.flaming religious passions and prejudices and bly fanning morbid fanaticism it must necessarily tend to disturb the even tempo of the life of the society as a whole thereby prejudicially threateninJ!. the maintenance of public order. When such a climate in communal disharmony is engendered for stimulating anti-Indian and pro-Pakistan feelings during the period of extreme tension between the two countries then it must also tend to seriously prejudice the maintenance of security of the State.\n\nOur attention has 11, een drawn to the pamphlet Annexure A to the writ petition for the purpose of fortifying the argument thl!t the agitation with respect to othe Muslim University a!t Aligarh in which the petitioner had undeniably taken part was a non-violent movement. We do not think it is possible on 'the basis of this document to decline to accept the opinion of the District Magistrate who had sufficient material about the activities of the petitioner and of the organisations to which he himself professes to belong. This pamphlet which merely announced a meeting to be held on May 22, 1972 is, therefore, of little consequence.\n\nThe contention that the petitioner is a Muslim theologist highly qualified in Muslim theology, assuming it to be true, is also unhelpfol to the petitioner as the impugned order is J!lade on the basis of his activities which are considered clearly prejudicial to the maintenance of pub[ic order and security of State, His learning as a 'theologist is wholly immaterial. It neither places him above the law nor does it displace or detract from the opinion of the District Magistrate with respect to his activities and their effect.\n\nOn the contrary it has to be borne in mind that when a person professing to be learned in religious theology encourages defiance of law in the name of religion then ignorant and credulous people are more likely 'lO be misled and swayed by religious passions and sentiments.\n\nSuch activities naturally have greater potentiality for prejµdicially threatening the maintenance of puJ:>lic order.\n\nAccording to the writ petition the petitioner is an active member of the Muslim Majlis and also a member of the Youth. Majlis.\n\nHe was arrested while defying the order promulgated under s. 144, Cr. P.C. This had been preceded by the various prejudicial activities in the month of May, 1972 as stated in the gr2unds of detention and was followed two days later Ly communal clashes. This agitation was earr~ on in connection with a bill relating to the Aligarh Muslim University ignoring thllt the legal position in respect of ithis University had authoritatively settled by this Court as far back as October, 1967 in S. Azeez Basha v. Union of lndia(1').\n\nThese activities clearly bring the petitioner's case within s. 3 of rhe Act, being calculated to incite communal violence.\n\nIt has then been contended ithat some of the grounds of deten- 1ion conveyed to the petitioner are vague and, therefore, the order of detention is liable to be struck down as invalid. Reference has in this connection been made to 1he last two Jines of ground no. 1 relating to the collection of Rs. 700/- for Youth Majlis and to grounds nos. 2 and 3. The argument is wholly misconceived. If 1he last two lines are read, as they should be, along with the remaining contell'ls of ground no. 1 it cannot be said that the petitioner was unable to tender his explanation with respect to the allegation contained therein. Quite clearly, the exact poin~ of time and the people from whom small amounts were collected could not possibly be stated with precision. Grounds nos. 2 and 3, as is clear, contain precise details in the various clauses enumerated therein.\n\nAccording to ground no. 2 the petitioner has extra-territorial loyalties and, therefore, he is a threat to security of India and this conclusion is arrived at on the basis of the intances stated in els. (a) to ( d) which are precise and definite.\n\nSimilarly, ground no. 3 says that the petitioner has been exciting communal feelings among the Muslims in India and contributing to communal disturbancer in Aligarh city and this conclusicin is based on instances stated in els. (a) to (d) which are precise and definite. The instances under both these grounds are relevant and germaneJo the object which is sought to be achieved by s. 3 of the Act for the purpose of detaining persons who. are likely to aClt in a mannr prejudicial to the security of the State or maintenance of public order. The\n\n(I) [1068) 1 S.C.R. 833.\n\n~-L796Sup.C.I./73\n\ndecisions relied upon on behalf of the petitioner reported in\n\nDwarlca Dass Bhatia v. The State of Jammu & Kashmir(') and Pushkar Mukherjee & Ors. v. The State of West Bengal(') are, on the facts and circumstances of this case, of no assistance to him.\n\nThis writ petition accordingly fails and is dismissed.\n\nS.B.W.\n\nPetition dismissed.\n\n(I) [1956] S.C.R. 948. (2l f1969J 2 s.c.R. 635.", "total_entities": 137, "entities": [{"text": "MASOOD ALAM ETC", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "MASOOD ALAM ETC", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 18, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "January I I, 1973", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "January I I, 1973\n\n[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ;]\n\nMr.inll!nance of Internal Security Act, 1971 Section 3(1), Section 14(2)- -\"Fresh facts\"-Whether fre!;/z detention can be orde.red without fresh facts after revocation of expiry of the earlier order-Mala (ides--\n\nWhether detention order under Maintenance of /ntlvnal Security Act mc..lafides, if ohjectionable activities attract preventive provisions (Chapter Vil/) of the Cr."}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 78, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "I.D. 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District Magistrate Burdwan, (1964] 4 S.C.R. 921, referred to."}}, {"text": "(1964] 4 S.C.R. 921", "label": "CASE_CITATION", "start_char": 3930, "end_char": 3949, "source": "regex", "metadata": {}}, {"text": "[1970] 2 S.C.R. 517", "label": "CASE_CITATION", "start_char": 4074, "end_char": 4093, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4197, "end_char": 4207, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4215, "end_char": 4236, "source": "regex", "metadata": {}}, {"text": "Bashir Ahmadi", "label": "LAWYER", "start_char": 4281, "end_char": 4294, "source": "ner", "metadata": {"in_sentence": "Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners.", "canonical_name": "Bashir Ahmadi"}}, {"text": "K. L. Hathi", "label": "LAWYER", "start_char": 4296, "end_char": 4307, "source": "ner", "metadata": {"in_sentence": "Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners."}}, {"text": "Manzar VI-Islam", "label": "LAWYER", "start_char": 4309, "end_char": 4324, "source": "ner", "metadata": {"in_sentence": "Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners."}}, {"text": "P. C. Kapur", "label": "LAWYER", "start_char": 4329, "end_char": 4340, "source": "ner", "metadata": {"in_sentence": "Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur, for the petitioners."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 4364, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "B. D. Sharma and R. N. Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4381, "end_char": 4395, "source": "ner", "metadata": {"in_sentence": "B. D. Sharma and R. N. Sachthey, for respondent No."}}, {"text": "D. P. Uniya/", "label": "LAWYER", "start_char": 4420, "end_char": 4432, "source": "ner", "metadata": {"in_sentence": "I.\n\nD. P. Uniya/ and 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 4440, "end_char": 4447, "source": "ner", "metadata": {"in_sentence": "P. Rana, for respondents Nos."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4587, "end_char": 4590, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by DuA, J. These two petitions under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4621, "end_char": 4628, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Masood Alam", "label": "PETITIONER", "start_char": 5022, "end_char": 5033, "source": "ner", "metadata": {"in_sentence": "469 of 1972 we made a short order on December 20, 1972 directing the release of Masood Alam unless he was required in some other case, reserving our reasons for his release to be given later.", "canonical_name": "MASOOD ALAM ETC"}}, {"text": "Masood Alam", "label": "PETITIONER", "start_char": 5239, "end_char": 5250, "source": "ner", "metadata": {"in_sentence": "Masood Alam, detenu-petitioner, was arrested on June 15, 1972 pursuant to an order of detention dated June 14, 1972.", "canonical_name": "MASOOD ALAM ETC"}}, {"text": "June 15, 1972", "label": "DATE", "start_char": 5287, "end_char": 5300, "source": "ner", "metadata": {"in_sentence": "Masood Alam, detenu-petitioner, was arrested on June 15, 1972 pursuant to an order of detention dated June 14, 1972."}}, {"text": "June 14, 1972", "label": "DATE", "start_char": 5341, "end_char": 5354, "source": "ner", "metadata": {"in_sentence": "Masood Alam, detenu-petitioner, was arrested on June 15, 1972 pursuant to an order of detention dated June 14, 1972."}}, {"text": "s. 3(1)(a)(i)", "label": "PROVISION", "start_char": 5500, "end_char": 5513, "source": "regex", "metadata": {"statute": null}}, {"text": "Security Act, 1971", "label": "STATUTE", "start_char": 5553, "end_char": 5571, "source": "regex", "metadata": {}}, {"text": "June 17, 1972", "label": "DATE", "start_char": 5724, "end_char": 5737, "source": "ner", "metadata": {"in_sentence": "The grounds of detention signed by the District Magistrate, Aligarh were served on the petitioner on June 17, 1972, pursuant to s. 8 of the Act."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 5751, "end_char": 5755, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance oflntemal\n\nSecurity Act, 1971", "statute": "the Maintenance oflntemal\n\nSecurity Act, 1971"}}, {"text": "Government of India", "label": "ORG", "start_char": 5899, "end_char": 5918, "source": "ner", "metadata": {"in_sentence": "Those grounds read :-\n\n\"( 1) That you have been exciting communal feelings amongst Muslims and feeling of disaffection towards the Government of India and of hatred to other communities."}}, {"text": "India", "label": "GPE", "start_char": 6013, "end_char": 6018, "source": "ner", "metadata": {"in_sentence": "You have also been advocating use of force by Muslims in India to secure withdrawal of the\n\n,1,."}}, {"text": "Aligarh", "label": "GPE", "start_char": 6267, "end_char": 6274, "source": "ner", "metadata": {"in_sentence": "rhc>e actions, which are a threat to security of the State ii!icl the maintenance of public order, find support from the following instances :-\n\n(i) that you are organiser at Aligarh of Youth\n\nMajlis a para-military organisation which imparts training to Muslims in the use of lathi, 5WOrds and knives, etc."}}, {"text": "Varanasi", "label": "GPE", "start_char": 6568, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "You are Naib Ami.r Ala Youth Majlis, U.P.\n\n(ii) You went to participate in Youth Majlis training camp at Varanasi."}}, {"text": "Afaq Ahmed", "label": "LAWYER", "start_char": 6769, "end_char": 6779, "source": "ner", "metadata": {"in_sentence": "(iii) You participated in a meeting addressed by\n\nShri Afaq Ahmed, Organiser, Youth Majlis,\n\nU.P.\n\n(iv) On 12-7-1971 you stressed upon members of\n\nYouth Majlis to organise branches of Youth F Majlis in each Mohalla.", "canonical_name": "Afaq Ahmed"}}, {"text": "12-7-1971", "label": "DATE", "start_char": 6821, "end_char": 6830, "source": "ner", "metadata": {"in_sentence": "(iii) You participated in a meeting addressed by\n\nShri Afaq Ahmed, Organiser, Youth Majlis,\n\nU.P.\n\n(iv) On 12-7-1971 you stressed upon members of\n\nYouth Majlis to organise branches of Youth F Majlis in each Mohalla."}}, {"text": "Allahabad", "label": "GPE", "start_char": 6942, "end_char": 6951, "source": "ner", "metadata": {"in_sentence": "You went to Allahabad to participate in the Youth Majlis Camp organisd there from 23 to 26-6-71 and were made :!'\\·"}}, {"text": "Hanif", "label": "OTHER_PERSON", "start_char": 7315, "end_char": 7320, "source": "ner", "metadata": {"in_sentence": "(vi) You attended a private meeting of Muslim Majlis on 11-1-1971 at the residence of Dr.\n\nHanif in Mohalla Rasalganj, Aligarh."}}, {"text": "Pakistan", "label": "GPE", "start_char": 7658, "end_char": 7666, "source": "ner", "metadata": {"in_sentence": "India which is evidenced from the following instances :-\n\n(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh."}}, {"text": "29-4-1971", "label": "DATE", "start_char": 7694, "end_char": 7703, "source": "ner", "metadata": {"in_sentence": "India which is evidenced from the following instances :-\n\n(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh."}}, {"text": "Afaq Ahmad", "label": "LAWYER", "start_char": 7752, "end_char": 7762, "source": "ner", "metadata": {"in_sentence": "India which is evidenced from the following instances :-\n\n(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh.", "canonical_name": "Afaq Ahmed"}}, {"text": "U.P.", "label": "GPE", "start_char": 7788, "end_char": 7792, "source": "ner", "metadata": {"in_sentence": "India which is evidenced from the following instances :-\n\n(a) You visited Pakistan and returned from there on 29-4-1971 and participated in a meeting addressed by Shri Afaq Ahmad, Organiser Youth Majlis, U.P. In this meeting you disclosed that you had developed many contacts in Pakistan and that people there had given you enough money for the help of Muslims in Aligarh."}}, {"text": "16-7-1971", "label": "DATE", "start_char": 7969, "end_char": 7978, "source": "ner", "metadata": {"in_sentence": "(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda."}}, {"text": "Abdul Bari Qairanvi", "label": "PETITIONER", "start_char": 7990, "end_char": 8009, "source": "ner", "metadata": {"in_sentence": "(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda.", "canonical_name": "Abdul Bari Qairanvi"}}, {"text": "Mohammad Obed", "label": "OTHER_PERSON", "start_char": 8014, "end_char": 8027, "source": "ner", "metadata": {"in_sentence": "(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda."}}, {"text": "Bangla Desh", "label": "OTHER_PERSON", "start_char": 8090, "end_char": 8101, "source": "ner", "metadata": {"in_sentence": "(b) You on 16-7-1971 along with Abdul Bari Qairanvi and Mohammad Obed were noticed criticising Government of India's policy towards Bangla Desh and accused Government of India and Indian Press of carrying on a false propaganda."}}, {"text": "20-10-1971", "label": "DATE", "start_char": 8217, "end_char": 8227, "source": "ner", "metadata": {"in_sentence": "(c) You attended a meeting on 20-10-1971 held at your residence wherein Abdul Bari Qairanvi asked the volunteers to remain vigilant and preparC$1 in view of lndo-Pak armies facing each other to meet the situation which might result therefrom. . ... \""}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8541, "end_char": 8545, "source": "regex", "metadata": {"statute": null}}, {"text": "State Government but you were detained in Jail as under trial under Rules", "label": "STATUTE", "start_char": 9084, "end_char": 9157, "source": "regex", "metadata": {}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 9409, "end_char": 9416, "source": "regex", "metadata": {"linked_statute_text": "State Government but you were detained in Jail as under trial under Rules", "statute": "State Government but you were detained in Jail as under trial under Rules"}}, {"text": "U ttar Pradesh", "label": "GPE", "start_char": 9535, "end_char": 9549, "source": "ner", "metadata": {"in_sentence": "This order was made by the Governor of U.P. under s. 3(1) of\n\nthe Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads :\n\n\"Whereas the Governor of U ttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessarv so to order:- NOW THEREFORE, in exercise of the powers conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,."}}, {"text": "Baboo Ayoob", "label": "OTHER_PERSON", "start_char": 9611, "end_char": 9622, "source": "ner", "metadata": {"in_sentence": "This order was made by the Governor of U.P. under s. 3(1) of\n\nthe Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads :\n\n\"Whereas the Governor of U ttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessarv so to order:- NOW THEREFORE, in exercise of the powers conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,."}}, {"text": "Aligarh City", "label": "GPE", "start_char": 9658, "end_char": 9670, "source": "ner", "metadata": {"in_sentence": "This order was made by the Governor of U.P. under s. 3(1) of\n\nthe Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads :\n\n\"Whereas the Governor of U ttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessarv so to order:- NOW THEREFORE, in exercise of the powers conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,."}}, {"text": "section 3", "label": "PROVISION", "start_char": 9915, "end_char": 9924, "source": "regex", "metadata": {"linked_statute_text": "State Government but you were detained in Jail as under trial under Rules", "statute": "State Government but you were detained in Jail as under trial under Rules"}}, {"text": "Internal Security Act", "label": "STATUTE", "start_char": 9948, "end_char": 9969, "source": "regex", "metadata": {}}, {"text": "R. K. KAUL", "label": "LAWYER", "start_char": 10295, "end_char": 10305, "source": "ner", "metadata": {"in_sentence": "Sd/-\n\nR. K. KAUL Special Secretary\".", "canonical_name": "R. K. KAUL"}}, {"text": "Bashir Ahmad", "label": "LAWYER", "start_char": 10455, "end_char": 10467, "source": "ner", "metadata": {"in_sentence": "The first contention pressed by Mr.\n\nBashir Ahmad, appearing for the.", "canonical_name": "Bashir Ahmadi"}}, {"text": "state of Uttar Pradesh", "label": "RESPONDENT", "start_char": 10743, "end_char": 10765, "source": "ner", "metadata": {"in_sentence": "In this connection it is noteworthy that according to the return of the '\"state of Uttar Pradesh as averred in para 27(r) of the counter-affidavit of Shri R. K. Kaul, Special Secretary, \"the petitioner was arrested on 15th June 1972 u~ section 107/117/151, Cr."}}, {"text": "R. K. Kaul", "label": "LAWYER", "start_char": 10824, "end_char": 10834, "source": "ner", "metadata": {"in_sentence": "In this connection it is noteworthy that according to the return of the '\"state of Uttar Pradesh as averred in para 27(r) of the counter-affidavit of Shri R. K. Kaul, Special Secretary, \"the petitioner was arrested on 15th June 1972 u~ section 107/117/151, Cr.", "canonical_name": "R. K. KAUL"}}, {"text": "section 107", "label": "PROVISION", "start_char": 10905, "end_char": 10916, "source": "regex", "metadata": {"linked_statute_text": "Internal Security Act", "statute": "Internal Security Act"}}, {"text": "Bashir AJ!mad", "label": "LAWYER", "start_char": 11455, "end_char": 11468, "source": "ner", "metadata": {"in_sentence": "Mr. Bashir AJ!mad the counsel for the detenu has contended that the grounds of detention dated•.\n\nJune 17, 1972 served on the petitioner under s. 8 of the Act only suggest a threat to the security of the State and the mainienance of public order and that this does not mean that the petitioner was likely to act in the near future in a marmer prejudicial to the security of State and maintenance of public order.", "canonical_name": "Bashir Ahmadi"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 11594, "end_char": 11598, "source": "regex", "metadata": {"linked_statute_text": "Orders for his release were issued by the District Magistrate under the Maintenance of Internal Security Act", "statute": "Orders for his release were issued by the District Magistrate under the Maintenance of Internal Security Act"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 12462, "end_char": 12468, "source": "regex", "metadata": {"statute": null}}, {"text": "June 25. 1972", "label": "DATE", "start_char": 14132, "end_char": 14145, "source": "ner", "metadata": {"in_sentence": "Although the petitioner's present detention is founded on the order dated June 25."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16297, "end_char": 16301, "source": "regex", "metadata": {"statute": null}}, {"text": "June 25, 1972", "label": "DATE", "start_char": 16577, "end_char": 16590, "source": "ner", "metadata": {"in_sentence": "The next point urged is that the petitioner had been served with the order of detention dated June 25, 1972 when he was in jail and that such service is invalid rendering the petitioner's detention void."}}, {"text": "Makhan Singh Tarsikka", "label": "PETITIONER", "start_char": 17725, "end_char": 17746, "source": "ner", "metadata": {"in_sentence": "On plain construction of that sub-rule it was held that an order permitted by it could be served on a person who would be free otherwise to carry out his\n\nprejudicial activities and such a freedom could not be predicated of Makhan Singh Tarsikka, petitioner in that case."}}, {"text": "[1964) 4 S.C.R. 921", "label": "CASE_CITATION", "start_char": 20618, "end_char": 20637, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 21133, "end_char": 21138, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 21214, "end_char": 21224, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 21232, "end_char": 21257, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 21414, "end_char": 21423, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Central Government", "label": "ORG", "start_char": 21495, "end_char": 21513, "source": "ner", "metadata": {"in_sentence": "Jn support of this submission reliance has been placed on s. 14 0f the Act which reads :\n\n.. 1.\\(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 a detention order may, at any time, be revoked or modified- ( a) notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3 by the State Government to which that officer is subordinate or by the Central Government."}}, {"text": "section 3", "label": "PROVISION", "start_char": 21725, "end_char": 21734, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 22158, "end_char": 22166, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 22204, "end_char": 22212, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 22411, "end_char": 22421, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 22844, "end_char": 22849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 23198, "end_char": 23203, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 13 and 14", "label": "PROVISION", "start_char": 23575, "end_char": 23588, "source": "regex", "metadata": {"statute": null}}, {"text": "Preventive Detention Act", "label": "STATUTE", "start_char": 25547, "end_char": 25571, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 25647, "end_char": 25652, "source": "regex", "metadata": {"linked_statute_text": "Preventive Detention Act", "statute": "Preventive Detention Act"}}, {"text": "October 31, 1972", "label": "DATE", "start_char": 25819, "end_char": 25835, "source": "ner", "metadata": {"in_sentence": "252of1972 decided on October 31, 1972."}}, {"text": "December 20, 1972", "label": "DATE", "start_char": 26024, "end_char": 26041, "source": "ner", "metadata": {"in_sentence": "We have, there A fore, no option but to order the petitioner's release which we did on December 20, 1972."}}, {"text": "Abdul Bari Kairanvi", "label": "PETITIONER", "start_char": 26334, "end_char": 26353, "source": "ner", "metadata": {"in_sentence": "470 of 1972 :\n\nAbdul Bari Kairanvi, petitioner in this writ petition, an associate of Masood Alam (Petitioner in W.P. No.", "canonical_name": "Abdul Bari Qairanvi"}}, {"text": "s. 144", "label": "PROVISION", "start_char": 26623, "end_char": 26629, "source": "regex", "metadata": {"statute": null}}, {"text": "June 5, 1972", "label": "DATE", "start_char": 26766, "end_char": 26778, "source": "ner", "metadata": {"in_sentence": "P.C. The general atmosphere of communal tension prevailing in that city ultimately culminated in the unfortunate communal riots on June 5, 1972."}}, {"text": "s. 188", "label": "PROVISION", "start_char": 26808, "end_char": 26814, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 27024, "end_char": 27028, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 27182, "end_char": 27186, "source": "regex", "metadata": {"statute": null}}, {"text": "A!igarh", "label": "GPE", "start_char": 27624, "end_char": 27631, "source": "ner", "metadata": {"in_sentence": "You visited Pakistan in November, 1971 for arranging the transfer of funds collected by Shri Masood Alam in Pakistan to A!igarh for use by Youth Majlis for training volunteers in the use of arms and knives etc."}}, {"text": "Pratapgarh", "label": "GPE", "start_char": 27770, "end_char": 27780, "source": "ner", "metadata": {"in_sentence": "700 for Youth Majlis from Varanasi, Pratapgarh and other places."}}, {"text": "1-4-1971", "label": "DATE", "start_char": 27958, "end_char": 27966, "source": "ner", "metadata": {"in_sentence": "That you have extra territorial loyalties and are therefore a threat to security of India which is evident from the following instances:-\n\n(a) That you on 1-4-1971 listened to Pakistan Radio and propagated Pak policy towards Bangla Desh among the Muslims."}}, {"text": "19-10-71", "label": "DATE", "start_char": 28123, "end_char": 28131, "source": "ner", "metadata": {"in_sentence": "(b) On 19-10-71 you participated in private meeting of commanders of Youth Majlis wherein you delivered a shon speech that India and Pakistan army were facing each other on the border and\n\n' ,\n\nthere was a great panic on the Indian side of the border."}}, {"text": "Indian", "label": "GPE", "start_char": 28341, "end_char": 28347, "source": "ner", "metadata": {"in_sentence": "(b) On 19-10-71 you participated in private meeting of commanders of Youth Majlis wherein you delivered a shon speech that India and Pakistan army were facing each other on the border and\n\n' ,\n\nthere was a great panic on the Indian side of the border."}}, {"text": "Bengalees", "label": "OTHER_PERSON", "start_char": 28657, "end_char": 28666, "source": "ner", "metadata": {"in_sentence": "You\n\npointed out to them that Bengalees had been taught a lesson and the Hindus in India would also share a similar fate if Pakistan forces invaded."}}, {"text": "Lahore", "label": "GPE", "start_char": 29031, "end_char": 29037, "source": "ner", "metadata": {"in_sentence": "( c) That you visited Pakistan in November, 1971 and returned from there on 30-11-1971 and' propagated that concentration of Pak army in Lahore sector was quite heavy and that real war would be fought in the sector."}}, {"text": "15-10-71", "label": "DATE", "start_char": 29494, "end_char": 29502, "source": "ner", "metadata": {"in_sentence": "That you have been exciting communal feelings among the Muslims in India and contributing to the communal disturbances in the Aligarh City which ill' evident from the following instances :-\n\n(a) That you on 15-10-71 attended the Executive Committee meeting of Youth Majlis at Jama Masjid Upor Kot, Aligarh where you demanded that A.M.U. (Amendment) Bill should guarantee minority character of the University."}}, {"text": "19-5-1972", "label": "DATE", "start_char": 30239, "end_char": 30248, "source": "ner", "metadata": {"in_sentence": "(c) That on 19-5-1972 after a meting at Jama Masjid Upor Kot, Aligarh you distributed a\n\n'280\n\n\" i\n\n':\"'.'"}}, {"text": "Muslim University ki mot ka Akhiri marhela. Ek Jan aur ek Awazbankar usko bachyiye", "label": "ORG", "start_char": 30362, "end_char": 30444, "source": "ner", "metadata": {"in_sentence": "i,-1 •\n\npamphlet captioned \"Muslim University ki mot ka Akhiri marhela."}}, {"text": "Ahsan Ahmad", "label": "OTHER_PERSON", "start_char": 30487, "end_char": 30498, "source": "ner", "metadata": {"in_sentence": "Ek Jan aur ek Awazbankar usko bachyiye\" issued in your name and the names of Dr. Ahsan Ahmad and others."}}, {"text": "25-5-72", "label": "DATE", "start_char": 30809, "end_char": 30816, "source": "ner", "metadata": {"in_sentence": "d) That on 25-5-72 along with Dr. Ahsan Ahmad\n\nattended a meeting of about 25 persons at the residence of Abdul Jalil where Dr.· Ahsan Ahmad briefed the participants on the agitation, formation of action Committee and collec- tion of funds in connection with the agitation against A.M.U. (Amendment) Bill, 1972."}}, {"text": "Abdul Jalil", "label": "OTHER_PERSON", "start_char": 30904, "end_char": 30915, "source": "ner", "metadata": {"in_sentence": "d) That on 25-5-72 along with Dr. Ahsan Ahmad\n\nattended a meeting of about 25 persons at the residence of Abdul Jalil where Dr.· Ahsan Ahmad briefed the participants on the agitation, formation of action Committee and collec- tion of funds in connection with the agitation against A.M.U. (Amendment) Bill, 1972."}}, {"text": "June 18, 1972", "label": "DATE", "start_char": 31535, "end_char": 31548, "source": "ner", "metadata": {"in_sentence": "His detention was duly reported to the State Government on June 18, 1972 and the State Government gave its approval on June 25, 1972 which was duly reported to the Government of India on June 29, 1972."}}, {"text": "June 29, 1972", "label": "DATE", "start_char": 31663, "end_char": 31676, "source": "ner", "metadata": {"in_sentence": "His detention was duly reported to the State Government on June 18, 1972 and the State Government gave its approval on June 25, 1972 which was duly reported to the Government of India on June 29, 1972."}}, {"text": "July 13, 1972", "label": "DATE", "start_char": 31721, "end_char": 31734, "source": "ner", "metadata": {"in_sentence": "His case was sent to the Advisory Board on July 13, 1972 and the Board conveyed its decision on August 18/21,\n\n1972."}}, {"text": "August 18/21,\n\n1972", "label": "DATE", "start_char": 31774, "end_char": 31793, "source": "ner", "metadata": {"in_sentence": "His case was sent to the Advisory Board on July 13, 1972 and the Board conveyed its decision on August 18/21,\n\n1972."}}, {"text": "August 30, 1972", "label": "DATE", "start_char": 31826, "end_char": 31841, "source": "ner", "metadata": {"in_sentence": "His detention was confirmed on August 30, 1972."}}, {"text": "July 15/24, 1972", "label": "DATE", "start_char": 31889, "end_char": 31905, "source": "ner", "metadata": {"in_sentence": "The petitioner had made his representation on July 15/24, 1972 -through the District Magistrate who forwarded it to the Govern: ment on July 29, 1972."}}, {"text": "July 29, 1972", "label": "DATE", "start_char": 31979, "end_char": 31992, "source": "ner", "metadata": {"in_sentence": "The petitioner had made his representation on July 15/24, 1972 -through the District Magistrate who forwarded it to the Govern: ment on July 29, 1972."}}, {"text": "August 2; 1972", "label": "DATE", "start_char": 32047, "end_char": 32061, "source": "ner", "metadata": {"in_sentence": "sentation on August 2; 1972 and the decision of the Government was duly conveyed to rum on August 5, 1972."}}, {"text": "August 5, 1972", "label": "DATE", "start_char": 32125, "end_char": 32139, "source": "ner", "metadata": {"in_sentence": "sentation on August 2; 1972 and the decision of the Government was duly conveyed to rum on August 5, 1972."}}, {"text": "Bashir Ahmed", "label": "LAWYER", "start_char": 32184, "end_char": 32196, "source": "ner", "metadata": {"in_sentence": "According to the petitioner's counsel Mr. Bashir Ahmed, the grounds on which the petitioner's detention has been ordered are 'irrelevant and, therefore, the detention is void.", "canonical_name": "Bashir Ahmadi"}}, {"text": "November 30, 1971", "label": "DATE", "start_char": 33727, "end_char": 33744, "source": "ner", "metadata": {"in_sentence": "And then it has to be borne in mind that it was in November, 1971 that the petitioner is said to have gone to Pakistan (it is asserted in the grounds that he visited Pakistan in November, 1971, and collected funds in that C country for the purpose of carrying on the activities of the Youth Majlis in India), and he returned on November 30, 1971, just three , days before the actual war between India and Pakistan began."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 33843, "end_char": 33848, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 33856, "end_char": 33875, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 3, 1971", "label": "DATE", "start_char": 33959, "end_char": 33975, "source": "ner", "metadata": {"in_sentence": "Judicial notice under s. 57 of the Indian Evidence Act can be taken of the fact that the war between India and Pakistan actually began on December 3, 1971 lasting for about a fortnight."}}, {"text": "Articles 25 to 281", "label": "PROVISION", "start_char": 36447, "end_char": 36465, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 30", "label": "PROVISION", "start_char": 36470, "end_char": 36477, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "May 22, 1972", "label": "DATE", "start_char": 37959, "end_char": 37971, "source": "ner", "metadata": {"in_sentence": "This pamphlet which merely announced a meeting to be held on May 22, 1972 is, therefore, of little consequence."}}, {"text": "s. 144", "label": "PROVISION", "start_char": 39121, "end_char": 39127, "source": "regex", "metadata": {"statute": null}}, {"text": "Aligarh Muslim University", "label": "ORG", "start_char": 39386, "end_char": 39411, "source": "ner", "metadata": {"in_sentence": "This agitation was earr~ on in connection with a bill relating to the Aligarh Muslim University ignoring thllt the legal position in respect of ithis University had authoritatively settled by this Court as far back as October, 1967 in S. Azeez Basha v. Union of lndia(1')."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 39650, "end_char": 39654, "source": "regex", "metadata": {"statute": null}}, {"text": "Aligarh city", "label": "GPE", "start_char": 40976, "end_char": 40988, "source": "ner", "metadata": {"in_sentence": "3 says that the petitioner has been exciting communal feelings among the Muslims in India and contributing to communal disturbancer in Aligarh city and this conclusicin is based on instances stated in els. ("}}, {"text": "s. 3", "label": "PROVISION", "start_char": 41201, "end_char": 41205, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_285_302_EN", "year": 1973, "text": "MUNICIPAL CORPORATION OF GREATER BOMBAY\n\nTHE B.E.S.T. WORKERS' UNION\n\nJanuary 12, 1973 {A. ALAGIRISWAMI, I. D. DuA AND C. A. VAIDIALINGAM, JJ.]\n\nBombay Industrial Relations Act, 1946, s. 78(l)(d) (i)-Scope of.\n\nThe appellant, the Mu:nicipal Corporation of Greater Bombay, csta blisbed the Jlombay Electric Supply and Transport Undertaking for the purpose of providing and operating motor transport and supplying elec tricity to the consumers in the city of Bombay.\n\nWorkman Shri Naik, empk>yed as Assistant Fitter in the Transporta tio.n Engineering Department at the Appellant's Workshop and another employee employed under the Appellant as a mechanic were found by the S. I. of Police with gunny bags in their hands and each bag contained 22 brass bearings. On investigation it was found that Naik was an employee u:nder the Appellant and that the brass beatings had been removed from the Appellant's Workshops with the help and C-O operation of the mechanic.\n\nA complaint of theft against the two workmen was launched.\n\nAn inquiry was held by an officer of the appellant and after evidence by the police officers and others, the Enquiry Officer found Shri Naik guilty and an order of dismissal was passed on February 11, 1970.\n\nApPeals to the Executive Engineer and Assistant General Manager of the appellant were all dismissed.\n\nNaik and the mcchan.ic thereafter, filed applications before the 5th Labour Court at Bombay challenging the order of dismissal on various grounds. The Labour Court, after CCl!Sidering all the facts and evidence held that as the orders of dismissal were not passed within x months of the misconduct coming to the notice of the employer, they were illegal and have to be set aside under s. 78(1)(d)(i) of the Act. The Labour Court further ordered the appellant to pay each of the workmen his back wages from the date of dismissal till the date of order and also in addition to pay compensation of Rs. 1500/-.\n\nThe main point that arose for ca.nsideration was the interpretation of the provisions of s. 78(1)(d) of the Act etc.\n\nAllowing the appeal, Held: (i) The word \"shall\" in s. 78(1) should not be stricUy construed and when the relevant provisions are read 'in the context in which they appear, it cannot be doubted that the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct and also the nature of con1ravcntion of any provi sions of law or standing order. The fact that s. 78(1) of the Act has conferred certain powers on the LabQur Court does not mean that the Labour Court must necessarily and under all circumstances grant the reliefs which it has the power to grant; It is well established proposition that the power to grant certain reliefs includes the power bf refilling the telief. If an employer in a palticular case has passed an order of punishment beyond the period of six montha and it it . is found that he has no satisfactory exp!Ol!Qtion for the delay, the Labour Court may be justified in straightaway settinv; aside the orders\n\non the ground that thev have been passed beyond the period of six months.\n\nIf, on the other hand, as in the present ca~, an employer has been vigilant in initiating disciplinary proceed!\"gs an.d the Labour Court is satisfied about the reasons for the delay in passmg the ordeill\n\nof punishment, the Labour Court is not justifu:d in setting aside the orders solely on the ground that.the period of six months had expired. [296B-H; 297A-C, E-Hl \\ii) Provisions contained in s. 78(1)(d)(i) are not mandatory. but only directory. Therefore, the interpretation based by the Labour Court on s. 78(1)(d)(i) is erroneous. Accordingly, the two orders granting reliefs to the workmen are set aside. [298D-E; 302B]\n\nRaipur Co-operative Centrt.J Bcu1k Ltd. am! Anr. v. StaJe Industrial Court, llldore & Ors., [1963] I L.L.J. 790, M/is. Chotabhai Jethabhai Patel & Co. v. The Industrial Cow~. Nagpur & Ors.,\n\nA., J.R. 1972 S.C. 1268, Jbrah; nz Abbobaker &: Anr. v. Custodian-General of Evacuee Property, [1962) S.C.R. 696, State of U.P. & Drs. v.\n\nBaburam Upc.dhya, [1961] 2 S.C.R. 679, Rmrington Rand of India Ltd. v. The Workmen, [196&] I S.C.R. 164 and Driscoll v. Church Commissioner for England, [1957!] I Q.B. 330, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1774 & 1775 of 1971.\n\nF. S. Nadman, Addi. Solicitor-General of India, Y. S. Chitale, D D. C. Shroff. 0. C. Mathur, Bhuvanesh Kumari and Ravinder Narain, for the appellant.\n\nS. V. Gupte, S. B. Naik and K. Rajendra Choudhury, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nVAID!ALINGAM, J.-In these two appeals, by special leave the common question that arises for coosideration is the proper interpretation to be placed on section 78 (1 )(D) of the Bombay Industrial Relations Act 1946 (Bombay Act No. XI of 1947) hereinafter referred to as the Act.\n\nThe appellant in both the appeals, the Municipal Corporation of Greater Bombay, is a bOOy corporate coostituted under the Bombay Municipal Corporation Act 1888. For the purposes of providing and operating motor transport and for supplying electricity to the consumers in the city d Bombay, the appellant has established under the provisioos of the Bombay Municipal Corporation Act, an undertaking called the Bombay Electric Supply atid Transport Undertaking. The affairs of the said Undertaking 1!fe managed by a committee called the Bombay Electric Supply and Transport Committee, as per the provisioos of the Bombay Municipal Corporation Act. The workman, Shri U. R. Naik, was employed as Assistant Fitter in the Transportation Engineering Department at Dadar workshop of the appellant. - Similarly, Shri E. Menezes was employed under the appellant -as Line Mechanic.\n\nIt is comm.on ground that on July 18, 1969, when the sub-inspector\n\nMUNIC. CORP. v. B.E.S.T. WORKERS (Vaidialingam, J.) 287\n\nof police attached to the V.P. Road Police Station, was on petrol duty with his other staff, at about 9.30 P.M., he crune across Shri U.R Naik along with another person, Kundaikar, and found each of them carrying a gunny bag in their hands. As the bags appeared to be rather very heavy, the movement of the said persons arose the suspicion of the police officials, who stopped the said persons and searched the bags. On a search of the bags, it was found that each bag contained 22 brass bearings. As Shri U. R. Naik and his companion, Kundaikar, were not able to offer any satisfactory explanation as to how they crune to be in possession of the articles found in the bags,_ they were taken into custody .. On further investigation and from the statement given by Shri Naik, it was found that the latter was an employee under the appellant as Assistant Fitter and thafthe birass bearings found in h~ possession had been removed from the appellant's workshop with the active help and cooperation of another employee, E. Menezes, who was at the material time employed under the appellant asa Line Mechanic.\n\nIn consequence, Shri E. Menezes was also arrested shortly thereafter. After further enquiries, the brass bearings were identified by the concerned officers as properties belonging to the appellant. Ultimately on July 20, 1969, the appellant lodged a complained o{ theft against the two workmen, U. R. Naik and E. Menezes.\n\nThe appellant also charge-sheeted the two workmen on 18 / 19th August, 1969. Shri U. R. Naik was charge-sheeted under Standing Order 20(C) for 'fraud or dishonesty in connection with the business of the Undertaking'. Shri E. Menezes was chargesheeted under Standing Order 20(C) and Standing Order 20(1) for having committed an act 'subversive of discipline'.\n\nAn enquiry was conducted by Shri Talpade, Assistant Labour Officer (Transportation) of the appellant. At first it was a common enquiry against both the workmen in which the evidence of the police officers and certain officers of the appellant were examined. Later on, the enquiry was separated against each employee and further witnesses, both on behalf of the appellant as well as the workmen concerned, were examined. The Enquiry Officer found Shri Naik guilty of the offence with whiCh he was charged; and it was found that the offence proved against this workman was of a very grave and serious nature ailld as such the workman was not a fit person to be retained in service.\n\nOn this finding, n order dismissing Shri Naik, Assistant Fitter, from the servi~ of the appellaJ!t was passed on February 11, 1970.\n\nAn appeal by Shri Naik to the Executive Engineer and a further appeal to the Assistnt General Manager were all dismissed. Similarly, Shri E. Menezes was also found gt1ilty of tlie offences with which he was charged. It was further found that as the offences proved against the workman were of a grave and serious nature, he was not a fit person to be retained\n\nin the services of the appellant. Accordingly, an order dismissing\n\nShri E. Menezes from service was passed on March 18, 1970. The appeals filed by this workman to the Exe<; utive Engineer and the A>sistant General Manager proved of no avail.\n\nShri Naik sent to the appellant an approach notice, as required by the Act, on June 6, 1970, but without any avail.\n\nSimilarly,.\n\nShri Menezes also sent an approach notice on July 31, 1970, but without any avail. Shri Naik filed application No. 553 of 1970 before the Fifth Labour Court at Bombay challenging the order of the aope!lant dismissing him from service on various grounds.\n\nHe attacked also the Domestic Enquiry that was held, as illegal and improper and the finding recorded therein as perverse.\n\nHe prayed for setting aside the order dated February 11, 1970, and for being reinstated in service with full back wages.\n\nShri E.\n\nMenezes filed application No. 554 of 1970 tefore the same court praying for similar reliefs in respect of the order of dismissal passed ugainst him on March 18, 1970. He also attacked the order and the enquiry proceedings on the grounds relied on by Shri Naik.\n\nThe two applications were filed under section 78 and 79 of the Act.\n\nBoth the applications were heard together by the Labour Court.\n\nEvidence also was adduced by the appellant justifying the action taken against the two workmen.\n\nOne of the grounds cf. attack against the orders of dismissal was that they were illegal and void, as they have been passed for fault or mis-conduct committed l)y the employees, which came to the notice of rthe employer more than six months prior to the date of the orders. To meet this contention, the appellant adduced evidence before the Labour Court explaining the circumstances that lead to the orders of dismissal being passed beyond the period of six months. The evidence was to the effect that though the enquiry proceedings had commenced within a short time, nevertheless they had to be postponed from time to time because the Union representing the workmen was not ready on certain days and also because of the postpone ment of the enquiry due to the sickness of the employees concern ed. Another reason given by the appellant was that the enquiry had to be postponed from time to time as the sub.inspector of police, who investigated the complailllt of theft, was not available for giving evidence.\n\nThe Labour Court rejected almost all the contentions on facts raised by the workmen regarding the legality and propriety of the enquiry proceedings. The findings of the Labour Court in this regard are ::-\n\nThat the enquiry has been conducted by a compepetent authority and thi!t the workmen were given full\n\nMUNIC. CORP. v. B.B.S.T. WORKERS (Vaidialingam, J.) 28&\n\nand adequate opportunity to .place their evidence and to examine witnesses on their behalf. The Enquiry Officer was justified from the evidence on record in coming to the conclusion that the workmen are guilty of mis-conduct under Standing Order No. 20( c). The findings recorded by the domestic tribunal are based on the evidence on record and that the conclusions arrived at are just, legal and proper. The criticism of the Union that the finding arrived at by the Domestic Tribunal was ]2erverse has to be rejected. The two workmen haye failed to establish any case under section 78(1 )(A) (a)(i) of the .A.cJ. ·\n\nRegarding the contention raised by tlie Union on behalf of the workmen that the orders of dismissal are illegal, as having been passed after six months from the date of , the notice of the misconduct, the Labour Court held that the provisions of section 78(l)(D) are mandatory and that the time limi.t of six months D specified in section 78(l)(D)(i) of .the Act cannot be enl.arged by the Labour Court .. The Labour Coui:, t found support for this view in the Division Bench judgment of the Madhya Pradesh High Court in Raipur Cooperative Central Bank, Ltd.; and another\n\nv. State Industrial Court, Indore and others('). It was pressed by the appellant before the Labour Court that the delay in passing\n\nE the orders of dismissal was caused due to the adjournments b, eing granted to the Union because of the illness of the workmen concerned or due to the inability, for other reasons, of the workmen to be present. Another reason given by the appellant .was that the sub-inspector of police, who investigated the offence of theft, was not available for some time to give evidence before the Enquiry Officer. In view of these circumstances, the plea of the F appellant was that the relevant provisions will have IQ be construed not as mandatory but as only enabling and discretionary powers of the Labo.ur Court which have to be exercised having due regard to all the attendant circumstances. The Labour Court in coni dering this plea of the appi; llant held that the delay in passing the\n\nG orders was caused in view of the circumstances relied on the management; and as the delay had been caused due to circµmstances beyond the control of the appellant, this was a fit case for condoning the delay if in Jaw the court had the rower to do so.\n\nThe Labour Court, however, held that the relevant provisions are mandatory and it hence has no power to condone the delay, e.ven though the circumstances warranted such condonation in this case.\n\nH In this view, the Labour Court held that as the orders. of dismissal have not been passed within six months of the mis-conduct coming\n\n(I) [1963] (t) L.L.J. 790.\n\nto the notice of the employer, they are illegal and have to be set aside under section 78(l)(O)(i) of the Act.\n\nThe Labour Court then considered the relief to be granted to the two workmen. It held that as the offence for which tb, e two workmen were dismissed, was Qi a very serious nature entailing loss of confidence of the employer in. the employee, reinstatement should not be ordered.\n\nThe Labour Court, therefore, directed the appellant to pay each of the workmen his back wages from die date of dismissal till the date of the order and also, in addition. to pay compensation in the sum of Rs. 1,500/ -. In the result, the two applications jiled by the workmen were ordered grau\\ing them relief of back wages and compensaltion. Civil Appeal No. 1774 of 1971 is ag_ainst the order passed in application No. 553 of 1.970 and Civil A:gpeal No. 1775 of 1971 is against the order passd in application No. 5.54 of 1970.\n\nThe learned Additional Solicitor General very strenuously attacked the reasoning of the Lab'our Court when rt held that the provisions of section 78(1)(0) are mandatory. His contentions in this regard are as follows :-\n\nThe subject matter and t)le extent of jurisdiction of the Labour Court are provided for under section 7 8 ( 1 )(A) of the Act. Section 78 ( 1 )(O) of the Act merely makes provisions regarding the powers which a Labour Court may exercise in determining the propriety or legality of orders under section 7 8 ( 1 )(A) of the Act.\n\nThe provisions of section 78(1)(0) are only enabling or discretionary; in that the Labour Court is not bound to exercise the powers contained in that section. They do 11101 compel a Labour Court to pass an order in terms of section 78(1) (0) (a) or (b), even though the _Labour Court is convinced that the reasons for the delay in passing the orr:Ier of dismissal are entirely beyond the control of a;11 employer. lnasm)lch as in this case the Labour Court has accepted the reasons given for the delay, the decision of the Labour Court setting aside the order of dismissal is illegal and not justified. The object of section 78 ( 1 )(O)(i) is only to emphasise that an employer should act diligently and with all possilile speed and without !aches in the matter of taking action for misconduct against an employee and passing suitable orders.\n\nMr. S. V. Gupte, learned counsel for the Union fil!Pported the view of the Labour Court and urged that the word, s of segtion 78(1)(0)(i) are clear and specific. The said sub-clause leaves no room for doubt. The sub-clause is quite clear that once it is found that the orders are passed by a management inore than six months from the .date when the fault or misconduct committed by an employee came to its notice, the action of the employer is illegal. Without anything more, the counsel urged when once it\n\nMUNIC. CORP. v. B.E.S, T, WORKERS (Vaidialingam, !.) 291\n\nis found, as in this case, !hat tl).e orders of dismissal were passed after six months, as provided in 'the said sub-clause, there is no other alternative for the Labour Court but to set aside the orders of dismissal. He further pointed out that the legislature has left no discretion in the Labour Court to embark upon an enquiry whether the management in a particular case had sufficient reasons for not complying with 'the mandatory period of six months, as provided in the said sub-clause; The only discretion left to the Latl:lur Court is regarding the nature of the relief to be granted either un'ler (a) or (b) of section 78(1)(0},\n\nIn order to appreciate the contentions of counsel on both sides, it is necessary to refer to the material provisions of the Act. The Act, as its preamble shows, has been enacted to provide for the regulation of the relations of employers and e!llployees in certain matters, to consolidate and amen4 the law relatini. to the settlement of industrial disputes and to provide for certain other purposes.\n\nChapter XII, in which the group of sections 77 to 86 occur, deals with Labour Courts, their territorial jurisdicti9n, their powers, commencement of proceedings before the said Courts, etc. Though we are concerned with the interpretation of section 78(1)(0), in order to appreciate the context in which it occurs, it is necessary to refer to the entire section. Section 7 8 runs as follows :- 78 (1) A. Labour Court shall have power to decide-\n\n(a) disputes regarding-\n\n(i) the propriety or legality of an order passed by an employer acting or purpoting to act under the standing . orders;\n\n(ii) the application and interpretation of standing orders;\n\n(iii) any change made by an employer or desired by an employee in respect cf an industrial matter specified in Schedule Ill (except item ( 5) thereof and matters arising out of such change;\n\n(b) industrial disputes-\n\n(i) referred to it under section 71 or 72;\n\n(ii) in respect of which it is appointed as the arbitrator by a submission; ( c) whether a strike, lock-out, closure, stoppage or any change is illegal under this Act;\n\nB. try offences punishable under this Act and where the payment of compensation on conviction for an offence is provided for, determine the compensation and order its payment;\n\nC. require any employer to-\n\n(a) withdraw any change which is held by it to be illegal, or withdraw temporarily any change the legality of -which is a matter of issue in y proceeding pending final decision, or .\n\n(b) carry out any change provided st1ch change is a matter in issue in any proceeding before jt under this A.ct.\n\nD. require an employer, where it finds that the ordeuif\n\ndismissal, discharge, removal, retrenchment, termination of service 9r suspension of an employee made by the employer,- C ( i) was for fault or misconduct committed by the employee which came to the notice of. the employer more than six months prior to the date of such order_; or ·\n\n(ii) was in contravention of any of the provisions oi.\n\nI> any law, or of any standing order in force applicable to such employee, or\n\n(iii) was otherwiSe improper or illegal,\n\n(a) to reinstate the employee forthwith or by a date specified by it .in this behalf and pay him wages for the period of beginning on the date of such order of dismissal, discharge, reJllOVal, retrenchment, termination of service or suspension, as the case ay be, and ending on the date on which the Labour Court order& his reinstatement or on the date of .the reinstatement, whichevei: is later, or\n\n(b) to pay to the employee in addition to wages being wages for the period commencing on the date of his dislnis.W, dischar~. removal,\n\nretrenchment or termination of service and ending on the date on which the Laj>our Court orders such payment, such sum not exceeding four ihousand rupees by way of COQlilOllSlltion,. regard W to loss of ellt l!lld ilify fl..~ suitable emplo:yment thereafter.\n\n(2) Every affeDQe pllll, isha\\lle Mr tbis AJ; t, $hlill be triod. by -the <Aurt \"oWll; li!l the lOl; ll. 1, irita of whose jurisdiction it was committed,\n\nMUNIC. CORP. v. B.E.S.T. WORKERS (Vaidiali111am, J.) 293-\n\nExplanation:-A dispute falling under clause (a) of paragraph A of sub-section ( 1 ) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section ( 4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso.\n\nClause (D) of section 78(1) was introdu11ed in the Act of' Maharashtra by Act 22 of 1965. The said amending Act introduced not only clause (D) btit also made changes in paragraphs.\n\n(A) and (C) of section 78. The statement of objects and reasons to the amending Act shows that the additional provisions, which were sought to be incorporated . in the. Act, were made to enlarge the powers of the Labour Courts under section 78. It is further seen from the statement of objects and reasons that \\he Labour Court was being empowered 'to require an employer to reinstate an employee with full back .wages and compensat!on not exceeding Rs. 2,500/-.... if the employee was dismissed, discharged, etc.'. It may be noted that in th\\' amendment, as now finally made, under clause (b:) the maximum compensation has been fixed at Rs. 4,000/-. The statement of objects and reasons amply demonstrates that and by introducing paragraph (D) in section 78'(1}, the legislature was only seeking to arm the Laboµr Court with further and more effective powers to grant suitable relief.\n\nA reading of section 78 as a whole leaves the impression in our minds that the legislature wanted the provisions to be a com• prehensive one. It .contains all the powers of the Labour Court in the matter of all disputes mentioned therein and it also gives jurisdiction to punish certain offences under the Act. The scheme of section 78 ( 1) appears to be that a Labour Court has power to decide all the disputes covered by paragraph (A). Paragraph ( B) gives the Labour Court power to try offences punishable under the Act and cognizance Of such offences can only be taken under section 82. Paragraph (C) and (D) set out what reliefs the Labour Courts are empowered to give including directions as may be found necessary in that behalf. Another provision, which G has to be taken note of, i$ section 73 of the Employees' State Insurance Act, 1948, whic4 is as follows :-\n\nE, mployer not to dismiss or punish emol<>yee during . period of sickness, etc.-( l) No employer\" sliaii dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness bed or maternity benefit, nor shall he, except $8 provided undtr the regulations, dismiss, dg~ or reduce or otherwise punish aa employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sicknes.s or is absent from work as a result of illness duly certified in accordance with the regulations to arise out_ of the pregnancy or confinement rendering the employee unfit for work.\n\n(2) No notice of dismissal or discharge or reduction given to an employee during the period specified in subsection ( 1 ) shall be valid or operative.\n\nThis provision clearly places an embargo upon the powers of an employer to dismiss, discharge or otherwise punish an employee in the circumstances mentioned therein. For example, if an employee is under medical treatment for sickness or is in receipt of sickness benefit or maternity benefit, no order of dismissal or punishment can be passed agains.t suc.!i an employee. That\" means even if an employer intends to take disciplinary action for any misconduct, he cannot pass ay orders of punishm~_nt during the periods mentioned in the sectlon.\n\nFor instance, if an enquiry regarding the misconduct of an employee had been conducted and he had been found guilty even within the period of six months, as contemplated under section 78(1)(D)(i), and if the employee comes under the proteotion of section 73 of Employees' State Insurance Act, 1948, the employer can pass no orders of punishment. That means the employer will be placed in a dilemma. If he passes an order of dismissal in the circumstances mentioned under section 73 of the Employees' State Insurance Act, that order is invalid and inoperative. But if he postpones as hy is bound to do under section 73, and passes the order, after the employee ceases to be under any of the disabilities mentioned in the said section, six months from the date of the misconduct coming to the natice of the employer would have elapsed.\n\nJin such a case, the order will be struck down under section 78 ( 1) (D)(i) if the interpretation contended for by the Union is accepted. Therefore. it is necessary that these provisions will have to be read harmoniously so as to avoid a conflict between the two enactments.\n\n1here can be no controversy that an employee i~ ntitled to a fair and reasonable op_portunity of pleading to the charge for \\\\:'.hich he may be tried by the Domestic Tribiunaj. He must have a right to ~-ross-examine the witnesses produced for the management and also to adduce evidence on his behalf.\n\nIt may be that on certain occasions, the employee himself may seek an adjournment or postponement of the enquiry, either on the ground of his personal incony:enience due to sickness or otherwise or due to jhe inabiJiity of his witnesses to be presont. .. Ii the employer without\n\nany justification refuses such a reasonable request an_d proceeds with the enquiry, those proceedings will have to be set aside by\n\nMUNIC. CORP. v. B.E.S.T. WORKERS (Vaidialingam, !.) 295\n\nthe Labour Court or the Industrial Tribunal concerned on the ground that there has been a violation of the priniples of tural justice; in that the workman )).ad no reasqnable opportunity to defend the charge against him. H the employer, 1!S he is ~Jund to do, grants a reasonable adjournment to enal?le the workm3111 o be present or to produce witnesses, it !llay be that in certain cases, at least by the time the enquiry is complete.and ordes passed, the period of six months would have elapsed. Does it mean tliat when orders of punis!unent for rniscQDduct 3!e passed by an employer after holding a proper and fair enqwry, those orders will have to be set aside, only on the ground that on the day when they were passed, the period of six month§ had already_ expired ? If the yiew of the Labour Court is correct, the position will be that even though very serious miscQllduct is held to be proved against an employee andJ.1e .q.ot deserve to be retained in service, nevertheless the order of dismissal will be §traightaway set aside on the sole ground that the period of six months. has. expired.\n\nThe employee will thim straightaway bet black into\n\nD service, howsver undesirable he may be. Again an employee, knowing well that once orders are passed after the expiry of six. months, they will be straightawav set aside by the J., abour Court,\n\nwill attempt to protract the proceedings before the Enquiry Officer on some ground or other. Do all these things cond_uce to the maintaining of a proper relationship between an emp)oyer and an employee, as is envisaged under the Act ?' We have indicated broadly several aspects which have .to be borne in mind in considering the question. None of these matters have been either adverted to or taken into consideration by the La!Wur Court in . the present case.\n\nThe scheme of the Act has been considered by this Court in another context in M/s. Chhotabhai lethabhai Patel and Co., v.\n\nF The Industrial Court Maharashtra, Nagpur Bench, Nagpur and I others (') and we do not propose to cover the ground over again, But it is to be emphasised that, as mentioned by us earlier, the scheme of section 78 (!) is that a Labour Court is to have power to decide all the disputes covered by paragraph (A). Paragraph (B), as pointed out, gives the Labour Court the power to try G offences punishable under the Act. Paraiµ-aphs (C) and (D) set\n\n1 out the nature of reliefs which the Labour Courts are em~·\n\nto grant including directions, as may be fo11111d necessary in that\n\nalf. The material part of section 78(1)(D) is to be read as follows :-\n\n\"A Labour Court shali have power to require an employer, there it finds that the orders of dismissal. discharge, removal, retrenchment, termination of service or suspension of an employee made by the emp@yer, was\n\n(I) A.I.R. 1972 S.C. 1268.\n\nfor fault or misconduct committed by .the employee which came to the notice of the employer more than six months prior to the date of such order; ....... .\n\n(a) to reinstate the employee forthwith or by a date specified by it in this behalf and Qay him wages for the period beginning on the date of such order of dismissal, discharge, removal, retrenchment, termination of service or SUSJ?ension, as the case may be, and ending on the date on which the Labour Court, orders his re-instatement or on the date of his reinstatement, whichever is later, or\n\n(b) to pay to the employee in.addition to wages being wages for the period commencing on. the date of his dismissal, discharge, removal, retrenchment or termination of service and ending on the date on which the Labour Court orders such payment, such sum not exceeding four thousand rupees by way of compensation, regard . being had to loss of employment and possibility of getting suitable employment thereafter\".\n\nMuch emphasis has been laid by Mr. Gupte that the expression used iJn the opening words of section 78 (1) is 'shall' and that there is no indication in suli-clause (i) of clause (D) enabling a Labour Court to take into account any other extraneous matters.\n\nAccording to the learned counsel the use of the expression •sblin'\n\ncoupled with the clear wording of sub-clause (i) of Clause (D), clearly shows that the provisions are mandatory and not directory.\n\nIt must be stated that a very superficial reading of sub-clause (i) of clause (D) may support the contention of Mr. Gupte .. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to served by the Act in question. It cannot be doubted that for the purpose oi. deciding whether reinstatement with back wages has to be ordered or whether payment of compensation, in addition to back wages, without reinstatement has to be ordered, the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct alleged on the part of the employee as also the nature of contravention of any provision of law or standing order, If the Labour Coutt was bound to take into account all these circumstances to consider what type of relief has to be granted, we fail to see why the Labour Court is not\n\nMUNJC. CORP. v. B.E.S.T, WORKERS (Vaidialingam, ].) 297\n\nentitled to consider the circwmtances which Jed t.he management to the passing of the orders more than six months prior to the misconduct coming to the notice of an employer. In our opinion,\n\nit cmmot be the object of the Act that notwithstanding the fact that the wottman, woo has been found guilty in a proper domestic C>.t1quiry and panished for such misconduct, has to be given relief\n\neither by way of reinstatement with back wages or compensation and back wages without reinstatement, when once he has shown that the order of punishment was passed beyond the period ol six months referred to in section 78(1) (D)(i). , Such a positian is not warranted by the statute. Nor will it be conducive to indusc trial peace and the cordial relationship that should exist between an employer and an employee.\n\nIt should not be missed 1that ¢be opening words of sectian 78 ( l ) are 'A Labour Court shall have power'. We have already pointed out that the effect of section 78 (1) is that the Labour Court shall have the power to decide the types of disputes mentioned therein and it has also the power to grant the reliefs referred to in paragraphs (C) and (D). That does not mean that when once the Labour Court finds that an order of punishment has been p8$Cd beyond the period of six months, it has to straightaway set aside that order irrespective of the reasons which caused the dei; ly in passing thase orders, The fact that the section has conferred certain powers, does not mean that the Labour Coyrt must of necessity and Under all circumstan~ grant the reliefs which it has the power to grant It is a well established proposition that\n\nthe power to grant a certain relief includes obviously the power of refusing that relief. Authority for this proposition is to be found in Ebrahim Abbobakar and Another v. Custodian General of Propertye). It may be that if an employer has passed an order of punishment beyond the period of six months and if it is found that he has no satisfactory explanation for the delay or if he has not n vigilant and active in initiating disciplinary action and passing suitable orders, the Labour Court may be justified in straightaway quashing the orders on the ground that they have been passed beyond the period of six months. - H, on the other hand, as in the case before us, an employer has been vigilant in G initiating disciplinary proceedings and has satjsfied the Labour Court about the reasons for the dlay jn passing the orders of\n\npunishment, the Labour Court is not justified in setting aside the orders solely on the ground that the period of six months has expitcd. ·\n\nH There is a very elaborate discussion by this Court in Tlze Stale of Uttar Pradesh and Others v. Babu Ram. U padhya(') regard ing the various princ1ple5 that have to borne In mind in dlcid-\n\n(1) [1952) S.C.R. 696.\n\n(2) [1961) 2 S.C.R. 679.\n\ning whether the use of the word 'shall' in a statute makes the provision mandatory or directory.\n\nIt has_ been emphasised that for\n\nu~-certaining the real intention of the legislature the court, among other things, may consider the nature and the design of the statute, the consequences which would follow from con11truing it one way or other and whether the object of the legislation will be defeated or furthered by a particular construction. The question :whether\n\nan award of an Industrail Tribunal ceases to be effective due to the .non-publication of the same by the appropriate Government within a period of thirty days from the date of its receipt under section 17 (I) of the Industrial Disputes Act, 194 7, has been considered by this Court in The Remington Rand of India Ltd v.\n\nThe workmen (') . Section 17 (! ) , omitting the unnecessary parts, reads as follows :-\n\n\" ..... _every a.rbitration award and every award of a Labour Comt, Tribunal or National Tribunal shall. within a period of thiny days from the date of its receipt by the appropriate Government, published. in such manner as the appropriate Government thinks fit\". l t may be noted that the expression used is 'shall'. The question that arose for consideration before this Coun was whether the above provision was mandatory or directory.\n\nThis Court held that the provision as 'to time in the above section is merely directory and not mandatory, and that the limit of time has been fixed only as showing that the publication of the award ought not to be held up. It was further held that the publication of the award beyond the time mentioned in the section does not render the award invalid. The learned Solicitor invited our attention to the decision of the Coun of Appeal in .Driscoll v. Church Commissioners for England('). In that decision the Court had to construe section 84 of Law of Property Act 1925, which provided for the au!hority concerned on being satisfied about the circumstances mentioned in the said section, wholly or partially discharge or modify any restriction. The conferment of power on the authority was. in these terms :- ''The au tbority . - . . . . shall. . . . have power from time to time on the application of any person interested . . .... by order wholly or particularly to discharge. or modify any such restriction on ing satisfied .... \".\n\nThough it was contended that if the necessary circwnstances envisaged by the section are established the authority has no alternative but to order modification, the Conn of Apoeal rejected that contention and held that the section does give a discretion to the Tribunal whether to modify the restritltion at all. This decision, in our opinion, is quite apposite to lhe matter on hand.\n\n(I) [1968! I S.C.R. 164.\n\n(2) [19S7Ji RB.330\n\nMANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, /.) 299\n\nA Having due regard to the various aspects discussed above, we are of the opinion that the provisions contained in section 78 ( 1) (D) (i) are not mandatory but only directory.\n\nThe Labour Court will certainly have power to give relief to an.employee if an order of dismissal, etc. is passed by the employer after the expiry of six months from the date when the misconduct came to the notice of B the employer provided the employer has not been diligent in initiating disciplinary proceedings and if he is not able to offer satisfactory and adequate reasons for the delay in passing the! orders imposing punishment. Tue provision only emphasises that an employer should illl vigilant in taking disciplinary action against an employee for misconduct, once the said misconduct has come c to his notice and that, as far as possible, the proceedings including the final orders imposing punishment must all be completed within' a period of six months. This will be the normal rule. Such an interpretation does not impinge upon either the rights of 1111 em! ployer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry -conducted against him. If the!\n\nD employer is able to satisfy a Tribunal about the reasons for not being able to pass the order imposing punishment within the period of six months, the Tribunal has no power to set aside the order merely on the ground that the period of six months has elapsed.\n\nThe Labour Court, in the case before us, has proceeded on the basis that the provision in section 78(t)(D)(i) is a period E of limitation prescribed the statute which cannot be extended or enlarged by the Court. This approach, in our opinion, is erroneous. There is no question of any period of limitation provided by the said provision; :nor does the question of extending or enlarging the period arises in this case. The whole question is whether the Labour Court on whom certain powers are conferred, F should exercise those powers or not. The power conferred on the Labour Court will have to be exercised having due regard to the various other circumstances; such as whether the employer has shown sufficient cause for not passing the orders within the period of six months. It is significant to note that there is no such provision in the Industrial Disputes Act. We are also informed that\n\n G the Act applies only to certain industries and all the other industries are governed by the Industrial Disputes Act. It will be anomalous to hold that an order passed under the Act beyond the period of six months is illegal and a similar order passed. after a proper and fair enquiry, though beyond six months, will be legal and valid u:nder the Industrial Disputes Act.\n\nWe have already referred to H section 73 of the Employees' State Insurance Act and the prohibition against an employer to pass orders of punishment under the circumstances mentioned therein. The interpretation placed by us on the releva:nt provision will steer clear of all anomalies and -L 796Sup.C. 1./73\n\nwill also be in accordance with the object and purpose of the Act which is to regulate the relationship of the employer and the employee. Before we close the discussion on this aspect, it is necessary to refer to the decision of the Madhya Pradesh High Court in Raipur Cooperative Central Bank, Ltd., and another v. State Industrial Court, Indore, and others('). We have already referred to the fact that the Labour Court has relied on this decision as supporting its view. The said High Court had to consider the provisions of sub-section (3) of section 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, hereinafter referred to as the Berar Act.\n\nThe said Berar Act was enacted to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. Section 16 dealt with Reference of disputes to Labour Commissioner.\n\nSub-section (I) provided that powers can be conferred on a Labour Commissioner by the State Government by notification to decide an Industrial dispute etc. A right was conferred by sub-section (2) on an employee working in an industry, to which the notific:rtion applied, to invoke the jurisdiction of the Labour Commissioner for granting reinstate ment and payment of compensation. The said sub-section further provided that such an application for this purpose had to be made by an employee within six months from the date of dismissal, etc.\n\nThe material part of sub-section ( 3) was as follows ·:-\n\n\"On receipt of such application, if the Labour Commissioner after such enquiry as may be prescribed, finds that the dismissal, discharge, removal or suspension was in contravention of any of the provisions of this Act or in contravention of a standing order made or sanctioned under this Act or was for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge, removal or suspension, he may direct. ..... \".\n\nThe reliefs that could be granted were substantially in the same terms as in paragraph (D) of the Aot, but in sub-section (3) of section 16 of the Berar Act there is no provision regarding the fault or misconduct comin~ to the notice of the employer, as in G clause (i) of paragraph (D) of the Act. From the judgment of the Madhya Pradesh High Court, we find that a workman was dismissed for misconduct on August 23, 1956. The allegations of misconduct related to emb\\ezzlement of three sums of money.\n\nThe last item of embezzlement was on June 28, 1955,, Jhe Lbour\n\nCommissioner, whose jurisdiction was invoked by the workman, ff took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditor's report was received and hence the order of dismissal had been properly passed within six r\n\nMUNIC. CORP, v. B.E.S.T. WORKERS (Vaidialingam, J.)30 I\n\nmonths from the date of knowiedge. On a revision being filed by the workman the State Industrial Court reversed the decision of the Labour Commissioner and set aside the order of dismissal holding that the question of knowledge does . not come into the picture in view of the clear terms o' sub-section ( 3). The employer challenged this decision before the High Court under Articles 226 and 227 of the Constitution. The only contention that was raised before the High Court, as is seen from the judgment, was that section 16 ( 3) should be liberally construed by allowing the management to estabilish that they obtained knowledge of the embezzlement only within a period of six months prior to passing the order of dismissal.\n\nThe High Court rejected this contention on the ground that the statute is clear a.nd that an employer cannot be permitted to put forward their own inaction, in defence.\n\nAnother reason given by the High Court for rejecting this contention was that ithe statute has prescribed a period of limitation for determining the services of a delinquent employee as a measure of punishment and that such a period of limitation cannot be enlarged or extended biy a court. The contention that has been placed\n\nbefore us on behalf of the appellant regarding the interpretation to be placed on clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted section 16 ( 3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting section 78(1)(0) (i) of the Act should have been bbrne in mind in interpreting section 16 ( 3) of the Berar Act also.\n\nFor instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to tlte date of passing the order. S\\milarly, an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar ci.rcumstances ave not been considered by the High Court. The view of the High Court that the provision in section 16(3) is a period ?~ limitation is erroneous. As .we are of the opinion that the dec1s10n of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.\n\nAs pointed out by us earlier, the Latlur Court has upheld all the contetions oJ' the appellant on facts. In fact, as pointed out already, 11 has also held that if i'I had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same.\n\nThe appellant has properly explained the\n\ndelay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpre tation placed by the Labour Court on section 78 ( 1 )(D) (i) is erroneous.\n\nAccordingly, w_e set aside the two orders granting relief to the workmen concerned. The appeals are in consequence allowed. There will be no order as to costs.\n\nS.N.C.\n\nAppeals allowed.", "total_entities": 115, "entities": [{"text": "MUNICIPAL CORPORATION OF GREATER BOMBAY", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF GREATER BOMBAY", "offset_not_found": false}}, {"text": "THE B.E.S.T. WORKERS' UNION", "label": "RESPONDENT", "start_char": 41, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "THE B.E.S.T. WORKERS UNION", "offset_not_found": false}}, {"text": "1973 {A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 82, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DuA", "label": "JUDGE", "start_char": 105, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Bombay Industrial Relations Act, 1946", "label": "STATUTE", "start_char": 145, "end_char": 182, "source": "regex", "metadata": {}}, {"text": "s. 78(l)(d)", "label": "PROVISION", "start_char": 184, "end_char": 195, "source": "regex", "metadata": {"linked_statute_text": "Bombay Industrial Relations Act, 1946", "statute": "Bombay Industrial Relations Act, 1946"}}, {"text": "Naik", "label": "OTHER_PERSON", "start_char": 1159, "end_char": 1163, "source": "ner", "metadata": {"in_sentence": "An inquiry was held by an officer of the appellant and after evidence by the police officers and others, the Enquiry Officer found Shri Naik guilty and an order of dismissal was passed on February 11, 1970."}}, {"text": "February 11, 1970", "label": "DATE", "start_char": 1211, "end_char": 1228, "source": "ner", "metadata": {"in_sentence": "An inquiry was held by an officer of the appellant and after evidence by the police officers and others, the Enquiry Officer found Shri Naik guilty and an order of dismissal was passed on February 11, 1970."}}, {"text": "5th Labour Court at Bombay", "label": "COURT", "start_char": 1398, "end_char": 1424, "source": "ner", "metadata": {"in_sentence": "Naik and the mcchan.ic thereafter, filed applications before the 5th Labour Court at Bombay challenging the order of dismissal on various grounds."}}, {"text": "s. 78(1)(d)(i)", "label": "PROVISION", "start_char": 1718, "end_char": 1732, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(1)(d)", "label": "PROVISION", "start_char": 2030, "end_char": 2041, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(1)", "label": "PROVISION", "start_char": 2110, "end_char": 2118, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(1)", "label": "PROVISION", "start_char": 2464, "end_char": 2472, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(1)(d)(i)", "label": "PROVISION", "start_char": 3512, "end_char": 3526, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(1)(d)(i)", "label": "PROVISION", "start_char": 3625, "end_char": 3639, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961] 2 S.C.R. 679", "label": "CASE_CITATION", "start_char": 4093, "end_char": 4112, "source": "regex", "metadata": {}}, {"text": "F. S. Nadman", "label": "OTHER_PERSON", "start_char": 4334, "end_char": 4346, "source": "ner", "metadata": {"in_sentence": "F. S. Nadman, Addi."}}, {"text": "Y. S. Chitale", "label": "LAWYER", "start_char": 4382, "end_char": 4395, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, Y. S. Chitale, D D. C. Shroff."}}, {"text": "D. C. Shroff", "label": "OTHER_PERSON", "start_char": 4399, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, Y. S. Chitale, D D. C. Shroff."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 4414, "end_char": 4425, "source": "ner", "metadata": {"in_sentence": "0."}}, {"text": "Bhuvanesh Kumari", "label": "LAWYER", "start_char": 4427, "end_char": 4443, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Bhuvanesh Kumari and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4448, "end_char": 4463, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Bhuvanesh Kumari and Ravinder Narain, for the appellant."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 4485, "end_char": 4496, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. B. Naik and K. Rajendra Choudhury, for the respondent.", "canonical_name": "S. V. Gupte"}}, {"text": "S. B. Naik", "label": "LAWYER", "start_char": 4498, "end_char": 4508, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. B. Naik and K. Rajendra Choudhury, for the respondent."}}, {"text": "K. Rajendra Choudhury", "label": "LAWYER", "start_char": 4513, "end_char": 4534, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. B. Naik and K. Rajendra Choudhury, for the respondent."}}, {"text": "VAID!ALINGAM", "label": "JUDGE", "start_char": 4601, "end_char": 4613, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAID!ALINGAM, J.-In these two appeals, by special leave the common question that arises for coosideration is the proper interpretation to be placed on section 78 (1 )(D) of the Bombay Industrial Relations Act 1946 (Bombay Act No.", "canonical_name": "VAID!ALINGAM"}}, {"text": "section 78", "label": "PROVISION", "start_char": 4752, "end_char": 4762, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Industrial Relations Act 1946", "label": "STATUTE", "start_char": 4778, "end_char": 4814, "source": "regex", "metadata": {}}, {"text": "Municipal Corporation of Greater Bombay", "label": "ORG", "start_char": 4919, "end_char": 4958, "source": "ner", "metadata": {"in_sentence": "The appellant in both the appeals, the Municipal Corporation of Greater Bombay, is a bOOy corporate coostituted under the Bombay Municipal Corporation Act 1888."}}, {"text": "OOy corporate coostituted under the Bombay Municipal Corporation Act 1888", "label": "STATUTE", "start_char": 4966, "end_char": 5039, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 5162, "end_char": 5168, "source": "ner", "metadata": {"in_sentence": "For the purposes of providing and operating motor transport and for supplying electricity to the consumers in the city d Bombay, the appellant has established under the provisioos of the Bombay Municipal Corporation Act, an undertaking called the Bombay Electric Supply atid Transport Undertaking."}}, {"text": "Bombay Electric Supply and Transport Committee", "label": "ORG", "start_char": 5414, "end_char": 5460, "source": "ner", "metadata": {"in_sentence": "The affairs of the said Undertaking 1!fe managed by a committee called the Bombay Electric Supply and Transport Committee, as per the provisioos of the Bombay Municipal Corporation Act."}}, {"text": "U. R. Naik", "label": "OTHER_PERSON", "start_char": 5543, "end_char": 5553, "source": "ner", "metadata": {"in_sentence": "The workman, Shri U. R. Naik, was employed as Assistant Fitter in the Transportation Engineering Department at Dadar workshop of the appellant. -", "canonical_name": "U. R. Naik"}}, {"text": "Dadar", "label": "GPE", "start_char": 5636, "end_char": 5641, "source": "ner", "metadata": {"in_sentence": "The workman, Shri U. R. Naik, was employed as Assistant Fitter in the Transportation Engineering Department at Dadar workshop of the appellant. -"}}, {"text": "E. Menezes", "label": "LAWYER", "start_char": 5687, "end_char": 5697, "source": "ner", "metadata": {"in_sentence": "Similarly, Shri E. Menezes was employed under the appellant -as Line Mechanic.", "canonical_name": "E.\n\nMenezes"}}, {"text": "U.R Naik", "label": "OTHER_PERSON", "start_char": 6010, "end_char": 6018, "source": "ner", "metadata": {"in_sentence": "v. B.E.S.T. WORKERS (Vaidialingam, J.) 287\n\nof police attached to the V.P. Road Police Station, was on petrol duty with his other staff, at about 9.30 P.M., he crune across Shri U.R Naik along with another person, Kundaikar, and found each of them carrying a gunny bag in their hands.", "canonical_name": "U. R. Naik"}}, {"text": "Kundaikar", "label": "OTHER_PERSON", "start_char": 6046, "end_char": 6055, "source": "ner", "metadata": {"in_sentence": "v. B.E.S.T. WORKERS (Vaidialingam, J.) 287\n\nof police attached to the V.P. Road Police Station, was on petrol duty with his other staff, at about 9.30 P.M., he crune across Shri U.R Naik along with another person, Kundaikar, and found each of them carrying a gunny bag in their hands."}}, {"text": "July 20, 1969", "label": "DATE", "start_char": 7195, "end_char": 7208, "source": "ner", "metadata": {"in_sentence": "Ultimately on July 20, 1969, the appellant lodged a complained o{ theft against the two workmen, U. R. Naik and E. Menezes."}}, {"text": "18 / 19th August, 1969", "label": "DATE", "start_char": 7359, "end_char": 7381, "source": "ner", "metadata": {"in_sentence": "The appellant also charge-sheeted the two workmen on 18 / 19th August, 1969."}}, {"text": "Talpade", "label": "OTHER_PERSON", "start_char": 7699, "end_char": 7706, "source": "ner", "metadata": {"in_sentence": "An enquiry was conducted by Shri Talpade, Assistant Labour Officer (Transportation) of the appellant."}}, {"text": "March 18, 1970", "label": "DATE", "start_char": 8952, "end_char": 8966, "source": "ner", "metadata": {"in_sentence": "Accordingly, an order dismissing\n\nShri E. Menezes from service was passed on March 18, 1970."}}, {"text": "June 6, 1970", "label": "DATE", "start_char": 9164, "end_char": 9176, "source": "ner", "metadata": {"in_sentence": "Shri Naik sent to the appellant an approach notice, as required by the Act, on June 6, 1970, but without any avail."}}, {"text": "Menezes", "label": "OTHER_PERSON", "start_char": 9220, "end_char": 9227, "source": "ner", "metadata": {"in_sentence": "Shri Menezes also sent an approach notice on July 31, 1970, but without any avail."}}, {"text": "July 31, 1970", "label": "DATE", "start_char": 9260, "end_char": 9273, "source": "ner", "metadata": {"in_sentence": "Shri Menezes also sent an approach notice on July 31, 1970, but without any avail."}}, {"text": "Fifth Labour Court at Bombay", "label": "COURT", "start_char": 9353, "end_char": 9381, "source": "ner", "metadata": {"in_sentence": "553 of 1970 before the Fifth Labour Court at Bombay challenging the order of the aope!lant dismissing him from service on various grounds."}}, {"text": "E.\n\nMenezes", "label": "LAWYER", "start_char": 9721, "end_char": 9732, "source": "ner", "metadata": {"in_sentence": "Shri E.\n\nMenezes filed application No.", "canonical_name": "E.\n\nMenezes"}}, {"text": "section 78 and 79", "label": "PROVISION", "start_char": 10025, "end_char": 10042, "source": "regex", "metadata": {"statute": null}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 11570, "end_char": 11582, "source": "ner", "metadata": {"in_sentence": "v. B.B.S.T. WORKERS (Vaidialingam, J.) 28&\n\nand adequate opportunity to .place their evidence and to examine witnesses on their behalf.", "canonical_name": "VAID!ALINGAM"}}, {"text": "section 78(1 )(A)", "label": "PROVISION", "start_char": 12168, "end_char": 12185, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(l)(D)", "label": "PROVISION", "start_char": 12456, "end_char": 12472, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(l)(D)(i)", "label": "PROVISION", "start_char": 12541, "end_char": 12560, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 12702, "end_char": 12727, "source": "ner", "metadata": {"in_sentence": "The two workmen haye failed to establish any case under section 78(1 )(A) (a)(i) of the .A.cJ. ·\n\nRegarding the contention raised by tlie Union on behalf of the workmen that the orders of dismissal are illegal, as having been passed after six months from the date of , the notice of the misconduct, the Labour Court held that the provisions of section 78(l)(D) are mandatory and that the time limi.t of six months D specified in section 78(l)(D)(i) of .the Act cannot be enl.arged by the Labour Court .. The Labour Coui:, t found support for this view in the Division Bench judgment of the Madhya Pradesh High Court in Raipur Cooperative Central Bank, Ltd.; and another\n\nv. State Industrial Court, Indore and others(')."}}, {"text": "section 78(l)(O)(i)", "label": "PROVISION", "start_char": 14396, "end_char": 14415, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)(0)", "label": "PROVISION", "start_char": 15377, "end_char": 15393, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 15553, "end_char": 15562, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 15586, "end_char": 15596, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 15753, "end_char": 15762, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)(0)", "label": "PROVISION", "start_char": 15805, "end_char": 15821, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)", "label": "PROVISION", "start_char": 16011, "end_char": 16024, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 16404, "end_char": 16414, "source": "regex", "metadata": {"statute": null}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 16635, "end_char": 16646, "source": "ner", "metadata": {"in_sentence": "Mr. S. V. Gupte, learned counsel for the Union fil!Pported the view of the Labour Court and urged that the word, s of segtion 78(1)(0)(i) are clear and specific.", "canonical_name": "S. V. Gupte"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 18600, "end_char": 18609, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 19001, "end_char": 19011, "source": "regex", "metadata": {"statute": null}}, {"text": "section 71", "label": "PROVISION", "start_char": 19132, "end_char": 19142, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 21541, "end_char": 21551, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)", "label": "PROVISION", "start_char": 21669, "end_char": 21682, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 21852, "end_char": 21862, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 22070, "end_char": 22080, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 22585, "end_char": 22595, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 22737, "end_char": 22747, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 23049, "end_char": 23059, "source": "regex", "metadata": {"statute": null}}, {"text": "section 82", "label": "PROVISION", "start_char": 23303, "end_char": 23313, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 23516, "end_char": 23526, "source": "regex", "metadata": {"statute": null}}, {"text": "State Insurance Act, 1948", "label": "STATUTE", "start_char": 23545, "end_char": 23570, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 78(1)(D)(i)", "label": "PROVISION", "start_char": 25141, "end_char": 25160, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 25212, "end_char": 25222, "source": "regex", "metadata": {"statute": null}}, {"text": "State Insurance Act, 1948", "label": "STATUTE", "start_char": 25237, "end_char": 25262, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 73", "label": "PROVISION", "start_char": 25436, "end_char": 25446, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "State Insurance Act", "label": "STATUTE", "start_char": 25465, "end_char": 25484, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 73", "label": "PROVISION", "start_char": 25572, "end_char": 25582, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act", "statute": "State Insurance Act"}}, {"text": "section 78", "label": "PROVISION", "start_char": 25853, "end_char": 25863, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act", "statute": "State Insurance Act"}}, {"text": "section 78", "label": "PROVISION", "start_char": 28984, "end_char": 28994, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)(D)", "label": "PROVISION", "start_char": 29386, "end_char": 29402, "source": "regex", "metadata": {"statute": null}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 30679, "end_char": 30684, "source": "ner", "metadata": {"in_sentence": "Much emphasis has been laid by Mr. Gupte that the expression used iJn the opening words of section 78 (1) is 'shall' and that there is no indication in suli-clause (i) of clause (D) enabling a Labour Court to take into account any other extraneous matters."}}, {"text": "section 78", "label": "PROVISION", "start_char": 30735, "end_char": 30745, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)", "label": "PROVISION", "start_char": 32771, "end_char": 32784, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 33130, "end_char": 33140, "source": "regex", "metadata": {"statute": null}}, {"text": "[1961) 2 S.C.R. 679", "label": "CASE_CITATION", "start_char": 35005, "end_char": 35024, "source": "regex", "metadata": {}}, {"text": "section 17", "label": "PROVISION", "start_char": 35689, "end_char": 35699, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 35711, "end_char": 35734, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 17", "label": "PROVISION", "start_char": 35834, "end_char": 35844, "source": "regex", "metadata": {"statute": null}}, {"text": "section 84", "label": "PROVISION", "start_char": 36875, "end_char": 36885, "source": "regex", "metadata": {"statute": null}}, {"text": "Law of Property Act 1925", "label": "STATUTE", "start_char": 36889, "end_char": 36913, "source": "regex", "metadata": {}}, {"text": "section 78", "label": "PROVISION", "start_char": 37980, "end_char": 37990, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(t)(D)(i)", "label": "PROVISION", "start_char": 39405, "end_char": 39424, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 40159, "end_char": 40182, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 40306, "end_char": 40329, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 40560, "end_char": 40583, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 73", "label": "PROVISION", "start_char": 40616, "end_char": 40626, "source": "regex", "metadata": {"linked_statute_text": "We are also informed that\n\n G the Act applies only to certain industries and all the other industries are governed by the Industrial Disputes Act", "statute": "We are also informed that\n\n G the Act applies only to certain industries and all the other industries are governed by the Industrial Disputes Act"}}, {"text": "State Insurance Act", "label": "STATUTE", "start_char": 40645, "end_char": 40664, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 16", "label": "PROVISION", "start_char": 41441, "end_char": 41451, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act", "statute": "State Insurance Act"}}, {"text": "Central Provinces and Berar Industrial Disputes Settlement Act, 1947", "label": "STATUTE", "start_char": 41459, "end_char": 41527, "source": "regex", "metadata": {}}, {"text": "Section 16", "label": "PROVISION", "start_char": 41762, "end_char": 41772, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces and Berar Industrial Disputes Settlement Act, 1947", "statute": "the Central Provinces and Berar Industrial Disputes Settlement Act, 1947"}}, {"text": "section 16", "label": "PROVISION", "start_char": 43031, "end_char": 43041, "source": "regex", "metadata": {"statute": null}}, {"text": "August 23, 1956", "label": "DATE", "start_char": 43308, "end_char": 43323, "source": "ner", "metadata": {"in_sentence": "From the judgment of the Madhya Pradesh High Court, we find that a workman was dismissed for misconduct on August 23, 1956."}}, {"text": "June 28, 1955", "label": "DATE", "start_char": 43442, "end_char": 43455, "source": "ner", "metadata": {"in_sentence": "The last item of embezzlement was on June 28, 1955,, Jhe Lbour\n\nCommissioner, whose jurisdiction was invoked by the workman, ff took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditor's report was received and hence the order of dismissal had been properly passed within six r\n\nMUNIC."}}, {"text": "Jhe Lbour", "label": "OTHER_PERSON", "start_char": 43458, "end_char": 43467, "source": "ner", "metadata": {"in_sentence": "The last item of embezzlement was on June 28, 1955,, Jhe Lbour\n\nCommissioner, whose jurisdiction was invoked by the workman, ff took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditor's report was received and hence the order of dismissal had been properly passed within six r\n\nMUNIC."}}, {"text": "April 9, 1956", "label": "DATE", "start_char": 43604, "end_char": 43617, "source": "ner", "metadata": {"in_sentence": "The last item of embezzlement was on June 28, 1955,, Jhe Lbour\n\nCommissioner, whose jurisdiction was invoked by the workman, ff took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditor's report was received and hence the order of dismissal had been properly passed within six r\n\nMUNIC."}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 44161, "end_char": 44181, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 44301, "end_char": 44311, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 45352, "end_char": 45362, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78(1)(0)", "label": "PROVISION", "start_char": 45535, "end_char": 45551, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 45614, "end_char": 45624, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(3)", "label": "PROVISION", "start_char": 46216, "end_char": 46229, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 47052, "end_char": 47062, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_303_312_EN", "year": 1973, "text": "MANAGEMENT OF HINDUSTAN STEEL LTD. v.\n\nTHE WORKMEN & ORS.\n\nJanuary 12, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.] Industrial Disputes Act 1947 Ss. 25 F(b) and 25 FFF-Notice of retrenchment-In case of closure of an undertaking s. 25FFF appue. and not s. 25F(b)-Undertaking, what is-Closure of part of business may amount to closure of undertaking within meaning of .9. :!SFFf\"->.\n\nPlea c.s to defect in noUce must be specific and precise.\n\nThe Hindusto:n Steel Ltd. undertook in 1960 a project called the Ranchi Housing Project. The project was completed in\n\n1966. After the compktion of the residuary work the services of certain employees including N were terminated. 'The relevant notice said that N could receive his retrenchment compensation from the cashier within two days from the date of termination of his employment subject to the production by him of. no demand certificates from the concerned branches mentioned in the notice. N pleaded before the Industrlal Tribunal inter alia that the notic, e did not comply with the terms of s. 25F(b) of the Industrial Disputes Act 1947, because the compeinsation was not paid immediately at the time of effecting the retrenchment. The infirmity in the notice being apparent on its face, in the opinion of the Tribunal, N was held entitled to be reinstated end also to his wages and other dues. The Tribunal further held that this plea though not expressly taken by N 'in his written statement was covered by the general grounds taken therein. Appeal against the award of the.\n\nTribun9} was filed by the Management of Hindustan Steel Ltd., by special leave granted by this Court. It was contended Oill behalf ot the appellant that the Section applicable to the case was not 25F(b) but 25FFF(2)· and the Tribunal erred in basing the award on the fofn1er section.\n\nHELD : (i) In the case of Harl Prasad Shiv Shankar Shukla, it was held by this Court that s. 25F was not intended by the leg!slature to be applicable to bona fide closure Of business. In 1957 s. 25FFF was inserted in order to give b, enefit of s. 25F to the retrenched workmen where an undertaking is closed down for \"any reason whatso~ ever\". According to sub-8.(2) of s. 25FFF it is quite clear that in case of closure of the categories of undertrutings as mentioned therei, n, no workman employed In those undertakings can claim compensation under cl. (b) of s. 25F. [310C-E)\n\nHarl Prasad Shiv Shankar Shukla v. A. D. Divekar, (1957) S.C.R. 121, referred to.\n\n(ii) The word undertaking as used in s. 25FFF seems to have been used in its ordinary sense connoting thereby any w<>rk, enterprise, pro- Ject or business undertaking. It is not intended to cover the tllltire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem jn law to be covered by this sub-section. The question has t<> be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the 9ppellant and it had a distinct beginning and an end. The Tribunal rightly held that QD the completion of the project the undertaking was cld down.\n\n[310G-311BJ\n\nWorkmen of the Indian Leaf Tobacco Development Co.\n\nLtd. v.\n\nManagement, [1969] 2 S.C.R. 282 and Parry & Co. Ltd. v. P. C. Lal, [1969] 2 S.C.R. 976. referred to.\n\n(iii) Under s. 25FFF(l) which creates statutory fiction. •.11 that N \\\\'as entitled to was notice and compensation in accordance with the provisions of s. 25F as if he had been retrenched.\n\nThe retrenchment notice given to him quite clearly complied with the requirement. [311EFl\n\n(iv} The Tribunal was in error in holding the general ground irl the written statement to cover the specific plea of infirmity of . the notice because of its being conditional.\n\nThe plea 'Should have been specific and precise so as to \"\"1able the appellant to meet it. [311F-Gl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 175 of\n\n1971. c\n\nAppeal by special leave from the Award dated July 20, 1970 oi the Industrial Tribunal, Bihar. Patna in-Reference No. 52 of 1969 published in the Bihar Gazette dated 28-10-1970.\n\nM. C. Setalvad, Santosh Chatterjee and G. S. Chatterjee, for the appellant. o Madan Mohan and Ram Das Chadha, for respondents Nos. 1 and 2.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.\n\nEmployees' Union, Ranchi :\n\n\"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?\n\nIf not, what relief is he entitled to ?\"\n\nAccording to the Written statement filed by the Management Shri R. Venkatesan Naidu, the workman concerned (hereinafter\n\nto be referred as Shri Naidu) was recruited to the work-charged G establishment of the Ranchi Housing Project undertaken in 1960 on a consolidated salary of Rs. 250/- p.m. He was recruited in March, 1960 and it was made clear to him tha!I the post was purely temporary subject to tennination with or without notice.\n\nShri Naidu joined duty on March 15, 1960 after accepting those condi?ons. He later applied for the post of Overseer in the same . H establishment oi the Ranchi Housing Project in response to an advertisement and an offer for his appointment as an Overseer ' was made to him on June 15, 1960, clearly stating that his\n\nMANAGEMENT HINDUSTAN STEEL v. WORKMEri (Dua, J.) 305\n\nappointment would continue upto Maroh 31, 1961 though it would be extended in case his services were to be required beyond tltat date.\n\nThis appointment was also stated to be purely temporary terminable at any time without assigning any reason and without giving any notice.\n\nShri Naidu assumed charge of the post of Overseer on June 20, 1960. The construction and the connecled residuary work rela'ting to the Ranchi Housing Project were over by the end of the year 1966 and it was decided to wind up this project and retrench 13 workmen employed in four categories with effect from December 31, 1966 after giving notices and paying compensation to the workmen concerned.\n\nThe services of three executives and two Overseers ( Shri Naidu\n\nand Shri Verghese) were retained for some time in order to finalise accounts and to carry on some residuary work in connection with the said project. The management tried to secure employment to those five persons in the sister units of the Hindustan Steel Ltd., or sister public under takings like Bokaro Steel Ltd., but without success.\n\nShri Naidu, it is state<l.. did not possess any basic qualifications laid down by Bokaro !Steel Ltd. 1he tenure of the posts held by these five persons was extended upto June 30, 1968. The departmental committee consisting of senior officers considered their cases for absorption in suitable posts in the Central Engineering and Design Bureau.\n\nAs Shri Naidu had read upto Class IX only and did not pos.sess any technical qualification he could not be taken in any concern. It was in these circumstances that according to the management Shri Naidu's services were retrenched with effect from the afternoon of June 22; 1963. The financial concurrence for the continuance of the Ranchi Housing Project (Residuary work) also expired on the same date with the result that it was not possil:lle any longer to retain Shri Naidu's services and his retrenchment was necessary. It was denied that big bosses of Hindustan Steel Ltd., did not like Shri Naidu because he had refused to oblige them whenever they made dishonest requests.\n\nShri Naidu's retrenchment was accordingly stated to be quite proper, justified and legal and the action taken qnite fair and bona fide.\n\nThere was thus no question of any unfair labour practice or victimisation of Shri Naidu.\n\nThe case on behalf of the workmen was represented biY the General Secrefarv of the Union. It was pleaded on behalf of the workmen that prior to joining industan Steel Ltd., Shri Naidu had been serving as a construction foreman in the Damodar Valley Corporation Ud., during the period 1950 to 1957 and that on Februarv 18, 1960 he applied to the Hindustan Steel Ltd.. tor. a technical post mentioning his ciualifications for. the\n\npost apphed for. He was interviewed and after testing his merits for the job of Works Supervisor he was offered the same on\n\nMarch 10, 1960. Later he was offered the job of an Overseer and he joined that post on May 20, 1960. He worked efficiently to A the satisfaction of all concerned but was served with a charge. sheet on June 10, 1964 on the ground that there was some short age of steel rods. After an enquiry he was found guilty and on the recommendation.s of the enquiry committee he was dismissed with effect from January 13, 1965. Shri Naidu approached the Presiding Officer, Labour Court, Ranchi under s. 25 Of the B Bihar Shops and Establishments Act, 1963 complaining 11gainst his dismissal and the Presiding Officer on April 13, 1966 held tho order of dismissal as unjustified and illegal and ordered his reinstatement.\n\nHe reaumed his duties on receipt ol the office order on 7 /10 May, 1966. But somo big bosses of the m11DagC'- ment were not happy on account of his reinstatement with the c result that he was again charge-sheeted on May 12, 1966 on the ground that he had falsely stated that he had passed the Senior cambridge Examination.\n\nShri Naidu filed a civil suit 1or a declaration that the proceedlnp laltfated by tho employer were\n\nmalll fide. But during the pcndcncy of that suit he was served with a retrenchment order dated JlllDe 29, 1968 purporting to 1*' D under s. 25F of the Industrial Disputes Act, 194 7 (hereinafter called the Act) which, according to Shri Naidu was malll fide and -unjustified.\n\nAccording to the Tribunal there was no controversy about the following facts : Shri Naidu had filed an application Ex. 1 on February 18, E 1960 with the Construction Engineer of the Hindustan Steel Dtd., for a technical post and he had mentioned therein that he had studied upto Senior Cambridge standard but had served for a period of 23 years in other concerns. On March 10, . 1960 he was offered the post of Works Supervisor on a consolidated salary of Rs. 250/ • p.m. in the work-charged blishm.ent of the Ranchi F Housing Project but it was made clear to him that the post was purely temporary 3illd subject to . tenillnation with or without' notice.\n\nIn respo!lse to this offer Shri Naidu submitted. joining report on March 15, .1960. On April 18, 1960 Shri Naidu applied for the post of an Overseer and mentionod in the column meant for the particulars of the examination passed \"Cambridge Senior\". By office order dated 14/15 JIJlle, 1960 he was offered G\n\nthe tcm.P.<>rary post Of Overseer on the terms and conditions men tioncd in that order. According_ to term S his appointment waS upto March 31, 1961 but it could be extcn<led beyond that date in case the company so desired. It was also mentioned that his appointment would 1*' purely temporary terminllblc. at any tiJne without any reason and without giving any notice. He was 8$ked to report for duty as soon as possible but not later than. June 30,\n\nMANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, 1.) 307\n\n1960. He joined as Overseer within the scheduled time.\n\nThe work o.f construction undertaken by '!he R8111chi Housing Project came to a clo8e by the end of the year 1966 with the result that 13 workmen were retrenched though Naidu was allowed to continue as an Overseer for finishing some residual work.\n\nThereafter; according ito the management the residual w9rk was completed and the Ranchi Housing Project wound up in 1968.\n\nShri Naidu having been rendered surplus notice Ex. 7 for his retrenchment was given because it was not possible to offer him any alternative employment in any other unit. His services were retrenched with effect from June 29, 1968. c According to the award the Ranchi Housing Project and the Maintenance Division of the Hindustan Steel Ltd., were separate departments the Housing Project being' a temporary project whereas the mainten811lce division was to be maintained throughout.\n\nBoth these departments were, however, controlled by the Central Engineering & Division Bureau. The award further held\n\nthat the management had decided to wind up the establishment of Ranchi Housing Project with effect from March 31, 1~68 and that serious attempts were made to absorb Shri Naidu but without success. The Ranchi Housing Project having been wound up the Management was fully justified in retrenching Shri Naidu.\n\nThe management was also held to have made genuine and bona fide efforts to absorb Shri. Naidu in other units but it did not succeed in its attempt. The plea of mala fides on the part of the. management in retrenching Shri Naidu was also repelled by the Tribunal. It was also observed that he had failed to substantiate that there was any unfair labour practice or victimisation.\n\nThe further point raised on behalf of Shri Naidu that the principle of \"first come last go\" or \"last come first go\" was not adhered to was also not accepted bti' the Tribunal. Shri Naidu's appointment being temporary terminable by the Company at any time without assigning any reason and without giving any notice was . held to be an agreement contrary to the said principle 81lld the provisions of s. 258 of the Act were held inapplicable. The submission on behalf of the management that it was for them to G decide from time to time the strength of labour required for that purpose was accepted and it was observed that the panduct of the management in closing one department and dividing its work\n\namont the other employees could not be reasonably characterised as IDlprc; iper or as amounting to an unfair labour practice.\n\nThe last point urged on behalf Of Shri Naidu was that the notice of retrenchment was not 1n accordance with the provisions of s. 25F f e At bec::use th~ retrencbmnt compensation Wl!S to e paid llllllled1ately at the time of effecting the retrenchment and\n\nrt could not be deferred.\n\nAccording to the notice Shri Naidu\n\nwas merely informed that he could receive the retrenchment compensation from the cashier within two dys from the date of terminati'ln of his employment and that 'this would also be subject to tJ, e production by him of no demand certificates from the concerned branches which were mentioned in the notice, .Ex. 7.\n\nThis plea prevailed with the Tribunal. After referring to certain decisions of this Court the Tribunal held that the notice was defective on the face of it because it did not comply with\n\ncl. (b) of s. 25F of the Act. The offer in the notice to pay the retrenchment compensation on the production of no demand certificate from the concerned branches according to the Tribunal clearly shows that the management did not intend to pay retrenchment compensation at the time of retrenchment. The objection on 1*lhalf of the management that this defect in the notice was not pleaded in the written statement filed on behalf of the work-. man was rejected with the observation that in para 13 of the written statement it was averred that the grounds given in the retrenchment notice were all false and cooked up and in para 15 of the written statement it was pleaded that the retrenchment of the employee was mala fide, unjustified and against law. The infirmity in the notice being apparent on its face, in the opinion of the Tribunal, Shri Naidu was entitled to be reinstated and also to his wages and other dues. On tJtis reasoning the impugned award was made in favour of Shri Naidu.\n\nBefore us Shri Setalvad, the learned counsel for the appellant, the Management of Hindustan Steel Ltd., submitted tbat this case is really governed bys. 25FFF of the Act ands. 25F(b) is inapplicable. It was pointed out that cl. (b) of s. 25F which has been held by the award to have been violated biy the appellant in the present case is not attracted to 'the facts. The counsel questioned the legality of the view taken by the Tribunal and submitted that s. 25FFF ( 2) is the real provision which applies to the facts ol the present case.\n\nThe short question thus requiring determination is whether s. 25F(b) ors. 25FFF(2) of the Act is attracted to the facts of this case. In order to appreciate the true scheme and scope of these sections it would be helpful to reproduce them :\n\n\"25F. Conditions precedent to retrenchment of workmen:\n\nNo workman in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- ( a) the workman has been given one month's notke\n\nin writing indicating the reasons for retrenchment\n\nMANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, J.) 309\n\n(b)\n\nand the penod of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice :\n\nProvided that no such notice shall necessary if the retrenchment is under an agreement specifies a date for the termination of service; the workman has been paid, at the time of .retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and C ( c) notice in the prescribed manner is served on the\n\nappropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.\"\n\n\"25FFF. Compensation to workmen in case of closing down of undertakings :\n\n( 1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensalion in accordance with the provisions of section 25F, as if the workman had been retrenched :\n\nProvided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not\n\nexceed his average pay for three months.\n\nExplanation .-An undertaking which is closed down by reason merely of financial difficulties (including financial losses) or accumulation oi undisposed of stocks or the expiry of the period of the lease or the licence granted to it where the period of the lease of the licence expires on or after the first day of April, 1967 shall not be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this subsection.\n\n(2) Where any undertaking set up for the construction of buildings, bridges, roads, ca.nals, dams or other construction work is closed down on account of the completion of the work within two years from the date on\n\nwhich the undertaking had been set up, no workman employed therein shall be entitled to any compensation under clause (b) of section 25F, but if the construotion work is not so completed within two years, he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six months.\" ·\n\nBoth of these seotions occur in Ch. V-A of the Act dealing with \"Lay-off and Retrenchment\" inserted in 1953. In enacting s. 25F the Legislature standardised the payment of compensation to workmen retrenched in the normal or ordinary sense in an\n\nexiting or continuous industry bjy adopting a simple yard-stick of the length of service of the retrenched workmen doing away with the perplexing variety of factors for determining the appropriate relief in each case.\n\nIn Hari Prasad Shiv Shankar Shukla\n\nv. A. D. Divekar(') it was held that this section was not intended by the Legislature to be applicable to bona fide closure of business. This decision led to amendment of the Act \"by the Parliament In 1957 s. 25FFF was inseted in order to give benefit of s. 25F to the retrenched workmen where an undertaking js closed down \"for any reason whatsoever\".\n\nWe need not refer to the amendment of s. 25FF because that section does not directly concem us. According to sul>-s.(2) oi s. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of s. 25F. The language of s. 25FFF(2) is plain and unambiguous.\n\nIndeed1 the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then\n\ncl. (b) of s. 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause. According to Shri Madan Mohan, however, the present was not a case of closure oi the undertaking.\n\nHis submission was that only the work of the Housing Project at Ranchi had been completed. It was argued that unless the entire undertaking of the appellant was closed down s. 25FFF(2) could not apply. This submission is, in our opinion, not acceptable.\n\nThe word undertaking as used in s. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondent. Even closure or stQppage of a part of the business or activiti1:3 of the employer would seem in law to be covered l;>y this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi\n\n(I) !1957) S.C.R. 121.\n\nMANAGEMENT lllNOUSTAN STEEL v. WORKMEN (Dua, J.)311\n\nHousing Project was clearly a distinct venture undertaken by the appella111t and it had a distinct beginning and an end. Separate office was apparently set up for this venture and on the completion ol the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and we have no hesitation in agreeing with its view.\n\nThere is no cogent ground for ri:-opening the Tribll!lal's conclusion under brt. 136 of the Constitution. lit is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project. In Workmen of thelndian Leafs Tobacco Development Co. Ltd. v. Management(\") closure of eight out of 21 depots of the company though not amounting to closure of its entire business was considered to amount to a closilre\n\nwithin the contemplation of s. 25FFF. In Parry & Co. Ltd. v.\n\nP. C. La/(2 ) it was observed that it was within the managerial discretion ol an employer to organise and arrange his business iii the manner he considered best and that if a bona fide scheme for such re-organisation results in surplusage of employees, no employer is expected to carry on the burden of such economic deadweight and retrenchment has to be accepted as inevitable, however unfortunate. The reasoning and ratio of these decisions support the appellant's argument.\n\nNow, under s. 25FFF( 1), which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of s. 25F as if he had been retrenched.\n\nRetrenchment notice, Ex. 7, dated June 22, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required.bys. 25F, in case cl. (b) is held inapplicable.\n\nIt is also clear that the respondent had not specifically raised any plea ol defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the olJliection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.\n\nIn our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and 1that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its\n\n\nbeing conditional. The plea of. the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard abkmt the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice. to enable them to meet it. Jn our view, if cl. (b) of s. 25F is excluded from consideration and the plea relirtinit to infirmity of lhe notice is ruled out, as we hold on these two points in agreement with Shri Seta)vad, then, the impugned order is clearly insupportable. We are, therefore, constrained' to allow !he appeal, set aside the impugned award and. hold thll't the retrenchmen~ of Shri Naidu was proper and justified. In the circumstances of the case there would be no order as to costs.\n\nG.C.\n\nAppeal allowed.", "total_entities": 96, "entities": [{"text": "MANAGEMENT OF HINDUSTAN STEEL LTD", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "Management of Hindustan Steel Ltd.", "offset_not_found": false}}, {"text": "THE WORKMEN & ORS", "label": "RESPONDENT", "start_char": 39, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "THE WORKMEN & ORS", "offset_not_found": false}}, {"text": "January 12, 1973", "label": "DATE", "start_char": 59, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "January 12, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 78, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. 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C. Setalvad", "label": "LAWYER", "start_char": 4161, "end_char": 4175, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Santosh Chatterjee and G. S. Chatterjee, for the appellant."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 4177, "end_char": 4195, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Santosh Chatterjee and G. S. Chatterjee, for the appellant."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 4200, "end_char": 4216, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Santosh Chatterjee and G. S. Chatterjee, for the appellant."}}, {"text": "Madan Mohan", "label": "LAWYER", "start_char": 4239, "end_char": 4250, "source": "ner", "metadata": {"in_sentence": "o Madan Mohan and Ram Das Chadha, for respondents Nos.", "canonical_name": "Madan Mohan"}}, {"text": "Ram Das Chadha", "label": "LAWYER", "start_char": 4255, "end_char": 4269, "source": "ner", "metadata": {"in_sentence": "o Madan Mohan and Ram Das Chadha, for respondents Nos."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4346, "end_char": 4349, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.\n\nEmployees' Union, Ranchi :\n\n\"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?"}}, {"text": "Management of Hindustan Steel Ltd.", "label": "PETITIONER", "start_char": 4358, "end_char": 4392, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.\n\nEmployees' Union, Ranchi :\n\n\"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?", "canonical_name": "Management of Hindustan Steel Ltd."}}, {"text": "Ranchi", "label": "GPE", "start_char": 4394, "end_char": 4400, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.\n\nEmployees' Union, Ranchi :\n\n\"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?"}}, {"text": "Venkatesan", "label": "OTHER_PERSON", "start_char": 4711, "end_char": 4721, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.\n\nEmployees' Union, Ranchi :\n\n\"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?"}}, {"text": "R. Venkatesan Naidu", "label": "OTHER_PERSON", "start_char": 4939, "end_char": 4958, "source": "ner", "metadata": {"in_sentence": "According to the Written statement filed by the Management Shri R. Venkatesan Naidu, the workman concerned (hereinafter\n\nto be referred as Shri Naidu) was recruited to the work-charged G establishment of the Ranchi Housing Project undertaken in 1960 on a consolidated salary of Rs."}}, {"text": "March 15, 1960", "label": "DATE", "start_char": 5339, "end_char": 5353, "source": "ner", "metadata": {"in_sentence": "Shri Naidu joined duty on March 15, 1960 after accepting those condi?ons."}}, {"text": "June 20, 1960", "label": "DATE", "start_char": 6014, "end_char": 6027, "source": "ner", "metadata": {"in_sentence": "Shri Naidu assumed charge of the post of Overseer on June 20, 1960."}}, {"text": "December 31, 1966", "label": "DATE", "start_char": 6269, "end_char": 6286, "source": "ner", "metadata": {"in_sentence": "The construction and the connecled residuary work rela'ting to the Ranchi Housing Project were over by the end of the year 1966 and it was decided to wind up this project and retrench 13 workmen employed in four categories with effect from December 31, 1966 after giving notices and paying compensation to the workmen concerned."}}, {"text": "Verghese", "label": "OTHER_PERSON", "start_char": 6433, "end_char": 6441, "source": "ner", "metadata": {"in_sentence": "The services of three executives and two Overseers ( Shri Naidu\n\nand Shri Verghese) were retained for some time in order to finalise accounts and to carry on some residuary work in connection with the said project."}}, {"text": "Bokaro Steel Ltd.", "label": "ORG", "start_char": 6723, "end_char": 6740, "source": "ner", "metadata": {"in_sentence": "The management tried to secure employment to those five persons in the sister units of the Hindustan Steel Ltd., or sister public under takings like Bokaro Steel Ltd., but without success."}}, {"text": "Bokaro !Steel Ltd.", "label": "ORG", "start_char": 6846, "end_char": 6864, "source": "ner", "metadata": {"in_sentence": "Shri Naidu, it is state<l.. did not possess any basic qualifications laid down by Bokaro !"}}, {"text": "June 30, 1968", "label": "DATE", "start_char": 6934, "end_char": 6947, "source": "ner", "metadata": {"in_sentence": "Steel Ltd. 1he tenure of the posts held by these five persons was extended upto June 30, 1968."}}, {"text": "Central Engineering and Design Bureau", "label": "ORG", "start_char": 7069, "end_char": 7106, "source": "ner", "metadata": {"in_sentence": "The departmental committee consisting of senior officers considered their cases for absorption in suitable posts in the Central Engineering and Design Bureau."}}, {"text": "June 22; 1963", "label": "DATE", "start_char": 7373, "end_char": 7386, "source": "ner", "metadata": {"in_sentence": "It was in these circumstances that according to the management Shri Naidu's services were retrenched with effect from the afternoon of June 22; 1963."}}, {"text": "industan Steel Ltd.", "label": "ORG", "start_char": 8169, "end_char": 8188, "source": "ner", "metadata": {"in_sentence": "It was pleaded on behalf of the workmen that prior to joining industan Steel Ltd., Shri Naidu had been serving as a construction foreman in the Damodar Valley Corporation Ud.,"}}, {"text": "Damodar Valley Corporation Ud", "label": "ORG", "start_char": 8251, "end_char": 8280, "source": "ner", "metadata": {"in_sentence": "It was pleaded on behalf of the workmen that prior to joining industan Steel Ltd., Shri Naidu had been serving as a construction foreman in the Damodar Valley Corporation Ud.,"}}, {"text": "Februarv 18, 1960", "label": "DATE", "start_char": 8326, "end_char": 8343, "source": "ner", "metadata": {"in_sentence": "during the period 1950 to 1957 and that on Februarv 18, 1960 he applied to the Hindustan Steel Ltd.. tor."}}, {"text": "Hindustan Steel Ltd", "label": "ORG", "start_char": 8362, "end_char": 8381, "source": "ner", "metadata": {"in_sentence": "during the period 1950 to 1957 and that on Februarv 18, 1960 he applied to the Hindustan Steel Ltd.. tor."}}, {"text": "March 10, 1960", "label": "DATE", "start_char": 8572, "end_char": 8586, "source": "ner", "metadata": {"in_sentence": "He was interviewed and after testing his merits for the job of Works Supervisor he was offered the same on\n\nMarch 10, 1960."}}, {"text": "May 20, 1960", "label": "DATE", "start_char": 8659, "end_char": 8671, "source": "ner", "metadata": {"in_sentence": "Later he was offered the job of an Overseer and he joined that post on May 20, 1960."}}, {"text": "June 10, 1964", "label": "DATE", "start_char": 8773, "end_char": 8786, "source": "ner", "metadata": {"in_sentence": "sheet on June 10, 1964 on the ground that there was some short age of steel rods."}}, {"text": "January 13, 1965", "label": "DATE", "start_char": 8970, "end_char": 8986, "source": "ner", "metadata": {"in_sentence": "After an enquiry he was found guilty and on the recommendation.s of the enquiry committee he was dismissed with effect from January 13, 1965."}}, {"text": "Presiding Officer, Labour Court, Ranchi", "label": "COURT", "start_char": 9014, "end_char": 9053, "source": "ner", "metadata": {"in_sentence": "Shri Naidu approached the Presiding Officer, Labour Court, Ranchi under s. 25 Of the B Bihar Shops and Establishments Act, 1963 complaining 11gainst his dismissal and the Presiding Officer on April 13, 1966 held tho order of dismissal as unjustified and illegal and ordered his reinstatement."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 9060, "end_char": 9065, "source": "regex", "metadata": {"statute": null}}, {"text": "B Bihar Shops and Establishments Act, 1963", "label": "STATUTE", "start_char": 9073, "end_char": 9115, "source": "regex", "metadata": {}}, {"text": "April 13, 1966", "label": "DATE", "start_char": 9180, "end_char": 9194, "source": "ner", "metadata": {"in_sentence": "Shri Naidu approached the Presiding Officer, Labour Court, Ranchi under s. 25 Of the B Bihar Shops and Establishments Act, 1963 complaining 11gainst his dismissal and the Presiding Officer on April 13, 1966 held tho order of dismissal as unjustified and illegal and ordered his reinstatement."}}, {"text": "7 /10 May, 1966", "label": "DATE", "start_char": 9338, "end_char": 9353, "source": "ner", "metadata": {"in_sentence": "He reaumed his duties on receipt ol the office order on 7 /10 May, 1966."}}, {"text": "May 12, 1966", "label": "DATE", "start_char": 9498, "end_char": 9510, "source": "ner", "metadata": {"in_sentence": "But somo big bosses of the m11DagC'- ment were not happy on account of his reinstatement with the c result that he was again charge-sheeted on May 12, 1966 on the ground that he had falsely stated that he had passed the Senior cambridge Examination."}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 9843, "end_char": 9849, "source": "regex", "metadata": {"linked_statute_text": "Of the B Bihar Shops and Establishments Act, 1963", "statute": "Of the B Bihar Shops and Establishments Act, 1963"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 9857, "end_char": 9880, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 10, . 1960", "label": "DATE", "start_char": 10349, "end_char": 10365, "source": "ner", "metadata": {"in_sentence": "On March 10, ."}}, {"text": "Ranchi F Housing Project", "label": "ORG", "start_char": 10492, "end_char": 10516, "source": "ner", "metadata": {"in_sentence": "250/ • p.m. in the work-charged blishm.ent of the Ranchi F Housing Project but it was made clear to him that the post was purely temporary 3illd subject to ."}}, {"text": "March 15, .1960", "label": "DATE", "start_char": 10706, "end_char": 10721, "source": "ner", "metadata": {"in_sentence": "joining report on March 15, .1960."}}, {"text": "April 18, 1960", "label": "DATE", "start_char": 10726, "end_char": 10740, "source": "ner", "metadata": {"in_sentence": "On April 18, 1960 Shri Naidu applied for the post of an Overseer and mentionod in the column meant for the particulars of the examination passed \"Cambridge Senior\"."}}, {"text": "14/15 JIJlle, 1960", "label": "DATE", "start_char": 10910, "end_char": 10928, "source": "ner", "metadata": {"in_sentence": "By office order dated 14/15 JIJlle, 1960 he was offered G\n\nthe tcm."}}, {"text": "March 31, 1961", "label": "DATE", "start_char": 11081, "end_char": 11095, "source": "ner", "metadata": {"in_sentence": "According_ to term S his appointment waS upto March 31, 1961 but it could be extcn<led beyond that date in case the company so desired."}}, {"text": "June 29, 1968", "label": "DATE", "start_char": 12097, "end_char": 12110, "source": "ner", "metadata": {"in_sentence": "His services were retrenched with effect from June 29, 1968."}}, {"text": "March 31, 1~68 and", "label": "DATE", "start_char": 12587, "end_char": 12605, "source": "ner", "metadata": {"in_sentence": "The award further held\n\nthat the management had decided to wind up the establishment of Ranchi Housing Project with effect from March 31, 1~68 and that serious attempts were made to absorb Shri Naidu but without success."}}, {"text": "s. 258", "label": "PROVISION", "start_char": 13570, "end_char": 13576, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 14125, "end_char": 14131, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 14832, "end_char": 14838, "source": "regex", "metadata": {"statute": null}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 15830, "end_char": 15838, "source": "ner", "metadata": {"in_sentence": "Before us Shri Setalvad, the learned counsel for the appellant, the Management of Hindustan Steel Ltd., submitted tbat this case is really governed bys.", "canonical_name": "Setalvad"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 16050, "end_char": 16056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 16271, "end_char": 16277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(b)", "label": "PROVISION", "start_char": 16415, "end_char": 16424, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25F", "label": "PROVISION", "start_char": 18041, "end_char": 18052, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25F", "label": "PROVISION", "start_char": 18285, "end_char": 18296, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25F", "label": "PROVISION", "start_char": 19192, "end_char": 19203, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 19556, "end_char": 19562, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20142, "end_char": 20148, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20191, "end_char": 20197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20328, "end_char": 20334, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20413, "end_char": 20419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20602, "end_char": 20608, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20626, "end_char": 20632, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 20832, "end_char": 20838, "source": "regex", "metadata": {"statute": null}}, {"text": "Madan Mohan", "label": "LAWYER", "start_char": 20952, "end_char": 20963, "source": "ner", "metadata": {"in_sentence": "According to Shri Madan Mohan, however, the present was not a case of closure oi the undertaking.", "canonical_name": "Madan Mohan"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 21206, "end_char": 21212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 21320, "end_char": 21326, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 22761, "end_char": 22767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 23284, "end_char": 23290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 23435, "end_char": 23441, "source": "regex", "metadata": {"statute": null}}, {"text": "June 22, 1968", "label": "DATE", "start_char": 23507, "end_char": 23520, "source": "ner", "metadata": {"in_sentence": "7, dated June 22, 1968, quite clearly complies with this requirement."}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 25069, "end_char": 25075, "source": "regex", "metadata": {"statute": null}}, {"text": "Seta)vad", "label": "OTHER_PERSON", "start_char": 25226, "end_char": 25234, "source": "ner", "metadata": {"in_sentence": "b) of s. 25F is excluded from consideration and the plea relirtinit to infirmity of lhe notice is ruled out, as we hold on these two points in agreement with Shri Seta)vad, then, the impugned order is clearly insupportable.", "canonical_name": "Setalvad"}}]}
{"document_id": "1973_3_313_327_EN", "year": 1973, "text": "STATE OF U.P. v.\n\nPARAS NATH SINGH & ORS.\n\nJanuary 15, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C~ A. VAIDIALINGAM, JJ.J Crirninal k; Jw-Practice and procedure-Eye witnesses f.elativeS' of deceased-No intrinsic infirmity in their evidence----.Jf corroboration. necessary for sustaining conviction-Sentence of life imprisonment instead of death-Circumstances justifying.\n\nThe six respondents (accused) were convicted by the trial Olurt for offences Ulllder s. 302/149, I.P.C. Four of them were sentenced to death and two to Imprisonment for life on the grounds that one was a 'budding lawyer' and the other was IS years old. The son and daughter of .the dec, eased were examined as eye witnesses to .the .occurrence. Four penons, who were cited as eye-witnesses by the prosecu-\n\nUon, were giv~ up, because, the counsel for prosecution represented that he had reason to believe that they would not speak the tmth.\n\nThey were neither examined by the trial court under s. 540, Cr.P. C., nor as defence witnesses. The trial court scrutinised carefully and properly evaluated the evidence of the son and daughter, and as the son was 12 or 13 years old, applied the correct principles gover.ning the appreciation of the evidence of a child witness and accepted th.eir evidence as true.\n\nThe Hipt Court on appeal, examined the 4 witnesses given up by the prosecution, as court witnesses.\n\nIt devoted a major part of its judgment to the consid, eration of the additional evideroce recorded by it. Feeling whotly unimpres; ed by that evidence, the High Court endors.ed the view of the plrosecution that these witnesses were given up as they were not prepared to speak the truth and even issued notice und, er s. 479A, Cr. P. C. to one of them to show cause why he should 1not be prosecuted for perjury. The High Court disagreed with the main arguments urged on behalf of the accused for discrediting the testimony of the son and daughter. Bui, th.e High Court acquitted the accused on the view that the SOI> and daughter, being closely related to the deceased and being in a sense, chance witnesses, their evideince without corroboration did not prove the guilt of the accused beyond reasonable doubt.\n\nAllowing the appeal to this Court,\n\nHELD: (!) The judgment of the High Court reversing the judgment of the trial court and acquitting the accused caused grave miscarriage of justice.\n\n[32SB-C]\n\nOnce the two eye witinesses were h.eld to be trustworthy witnesses there was no cogent reason for not acting upon their evidencle. The fact that the other persons who were present at the spot and had\n\nw?tnesse~ the urrence have, without 11ny good reason and, perhaps with oblique motive, chose.n t t? state the truth in court and thereby obs!ructcd the course of 1ushce, is a sound reason for accepting the testimony of the son and daughter. To decline to act upon their testimony merely because of the absence of other witnesses to corroborate them in court, is to defeat the cause of justice in this case.\n\nIt was wholly unreasonable for the High Court to dub them as chance wit- :nesses, as there i! no material on record to support such an observation. and the observation runs counter to the High Court's own line of\n\nreasoning earlier. There is thus absolutely no justification for the view that theit testimony leaves any scope for reasonable doubt ebout the guilt of the accused. It could not be considered that because of their relationship to thi: deceased, they would spare the real assailants \"\"\"1 ffilaely implicate the accused, and in the circumstances of the case, there is no scope for such a hypothesis.\n\nThere is no general rule that the .evidence of the relations of the deceased must be corroborated for securing the conviction of the offender.\n\nEach case is to be considered on its own facts. [325F-326Cj\n\nbl the present case, there is an instr'insic ring of truth in the evidence of the two eye witnesses.\n\nThe straight forward nature of their deposition and the fact that they were undoubtedly in. a position t<> identify the assailants coupled with the recovery of blood-stained earth from the place of occurrence ]eave no reasonable doubt about the guilt of the accused. [326C-D]\n\n(2) No leniency should have been show.n to the 'budding lawyer', because, he, as a result of his education and profession should have exercised a restraining inftuenc~ on his associates rather than allowed himself to be misled by them into being a party to a gruesome murder.\n\nHowever, in view of the facts that: (a) the murder was committed as far back as 1968; (b) on convictiO\\ll by the trial court in September 1969, the accused were under the shadow of death; (c) the accused were acquitted by the High Court in May 1970; and ( d) it is not .possible to assign with certainty the fatal blows to any particular accused person, the ends of justice would be served by sen tencing all the accused to impris()Jll11ent for life. [3260-H; 327 A-CJ\n\nORIGINAL APPELLATE JURISDICTION : Criminal Appeal No. 49 of 1971.\n\nAppeal by special leave from die judgment a, nd order May 18, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 1947 of 1969.\n\n0. P. Rana for die appellant.\n\nNuruddin Ahmad and U. P. Singh for the respondent,.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code. The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent. Leniency was shown to them bv l!he trial court because Surendra Pratap Singh was stated to be a budding lawyer and Shiv Pratap Singh, being of tender age (15 or 16 years old).\n\n..:.. .\n\n-\" .\n\n> ,..\n\nwas considered to have apparently been misled by his relations.\n\nExcepting Surendra Pratap Singh and Hari Saran Singh, the remaining accµsed were also sentenced to rigorous imprisonmen~ for one year each under s. 14 7, l.P .C. They were furthe_r convtcted under s. 148, l.P.C. and sentenced to rigorous imprisomnent for two years each. Accused !'aras Nath Singh was in addition, sentenced to rigorous imprisomnent for six months under s. 397, l.P.C.\n\nThe relevant facts necessary for our purpose may now be stated. The six respondents (hereinafter called the accused) were charged with the murder of Suresh Singh on July 9, 1968 and with the theft of his gun and cartridges along with t!!e container. The deceased and the accused are all Thakurs by caste residing in village Isanpur. Accused Surendra Pratap Singh and Ramendra Pratap Singh are brathers residing in a house adjoining that of the deceased, being thus his next door neighl::!Ours. Shiva Pratap Singh and Lal Pratap Singh are cousins and the other accused persons are said to be their associates. There was long standing enmity between the deceased on the one h_and and Ramendra Pratap Singh and. his family members on the other. About six or seven months prior to the present occurrence, Ramendra Pratap is said to have tried to fire at the deceased on Dewali • day and a case under s. 307, I.P.C. arising out of the said incident was pending at the time of '!lie murder Of the deceased. . About five or six days prior to the murder Ramendra Pratap Singh, Surendra . Pratap Singh and one Vijai Bahadur Singh are stated to have beaten the deceased inside his house giving rie to another case under s. 107)117, Cr. P. C. which was also pending at _the time of the murder in question. This enmity is stated to be the motive for the murder of the deceased. Now turning to tht; occurrence in question on July 9, 1968, Suresh Singh deceased had gone to Pratapgarh on cycle for some work carrying with him his gm~ and cartridges. On his way back from Pratapgarh the same evening at about sunset when he reached Rakhaha Bazar and was on the Rakhaha Bazar-Kandhai kachha road, all the . accused persons emerged from the nearby Nala.\n\nThey surrounded their victim Snresh Singh, shouting th:rt he should be killed because he posed to be a great leader. The accused who were armed with lathis, spears and farslza, assaulted the deceased with their respective weapons. Smt. Sheela Devi, P. W. 1, daughter of the deceased and Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened Jo be .returning to their village from Rakhaha Bazar where they had gone to purchase parwal (a vegetable) for their mother who .was not well. On hearing the alarm they went towards the nala where they saw the accused assaulting their father with lathis, spears and farsha.\n\nSeveral other persons, including Shiva. Pratap 5-L796Sup.C. I./73\n\nSingh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence. The deceased fell down on receipt of injuries and the accused ran away carrying with them the gun and container of cartridges along with its contents belonging to the deceased.\n\nThe cycle and a jhola belonging to the deceased and lying on the spot was sent home by Sheela Devi (P.W. 1) through one Mahabir. Sheela Devi also sent for her mother ( Smt. Sundari Devi) through the same man.\n\nThe mother arrived soon thereafter and Suresh Singh was taken on an ekka io Diwan Mau from where he was taken in a taxi to the District Hospital, Pratapgarh. Suresh Singh appears to have expired on hls way to the hospital near village Pipari. The doctor on examining Suresh Singh informed Sheela Devi that her father had already died and advised her to lodge a report at the Police Station, Kotwali. She wrote out a report of t!!~ occurrence (Ex.\n\nKa-1) at the hospital and along\\ with the dead biody, went to Kotwali police station where she handed over the written report the same night at about 11.30 p.m. on the basis of which Ka-18. the formal F.I.R. was prepared. A case under ss. 302/147 /148/ 149, I.P.C. was thereupon registered and all the relevant papers sent to the police station Kandhai. As a result of the investigation, it was considered necessary also to frame a charge against the accused persons under s. 379 read with s. 149. I.P.C. for the theft of the gun and the cartridges along with their containers belonging to the deceased. The foregoing is the prosecution version.\n\nAt the trial the only eye-witnesses deposing to the actual occurrence were Smt. Sheela Devi, (P.W. 1) the daughter and Sachendra Pratap Singh (P.W. 2), the son of the deceased. P.W. 1 was about 19 years old when she gave evidence at the trial in July, 1969 and P.W. 2 about 13 or 14 years old. The other persons mentioned in the F.I.R. by P.W. 1 were not produced as witneses on the ground that they were not prepared to depose in favour of the prosecution at the trial. P.W. 1 and P.W. 2 have unfolded the pr0 secution case deposing to the incident as witnessed by them. According to P.W. 1, she and her younger brother who had gone to Rakhaha Bazar in the afternoon for buying Parwal. while returning to their home, heard the alarm as thev reached the kachcha road. They went towards the side from which the noise came and saw that their father was being beaten biv Lalii. Chotey Lal. Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh. with farsha.\n\nThey took her father down into the Nala shoutig. \"1<;11 the sala. he was olaying the oart of Nefaf!iri vef'V much\".\n\nAfter the accused h•~ run awav. p. w. 1 went near her father who. thon!!h badlv iniured, was still in a position to speak. He tnld her and the other oer<ons who had assembled there that the accused t1ersons had been hiding\n\nH •\n\ninside the Nala and that they had forcibly taken him away from the road into the Na/a and beaten him.\n\nShe sent her father's eycle and jhola home through Mahabir Singh also requesting him to send her mother to the place of occurrenc;:. Her mother came there and after arranging for an ekka, Suresh Singh was taken to Diwan Mau from where Suresh Singh was taken to the hospital in a taxi. On the way Suresh Singh expired near Pipari. After the doctor had certified death of Suresh Singh, P.W. 1 was advised. by the doctor to make a report in the Sadar Police Station. She wrote out a report in the hospital and along with the dead body of the deceased, she went to the police station and lodged the report in the Kotwali. Paras Nath, accused, according to P.W. 1, had taken away with him the gun and the cartridge belt belonging to the deceased. She had herself to go to the Kotwali to lodge the report because there was no other adult male member left in their house. According to her, Sarvashri Ram Pratap Singh, Krishnapal. Singh, Ran1esh Prasad Singh and Ruddar Pratap Singh, Vakils, live in the neighbourhood of her village.\n\nThese persons being under the influence of the lawyers, she could not say if they would be willing to give evidence in support of the prosecution. She was cross-examined at great length by four different lawyers defending the accused persons.\n\nSachendra Pratap Singh, (P.W. 2), a boy who did not appear to the court to be more than 12 or 13 years of age, was first questioned by the trial court by asking him unexpected but intelligent questions to which he gave rational and sensible answers which impressed the court and the court came to the conclusion that the boy understood the importance of justice and of taking oath and was fully conscious of the desirability of speaking the truth when on oath.\n\nP.W. 2 fully corroborated P.W. 1 on all material points.\n\nHe too was cross-examined at great length by all the defence counsel.\n\nIt appears that after the examination of P.W. 1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not bieing produced as witnesses by the prosecution. It was suggested !hat they could be examined by the court under s. 540, Cr. P.C. if considered proper or the accused persons could examine them in their defence, if they so liked. On this application the counsel for the accused oersons recorded a note opposing the suggestion and describin~ the allegation against the witnesses as baseless. Section 540, Cr. P.C., according to the defence counsel was inapplicable and he also decFned to examine these witnesses in defence.\n\nThe said witnesses were in these circumstances discharged by the trial court on July 9, 1969.\n\nThe ffial court i11 a very detailed and exhaustive judgment dealing with every aspect in a very lucjd manner, came to the conclusion that P.W. 1 and P.W. 2 were both truthful witnesses and their sincerity and h,.onesty in speaking the truth could not be doubted.\n\nAfter stating the principle governing the evidentjary value of ihe testimony of a child witness, the trial court made the followin;: observations about the quality and value of the evidence :i.f P.W. 2:\n\n\"He has been cross-examined at a very great length :.nd that too by four sets of defence lawyers repute.\n\nIt i, amazing to find that despite their lengthy and cumbersome cross-examination the witness has not been impaired. Had he not been an eye-witness of the occurrence and had he been examined after tutoring he could not have remained firm even for a single moment. The said witness was tried to be beguiled, tempted and also brow-beaten but to my utter surprise he maintained his mental composure throughout and did not yield anywhere during tbe cross-examination. Even on the most minute details the witness did not confuse and gave convincing replies to them.\n\nFrom the beginning to the end of the incident he has successfully acquitted himself and not a single thing could be pointed out in his statement which could be used as a weapon against him. The manner and the method which the P.Ws. have exhibited in the witness box have left an everlasting impression in my mind about their sincerity and truthfulness.\n\nAs a Judge of fact I am definitely of the opinion that unless trnthful and honest the P.Ws. 1 and 2 would have collapsed under the weight of this trying and tiring crossexamination\".\n\nThe testimony of P.W. 2 according to the triatcourt was fully supported and corroborated by his sister, P.W. 1, who has unfolded the prosectrtion version about the occurrence in question. The trial court also upheld the jurisdiction for not producing the other witnesses in court.\n\nThis is what the trial court has said in this connection :- \"The nature and number of injuries found on the person of the deceased and that too in a broad day light goes to show that the deceased was beaten mercilessly.\n\nThe site of the scene of the occurrence and the injured must have been awe striking and appalling.\n\nTo all those who might have seen the occurrence it must have left an indelible impression that the accused meant business and there was nothing which could deter them from accomplishing their tariet. This psychoanalysis of the\n\n1 H\n\nsituation too has o be kept in mind before g1vmg a finding about the respective versions of the parties.\n\nSeveral documents have been filed in the case by the prosecution to show that cases under sections 307, 323 / 452, l.P.C. and under sections 107/117, Cr. P.C.were pending :tt the time of occurrence between the deceased on the one hand and the accused Ramendra and his family on the other. In these circumstances there was nothing surprising if even on-lookers did not dare to come forward. Further I am constrained to observe tjiat had the accused been on bail even the offsprings of the deceased i.e., P.Ws 1 and 2 could not have come in the witness box to depose about facts relating lo the murder ot their father and in 'that case the fact of even the death of !he deceased would have been enveloped in darknes5.\n\nWhatever reason may be there to it there is no denying the fact that witnesses in 1he case have kept back\n\nand have avoided coming forward. l n this connection I may recall the statements of P.Ws 1, 2 and 4. Out of so many public witnesses named in :the charge-sheet only P.Ws 1 and 2 could figure as eye-witnesses of the occurrence. Had they not been the family members of the deceased even they would not have come. P.W. lnder Singh has stated that the witnesses have been pres surised not to come. I am very much impressed by the statements of P .Ws 1, 2 and 4 on this score.\n\nThus in the case of the present nature no one coulg Like to invite trouble for him by coming in the witness box. There is not the least doubt that either because of fear or because of other influences witnesses have not liked to involve themselves in !he matter. Thus considering the evidence and the circumstances of the case I feel that the explanation offered by the prosecution regarding the absence of other P.Ws in the witness box has got to be\n\naccepted.\n\nExhibits Ka-14 and Ka-16 also lend asiurance to this finding\".\n\nExhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein.\n\nAt this stage we consider it proper to reproduce the nature and number of injuries inflicted on the deceased because according to !@ tdal court all those persons vho might have witnessed this occurrence must have been impressed by 1he fact that the accuse(! meant business d nothing could deter them from accomplishing their objeotive. The following ante-mortem injuries were found on the person of the deceased:-\n\n1. Lacerated wound 2\" x !\" bone deep on the fore-head 1 t\" above the right eye-brow.\n\n2. Lacerated wound l\" x t\" x scalp, deep just behind injury no. 1.\n\n3. Abrasion t\" x t\" on the forehead 2\" above the left eyebrow. +. Incised wound 2!\" x !\" b(Jne deep 1\" behind the left ear directed downwards and outwards.\n\n5. Incised wound 3\" x t\" muscle deep on the leit side of the face directed downwards and outw:irds.\n\n6. Incised wound 1\" x t\" muscle deep just below the left\n\neye directed dowpwards and outwards.\n\n7. Punctured wound !\" x !\" x lt\" over the bridge of the nose directed upwards and inwards.\n\n8. Incised wound 1 t\" x t\" x muscle deep on the lower part of the face below the chin.\n\n9. Contusion 1\" x 1\" on the top of the right shoulder. y I 0. Contusion 3\" x 1 t\" on the medical surface of the right arm upper 1/3.\n\n11. Contusion 3\" x 2\" on the back of the right arm lower 1.13.\n\ni 2. Contusion 3\" x 1\" on the back of the right forearm middle 1/3.\n\nJ 3. Contusion l\" x l\" on the back of the right wrist.\n\nl.J. Contusion 3\" x 2\" on the back of the right hand.\n\n15. Lacerated wound l\" x t\" skin deep on the web between\n\nthe right thumb and index finger.\n\n16. Contusion 3\" x 2\" on the front of the chest near the root of the neck.\n\n17. Contusion 2\" x t\" on the front of the right 'thigh middle 1/3.\n\n18. Contusion 2t\" x :\\-'' on the front of the right thigh -!-\"\n\nbelow injury no. 17.\n\n19. Contusion 3\" x t\" on the right thigh just below injury B no. 18.\n\n20. Contui; ion 3\" x t\" on the right .thigh l\" below injury no. 19.\n\n21. Contusion 3'' x t\" on the front of the right thigh just\n\nablove the knee joint. c\n\n22. Contusion 2\" x I\" on the top of the left shoulder.\n\n23. Contusion '2!' x t\" on the lateral surface of the left arm upper 1/3.\n\n24. Contusion 3\" x 1\" on the back Of the lefit foreann upper 1/3.\n\n25. Contusion 3\" x H\" on the right forearm lower 1/3.\n\n26. Contusion H\" x t\" on the back of the left wrist.\n\n27. Contusion 1\" x t\" on the back of the left hand.\n\n28. Contusion 3\" x 1\" on the front of the left thigh middle 1/3.\n\n29. Contusion 3!\" x 1\" on the front of the left thigh lower\n\n1/3 . . 30. Abrasion 1\" x -!-\" on the front of the left knee.\n\n31. Multiple abrasion in an area of 2\" x H\" on the front\n\nof the le fit leg upper 1I3.\n\n32. Abrasion 1\" x t\" on the front of the left leg upper l /3 x 1\" below injury no. 31.\n\n33. Abrasion l'' x t\" on the front of the left leg lower 1/3.\n\n34. Contusion 6\" x 1\" on the right side of the back upper 1/3.\n\n35. Contusion 1\" x t'' on the right side of the back middle 1/3.\n\n36. Punctured wound t\" x !\" on the left side of the back middle 1/3 close to the mid line of the back directed downwards and outwards. 3 7. Punctured wound t\" x t\" on the left side of the black H lower 1 /3 directed downwards and outwards.\n\nRelying on the evidence of P.Ws l, 2 and 4, the tiial court convfoted the accused persons, as already noticed.\n\nAn appeal was preferred to the High Courl qy the si' nc.?•1scd persons against their conviction and sentenc.e x-.·~- in tne n1\\,.iUO randum of appeal the only grounds taken w•n . (1) that the conviction was bad in law; (2) that the c0n 1i<:tion was against the weight of evidence; and (3) that the senten e was too severe.\n\nDeath sentence on four of them was also !-efoce that court for confirmation.\n\nThe High Court after noticing the circumstances in which the four witnesses mentioned earlier bad been discharged by the trial court, considered it necessary to examine them itself as court Witnesses .. They were examined in the Higit Court in May, 1970.\n\nAll of them denied having been present at il.~ place of the occurrence. When cross-examined, they seem to us to have cut a very sorry figure and we consider it impossible to place any reliance on their testimony. Indeed, even the High Court, after a close scrutiny of their evidence, came to the conclusion that the four witnesses did not want to speak the truth and that they had not been withheld by the prosecution for any oblique motive as suggested on behalf of the accused persons.\n\nThe High Court accepted the evidence of P.Ws 1 and 2 with respect to the place where Suresh Singh had been Jllurdered but according to it (to quote its own words) : \"The question that . remains to be decided is whether the testimony ot P.W. 1 Smt. ·\n\nSheela Devi and P.W. 2, .Sachendra Pratap Singh, who are the daughter and son of Suresh Singh, can bie believed\". After hold• ing the four witnesses examind by pie High Court on appeal to be untruthful, the High Court proceed'd to scrutinise the evidence of P.Ws l and 2. After a thorough and detailed consideration of the criticism levelled against their testimony by the counsel for the accused persons, the High Court obs_erved :\n\n\"We have therefore come to the conclusion that\n\n- -there is nothing inherently improbable in the tatements\n\nof P.W. 1 Smt. Shil\\i Devi, and P.W. 2, Schendra Pratap-Singh. We cannot, .however, ignore the fact that they are after all the daughter and the son respectively of the deceased Suresh Singh and are in a sense chance .witnesses. It is true that under the law there is nothing which prevents us from acting upon the testimony of these two eye-witneses and. unholding the conviction of the appellants, but rules of prudence and safety have to be taken into consideration. Therefore, having given the_rµatter our anxious thought even though-we hold that we find nothing improbable in _the statements of tbese two eye-witnesses, we think it proper not. to act on the uncorroborated testimony of these witnesses. w: .. therefore, by the way of abundant caution give the appellants the benefit of the doubt\",\n\nWith these concluding observations the High Co.urt allowed the appeal of the accused persons and set aside their conviction. The High Court, however, also considered it proper to issue notice under s. 497A, Cr. P.C. to Sheo Pratap Singh son of Birju Singh who had been examined by the High Court on May 11, 1970, calling upon him to show cause why he should not be prosecuted for perjury for having falsely stated that he did not live in village Isanpur and that he did not know the accused persons.\n\nOn appeal in this Court Mr. Rana appearing on behalf Otf the Sta'te of Uttar Pradesh has submitted that the High Court has gone seriously wrong in acquitting the accused persons merely on the grormd of absence of corroboration of the evidence of P.Ws 1 and 2 when it had itself held that there was nothing improbable in the statements of these witnesses. The High Court has, according 10 the appellant's submission, seriously erred in ignoring its own earlier conclusion that the other witnesses 1ropped b!Y the prosecution who were expected to corroborate P.Ws I and 2, were not prepared to speak 'the truth.\n\nThis was a sufficiently cogent reason for not producing them and for placing complete ce!iance on the sole testimony of P.Ws I and 2.\n\nThe obserntion of the High Court that P.Ws 1 and 2 were \"'in a sense chance witnesses\". was wholly unjustified and is indeed contrary to the High Court's own earlier view accepting the testimony of P.Ws I and 2.\n\nOn the circumstances of this case, according to the appellant's counsd the evidence of P.\\Vs 1 and 2 had been rightly accepted by the trial court and the high Court erroneously required further corn'- boration for acting upon their evidence. The decision of the High\n\nCourt, it has been emphasised, erroneous as it is. has resulted in gross failure of justice In reply, Mr. Nuruddin Ahmad has with his usuc1l pasuasiw eloquence criticised the evidence of the two eye-witnesses, P.Ws\n\n1 and 2. While paying to these witnesses a high tribute for their intelligence, and presence 0£ mind and also while endorsing !he impression of the trial court that even on the matter of minute details P.W. 2 did not get conf11sed by his cross-examination but gave convincing replies to the questions. the learned counsel has argued that the high order of intelligence of these two witnesses only serves to explain their cleverness in putting forth a prima facie plausible story which is far from true.\n\nAccording to the learned counsel these two witnesses have maue up a story about the manner in which their father met with his death with the sole object of falsely implicating !he accused persons who are their enemies. The submission proceeds that neither was the deceased killed at the time stated bry these witnesses nor were they present\n\nat the spot to witness their father's murder.\n\nThe deceaed, it is suggested, had also several other enemies and his murder was ill all probability committed by some other person or persons who had their own scores to settle with him. The children of the deJ ceased who are extremely intelligent, h.ave very shrewdly thought of utilising this opportunity for getting their enemies _hanged. In this connection, the absence of any mention about the presence of parwal at the place of occurrence or with P.Ws 1 and/or P.W. 2; in the F.J.R. or in the statements of either of the two eye-witnesses has been very trongly emphasised by the counsel in support of his suggestion that the whole story about the visit of these two children of the deceased to Rakhaha Bazar on the evening of the day of occurrence for buying parwal is false and so.must, therefore, be the story of their presence at the time and the place of the murder. The counsel has also laid stress ori the fact that there was no point in their going so far away from their village to buy parwal when the same could easily have been secured from closer quarters. It has also been suggested that a young girl was normally. not expected to hie sent for purchasing parwal late in the evening.\n\nA passing observation was also made to the fact that parwal were not a medicine which could urgently be required and that the story of the witnesses' visit to Rakhaha Bazar for this purpose should be discarded as concocted and unconvincing. The other criticism very strongly pressed relates to the F.I.R.\n\nThis report which is detailed has been drafted in a form which, according to the counsel, suggests that its author has at least some knowledge. of legal phraseology and of some sections of the Indian Penal Code as also of the Criminal Procedure Code. From this it is sought to be inferred that P.W. 1 who claims to be its author, must have secured the assistance of someone conversant with the drafting of such report and she must, therefore, be assumed to have both time and opportunity of concocting a story for false!y implicating the accused persons who were the enemies of the:! family. A suggestion was put to P.W. 2, the son of the deceased, and to Head Constable Tripathi, P.W. 10, that the report had beerl lodged b.Y P. W. 1 after consulting Bhagwati Prasad but this suggestion was denied by q1em.\n\nStill another point has been forcefully urged by the counsel that according to P.Ws 1 !1._nd 2 a large number of people had gone for shopping to the Rakhaha Bazar on that day and, therefore. many people would have noticed the occurrence, ir it had actually taken place as deposed by P .Ws 1 and 2. The fact that no other independent witness is forthcoming is, according to the counsel, proof positive that the occurrence did not take place at the time and the spot and in the manner deposed by these witnesses.\n\nAlmost all these arguments were urged in the trial court and repelled for cogent reasons with which we are in full agreement\n\nand it is, therefore, not necessary to repeat them. It is note-worthy that the High Court also did not take a different view on the credibility of P.Ws l and 2.\n\nThe absence of other witnesses from the witness box is satisfaotorily explained by the prosecution and after recording the evidence of these witnesses as court witnesses, the High Court also endorsed the opinion of the prosecuting counsel that these other witnesses were not willing to speak the truth.\n\nIn our view, the High Court has gravely erred in acquitting the accused persons and indeed its judgment has resulted in grave failure of justice. The trial court had taken great pains in fully scrutinising and properly evaluating the evidenc~ of P, Ws l and 2 and after applying the correct principles governing !he appreciation of the evidence of a child witness it has accepted the , evidence of these two witnesses as true. All the arguments urged on behalf of the accused were duly consideed and repelled. The High Court on appeal devoted a major part of its judgment to t)!e consideration of the additional evidence recorded by it. Feeling wholly unimpressed by this evidence, it endorsed the view of the prosecuting agency that these witnesses were not produced in court bte cause they were not prepared to speak the truth and indeed felt constrained to issue notice under section 479A, Cr. P. C. to one of them to show cause as to why he sho11ld not be prosecuted for perjury. It disagreed with all the main arguments urged on kehalf of the accused persons for discrediting the testimony of P.Ws l_and\n\n2. but curiously enough, acquitted the accused per:mns on the view-which we must confess is not easy to appreciate-that P.Ws I and 2 being closely related to the' decased and being in a sense chance witnesses, their evidence without corroboratiQII did not proYe the guilt of the accused beyond reasonable doubt. We are not able •to endorse this view which seems to us to be both unreasonable and not supportabjle <)n the materialon record.\n\nOnce P. W s I and 2 are held to be trustworthy witnesses then there does not seem to be any cogent reason for not actin~ upon their evidence. The fact that the other persons who were present at the spot and had witnessed the occurrence have, without any good reason and, perhaps with oblique motive, chosen not to state the truth in court and thereby to obstruct the course of justice would, in our opinion, provide a sound reason for accepting the testimony of P.Ws 1 and 2 for sustaining the conviction of the accused persons.\n\nTo decline to act upon the testimony of these witnesses merely because of the absence of other witnesses to corroborate them in court, is to defeat the cause of justice in •this case. It iii wholly unreasonable for the High Court to dub P.Ws l .and 2 as chance witnesses : we find no cogent material on the record to support this observation. Indeed this observation ignores and to\n\n326 SUPRDIE COl.'RT REPORTS\n\n[1973] 3 S C.R.\n\nan extent runs counter to the High Court's own earlier line of rea.\n\nsoning. There is, we think, absolutely no justification for the view that their testimony leave< any scope for reasonable doubt about the complicity of the accused persons. Because of their relationship with the deceased they cannot be considered to be inclined to spare the real assailants for falsely involving the accused persons and indeed in the circu1m1ances of this case there is hardly any scope for such a hypothesi•. To us there appears an intrinsic ring of truth in the statements !\"\" •he two eye-witnesses which disclose no infirmity.\n\nThere is no ~1 rule that 'the evidence of the relations of the deceased musl. be corroborated for securing th\" conviction of the offender.\n\nEach case depends on its own facts and circumstances. In the present c.a_!e the straightforward nature of the deposition o, f these two witnesses and the fact that they were undoubtedly in a position to identify the assailants of their father coupled with the recovery of blood-stained earth from the place of occurrence leave no reasonable doubt about the guilt of the\n\naccused persons. The High Court has clearly taken an unreasonable and erroneous view which is not warranted bv the material on the record and has reversed the judgment of the-trial court on grounds which are manifestly fallacious and untenable. Relying on P.Ws 1 and 2 and the attending circumstances of the case we are constrained to allow the appeal and setting aside the judgment of the High Court, convict the six respondents in this Court for the offences rthey were charged with and convicted by the trial COurt.\n\nThe next question which arises relates to that of sentence. This is a matter which requires the exercise of sound judicial discretion.\n\nAfter the amendment of sec. 367, Cr. P.C. in 1955, it is no longer necessary to assign reasons for awarding the lesser penalty in the case of conviction for the offence of murder. The Comt is now free in its discretion to award any one of the two sentences prescribed by s. 302, J.P.C. The trial court had. of course imposed capital sentence on four accused persons and life imprisonment on two. Of these two, one was shown leniency because he was a budding lawyer and the ather because a.I' being young. We consider it proper to record our inability to appreciate the leniency shown in the case of a budding lawyer who, because of his education and profession was, in our opinion, expected to exercise restraining influence on his associates rather than allow himself to be misled into b'eing a party to such gruesome murder. Those who live by the law are expected to abide by the law and not violate it by volmrtarily participating in violent crimes like murder motivated by personal animosity. His participation in the present crime should, in our opinion, have been considered as an agravating rather than an extenuating circumstance. It is indeed incongruous to contend that success in legal profession by itself mitigates the culpability of the guilty lawyer.\n\nHowever, since now this Court hts to determine the proper sentence to be imposed after\n\nconverting the acquittal int.o conviction, in our opinion, in view of the facts that ( i) the murder was committed as far back as 1968; (ii) on conviction by the trial c_ourt on ptember 1, 1969, the accused were sentenced to death with the result that till !heir ucquittal by the High Coart the shadow of. death because of the capital sentence must have haun!ed them; (Hi) they were acquitted (though wrongly) by the High Court as far back as May, 1970; i'nd (iv) it is not possible to assign with certainty the fatal blows on the vulnerable parts. of the body of the deceased to any particular accused person or persons, it would meet the ends of justice if we sentence them all to imprisonment for life.\n\nWe are not unmindful of the facts that the murder was really gruesome and cowardly and the accused being highly influential persons, had also apIJ<lrent!y successfully influenced and dissuaded a number of eyewitnesses from stating the truth in court, but keeping in view all the considerations already mentioned, we feel that the more appropriate sentence in this case would be that.of life imprisonment on all the six respondents. The conviction and sentence for the theft of the gun as imposed by the trial court is also testored. The sentences on Paras Nath Singh are to be concurrent. The appeal is accordingly allowed in the terms just stated. ·\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 108, "entities": [{"text": "STATE OF U", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "PARAS NATH SINGH & ORS", "label": "RESPONDENT", "start_char": 18, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "PARAS NATH SINGH & ORS", "offset_not_found": false}}, {"text": "January 15, 1973", "label": "DATE", "start_char": 43, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "January 15, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C~ A. VAIDIALINGAM, JJ.J Crirninal k; Jw-Practice and procedure-Eye witnesses f.elativeS' of deceased-No intrinsic infirmity in their evidence----.Jf corroboration."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 62, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 79, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 302", "label": "PROVISION", "start_char": 453, "end_char": 459, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 465, "end_char": 470, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Uon", "label": "WITNESS", "start_char": 775, "end_char": 778, "source": "ner", "metadata": {"in_sentence": "Four penons, who were cited as eye-witnesses by the prosecu-\n\nUon, were giv~ up, because, the counsel for prosecution represented that he had reason to believe that they would not speak the tmth."}}, {"text": "s. 540", "label": "PROVISION", "start_char": 962, "end_char": 968, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 1696, "end_char": 1703, "source": "regex", "metadata": {"statute": null}}, {"text": "Bui", "label": "WITNESS", "start_char": 1926, "end_char": 1929, "source": "ner", "metadata": {"in_sentence": "Bui, th.e High Court acquitted the accused on the view that the SOI> and daughter, being closely related to the deceased and being in a sense, chance witnesses, their evideince without corroboration did not prove the guilt of the accused beyond reasonable doubt."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 5153, "end_char": 5160, "source": "ner", "metadata": {"in_sentence": "P. Rana for die appellant."}}, {"text": "Nuruddin Ahmad", "label": "LAWYER", "start_char": 5181, "end_char": 5195, "source": "ner", "metadata": {"in_sentence": "Nuruddin Ahmad and U. P. Singh for the respondent,."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 5200, "end_char": 5211, "source": "ner", "metadata": {"in_sentence": "Nuruddin Ahmad and U. P. Singh for the respondent,."}}, {"text": "DuA", "label": "JUDGE", "start_char": 5278, "end_char": 5281, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code."}}, {"text": "State of U. P.", "label": "ORG", "start_char": 5290, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5381, "end_char": 5401, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code."}}, {"text": "May 18, 1970", "label": "DATE", "start_char": 5408, "end_char": 5420, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code."}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5617, "end_char": 5634, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Paras Nath Singh", "label": "RESPONDENT", "start_char": 5648, "end_char": 5664, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent.", "canonical_name": "PARAS NATH SINGH & ORS"}}, {"text": "Ramendra Pratap Singh", "label": "RESPONDENT", "start_char": 5666, "end_char": 5687, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent.", "canonical_name": "Ramendra Pratap Singh"}}, {"text": "Hari Saran Singh", "label": "OTHER_PERSON", "start_char": 5689, "end_char": 5705, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent."}}, {"text": "Lal Pratap Singh", "label": "OTHER_PERSON", "start_char": 5710, "end_char": 5726, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 5757, "end_char": 5763, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 5774, "end_char": 5780, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5782, "end_char": 5787, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Surendra Pratap Singh", "label": "OTHER_PERSON", "start_char": 5801, "end_char": 5822, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent.", "canonical_name": "Surendra . Pratap Singh"}}, {"text": "Shiva Pratap Singh", "label": "OTHER_PERSON", "start_char": 5827, "end_char": 5845, "source": "ner", "metadata": {"in_sentence": "The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent.", "canonical_name": "Shiva Pratap Singh"}}, {"text": "Shiv Pratap Singh", "label": "OTHER_PERSON", "start_char": 6042, "end_char": 6059, "source": "ner", "metadata": {"in_sentence": "Leniency was shown to them bv l!he trial court because Surendra Pratap Singh was stated to be a budding lawyer and Shiv Pratap Singh, being of tender age (15 or 16 years old).", "canonical_name": "Shiva Pratap Singh"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 6336, "end_char": 6341, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 6388, "end_char": 6394, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "aras Nath Singh", "label": "RESPONDENT", "start_char": 6472, "end_char": 6487, "source": "ner", "metadata": {"in_sentence": "aras Nath Singh was in addition, sentenced to rigorous imprisomnent for six months under s. 397, l.P.C.\n\nThe relevant facts necessary for our purpose may now be stated.", "canonical_name": "PARAS NATH SINGH & ORS"}}, {"text": "s. 397", "label": "PROVISION", "start_char": 6561, "end_char": 6567, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Suresh Singh", "label": "OTHER_PERSON", "start_char": 6726, "end_char": 6738, "source": "ner", "metadata": {"in_sentence": "The six respondents (hereinafter called the accused) were charged with the murder of Suresh Singh on July 9, 1968 and with the theft of his gun and cartridges along with t!!e container.", "canonical_name": "Suresh Singh"}}, {"text": "July 9, 1968", "label": "DATE", "start_char": 6742, "end_char": 6754, "source": "ner", "metadata": {"in_sentence": "The six respondents (hereinafter called the accused) were charged with the murder of Suresh Singh on July 9, 1968 and with the theft of his gun and cartridges along with t!!e container."}}, {"text": "Isanpur", "label": "GPE", "start_char": 6901, "end_char": 6908, "source": "ner", "metadata": {"in_sentence": "The deceased and the accused are all Thakurs by caste residing in village Isanpur."}}, {"text": "Ramendra Pratap", "label": "RESPONDENT", "start_char": 7378, "end_char": 7393, "source": "ner", "metadata": {"in_sentence": "About six or seven months prior to the present occurrence, Ramendra Pratap is said to have tried to fire at the deceased on Dewali • day and a case under s. 307, I.P.C. arising out of the said incident was pending at the time of '!", "canonical_name": "Ramendra Pratap Singh"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 7473, "end_char": 7479, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7481, "end_char": 7486, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Surendra . Pratap Singh", "label": "OTHER_PERSON", "start_char": 7646, "end_char": 7669, "source": "ner", "metadata": {"in_sentence": "About five or six days prior to the murder Ramendra Pratap Singh, Surendra .", "canonical_name": "Surendra . Pratap Singh"}}, {"text": "Vijai Bahadur Singh", "label": "OTHER_PERSON", "start_char": 7678, "end_char": 7697, "source": "ner", "metadata": {"in_sentence": "Pratap Singh and one Vijai Bahadur Singh are stated to have beaten the deceased inside his house giving rie to another case under s. 107)117, Cr."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 7787, "end_char": 7793, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Pratapgarh", "label": "GPE", "start_char": 8037, "end_char": 8047, "source": "ner", "metadata": {"in_sentence": "Now turning to tht; occurrence in question on July 9, 1968, Suresh Singh deceased had gone to Pratapgarh on cycle for some work carrying with him his gm~ and cartridges."}}, {"text": "Snresh Singh", "label": "OTHER_PERSON", "start_char": 8344, "end_char": 8356, "source": "ner", "metadata": {"in_sentence": "They surrounded their victim Snresh Singh, shouting th:rt he should be killed because he posed to be a great leader.", "canonical_name": "Suresh Singh"}}, {"text": "Sheela Devi", "label": "WITNESS", "start_char": 8551, "end_char": 8562, "source": "ner", "metadata": {"in_sentence": "Sheela Devi, P. W. 1, daughter of the deceased and Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened Jo be .returning to their village from Rakhaha Bazar where they had gone to purchase parwal (a vegetable) for their mother who .was not well."}}, {"text": "Sachendra Pratap Singh", "label": "WITNESS", "start_char": 8602, "end_char": 8624, "source": "ner", "metadata": {"in_sentence": "Sheela Devi, P. W. 1, daughter of the deceased and Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened Jo be .returning to their village from Rakhaha Bazar where they had gone to purchase parwal (a vegetable) for their mother who .was not well."}}, {"text": "Shiva. Pratap", "label": "OTHER_PERSON", "start_char": 8976, "end_char": 8989, "source": "ner", "metadata": {"in_sentence": "Several other persons, including Shiva.", "canonical_name": "Shiva Pratap Singh"}}, {"text": "Singh", "label": "OTHER_PERSON", "start_char": 9010, "end_char": 9015, "source": "ner", "metadata": {"in_sentence": "C. I./73\n\nSingh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence."}}, {"text": "Mahabir Singh", "label": "OTHER_PERSON", "start_char": 9017, "end_char": 9030, "source": "ner", "metadata": {"in_sentence": "C. I./73\n\nSingh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence.", "canonical_name": "Mahabir Singh"}}, {"text": "Ranmast Singh", "label": "OTHER_PERSON", "start_char": 9032, "end_char": 9045, "source": "ner", "metadata": {"in_sentence": "C. I./73\n\nSingh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence."}}, {"text": "Jagdish Bahadur Singh", "label": "OTHER_PERSON", "start_char": 9050, "end_char": 9071, "source": "ner", "metadata": {"in_sentence": "C. I./73\n\nSingh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence."}}, {"text": "Mahabir", "label": "OTHER_PERSON", "start_char": 9431, "end_char": 9438, "source": "ner", "metadata": {"in_sentence": "The cycle and a jhola belonging to the deceased and lying on the spot was sent home by Sheela Devi (P.W. 1) through one Mahabir.", "canonical_name": "Mahabir Singh"}}, {"text": "Sheela Devi", "label": "OTHER_PERSON", "start_char": 9440, "end_char": 9451, "source": "ner", "metadata": {"in_sentence": "Sheela Devi also sent for her mother ( Smt."}}, {"text": "Sundari Devi", "label": "OTHER_PERSON", "start_char": 9484, "end_char": 9496, "source": "ner", "metadata": {"in_sentence": "Sundari Devi) through the same man."}}, {"text": "District Hospital, Pratapgarh", "label": "ORG", "start_char": 9648, "end_char": 9677, "source": "ner", "metadata": {"in_sentence": "The mother arrived soon thereafter and Suresh Singh was taken on an ekka io Diwan Mau from where he was taken in a taxi to the District Hospital, Pratapgarh."}}, {"text": "Pipari", "label": "GPE", "start_char": 9756, "end_char": 9762, "source": "ner", "metadata": {"in_sentence": "Suresh Singh appears to have expired on hls way to the hospital near village Pipari."}}, {"text": "Kotwali", "label": "GPE", "start_char": 9912, "end_char": 9919, "source": "ner", "metadata": {"in_sentence": "The doctor on examining Suresh Singh informed Sheela Devi that her father had already died and advised her to lodge a report at the Police Station, Kotwali."}}, {"text": "Kotwali police station", "label": "ORG", "start_char": 10031, "end_char": 10053, "source": "ner", "metadata": {"in_sentence": "Ka-1) at the hospital and along\\ with the dead biody, went to Kotwali police station where she handed over the written report the same night at about 11.30 p.m. on the basis of which Ka-18."}}, {"text": "ss. 302", "label": "PROVISION", "start_char": 10204, "end_char": 10211, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10227, "end_char": 10232, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kandhai", "label": "GPE", "start_char": 10314, "end_char": 10321, "source": "ner", "metadata": {"in_sentence": "302/147 /148/ 149, I.P.C. was thereupon registered and all the relevant papers sent to the police station Kandhai."}}, {"text": "s. 379", "label": "PROVISION", "start_char": 10442, "end_char": 10448, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 10459, "end_char": 10465, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10467, "end_char": 10472, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sadhy", "label": "OTHER_PERSON", "start_char": 11503, "end_char": 11508, "source": "ner", "metadata": {"in_sentence": "Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh."}}, {"text": "Nankoo", "label": "OTHER_PERSON", "start_char": 11513, "end_char": 11519, "source": "ner", "metadata": {"in_sentence": "Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh."}}, {"text": "Munna", "label": "OTHER_PERSON", "start_char": 11566, "end_char": 11571, "source": "ner", "metadata": {"in_sentence": "Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh."}}, {"text": "Sheo Prat•p Singh", "label": "OTHER_PERSON", "start_char": 11591, "end_char": 11608, "source": "ner", "metadata": {"in_sentence": "Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh.", "canonical_name": "Shiva Pratap Singh"}}, {"text": "Diwan Mau", "label": "OTHER_PERSON", "start_char": 12287, "end_char": 12296, "source": "ner", "metadata": {"in_sentence": "Her mother came there and after arranging for an ekka, Suresh Singh was taken to Diwan Mau from where Suresh Singh was taken to the hospital in a taxi."}}, {"text": "Sadar Police Station", "label": "ORG", "start_char": 12515, "end_char": 12535, "source": "ner", "metadata": {"in_sentence": "by the doctor to make a report in the Sadar Police Station."}}, {"text": "Paras Nath", "label": "WITNESS", "start_char": 12691, "end_char": 12701, "source": "ner", "metadata": {"in_sentence": "Paras Nath, accused, according to P.W. 1, had taken away with him the gun and the cartridge belt belonging to the deceased."}}, {"text": "Sarvashri Ram Pratap Singh", "label": "OTHER_PERSON", "start_char": 12956, "end_char": 12982, "source": "ner", "metadata": {"in_sentence": "According to her, Sarvashri Ram Pratap Singh, Krishnapal."}}, {"text": "Krishnapal. Singh", "label": "OTHER_PERSON", "start_char": 12984, "end_char": 13001, "source": "ner", "metadata": {"in_sentence": "According to her, Sarvashri Ram Pratap Singh, Krishnapal."}}, {"text": "Ran1esh Prasad Singh", "label": "OTHER_PERSON", "start_char": 13003, "end_char": 13023, "source": "ner", "metadata": {"in_sentence": "Singh, Ran1esh Prasad Singh and Ruddar Pratap Singh, Vakils, live in the neighbourhood of her village."}}, {"text": "Ruddar Pratap Singh", "label": "OTHER_PERSON", "start_char": 13028, "end_char": 13047, "source": "ner", "metadata": {"in_sentence": "Singh, Ran1esh Prasad Singh and Ruddar Pratap Singh, Vakils, live in the neighbourhood of her village."}}, {"text": "Shiva Pratap Singh", "label": "WITNESS", "start_char": 14068, "end_char": 14086, "source": "ner", "metadata": {"in_sentence": "It appears that after the examination of P.W. 1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not bieing produced as witnesses by the prosecution."}}, {"text": "Ranmast Singh", "label": "WITNESS", "start_char": 14088, "end_char": 14101, "source": "ner", "metadata": {"in_sentence": "It appears that after the examination of P.W. 1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not bieing produced as witnesses by the prosecution."}}, {"text": "Jagdish Bahadur Singh", "label": "WITNESS", "start_char": 14106, "end_char": 14127, "source": "ner", "metadata": {"in_sentence": "It appears that after the examination of P.W. 1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not bieing produced as witnesses by the prosecution."}}, {"text": "s. 540", "label": "PROVISION", "start_char": 14367, "end_char": 14373, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 540", "label": "PROVISION", "start_char": 14644, "end_char": 14655, "source": "regex", "metadata": {"statute": null}}, {"text": "July 9, 1969", "label": "DATE", "start_char": 14857, "end_char": 14869, "source": "ner", "metadata": {"in_sentence": "The said witnesses were in these circumstances discharged by the trial court on July 9, 1969."}}, {"text": "sections 307, 323", "label": "PROVISION", "start_char": 17578, "end_char": 17595, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 107", "label": "PROVISION", "start_char": 17620, "end_char": 17632, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramendra", "label": "RESPONDENT", "start_char": 17739, "end_char": 17747, "source": "ner", "metadata": {"in_sentence": "P.C.were pending :tt the time of occurrence between the deceased on the one hand and the accused Ramendra and his family on the other.", "canonical_name": "Ramendra Pratap Singh"}}, {"text": "lnder Singh", "label": "WITNESS", "start_char": 18628, "end_char": 18639, "source": "ner", "metadata": {"in_sentence": "P.W. lnder Singh has stated that the witnesses have been pres surised not to come."}}, {"text": "Ramendra Pratap Singh", "label": "RESPONDENT", "start_char": 19427, "end_char": 19448, "source": "ner", "metadata": {"in_sentence": "Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein.", "canonical_name": "Ramendra Pratap Singh"}}, {"text": "November 1, 1967", "label": "DATE", "start_char": 19752, "end_char": 19768, "source": "ner", "metadata": {"in_sentence": "Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein."}}, {"text": "Ramendra Pralap Singh", "label": "RESPONDENT", "start_char": 19774, "end_char": 19795, "source": "ner", "metadata": {"in_sentence": "Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein.", "canonical_name": "Ramendra Pratap Singh"}}, {"text": "Raghav Pratap Singh", "label": "OTHER_PERSON", "start_char": 19943, "end_char": 19962, "source": "ner", "metadata": {"in_sentence": "Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein."}}, {"text": "Krishna Pr<(tap Singh", "label": "RESPONDENT", "start_char": 20100, "end_char": 20121, "source": "ner", "metadata": {"in_sentence": "Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.\n\nExhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun\n\nof his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein."}}, {"text": "Lacerated wound", "label": "RESPONDENT", "start_char": 21638, "end_char": 21653, "source": "ner", "metadata": {"in_sentence": "Lacerated wound l\" x t\" skin deep on the web between\n\nthe right thumb and index finger."}}, {"text": ".Sachendra Pratap Singh", "label": "WITNESS", "start_char": 24877, "end_char": 24900, "source": "ner", "metadata": {"in_sentence": "Sheela Devi and P.W. 2, .Sachendra Pratap Singh, who are the daughter and son of Suresh Singh, can bie believed\"."}}, {"text": "Shil\\i Devi", "label": "WITNESS", "start_char": 25410, "end_char": 25421, "source": "ner", "metadata": {"in_sentence": "Shil\\i Devi, and P.W. 2, Schendra Pratap-Singh."}}, {"text": "Schendra Pratap-Singh", "label": "WITNESS", "start_char": 25435, "end_char": 25456, "source": "ner", "metadata": {"in_sentence": "Shil\\i Devi, and P.W. 2, Schendra Pratap-Singh."}}, {"text": "s. 497A", "label": "PROVISION", "start_char": 26397, "end_char": 26404, "source": "regex", "metadata": {"statute": null}}, {"text": "Sheo Pratap Singh", "label": "OTHER_PERSON", "start_char": 26418, "end_char": 26435, "source": "ner", "metadata": {"in_sentence": "P.C. to Sheo Pratap Singh son of Birju Singh who had been examined by the High Court on May 11, 1970, calling upon him to show cause why he should not be prosecuted for perjury for having falsely stated that he did not live in village Isanpur and that he did not know the accused persons.", "canonical_name": "Shiva Pratap Singh"}}, {"text": "Birju Singh", "label": "OTHER_PERSON", "start_char": 26443, "end_char": 26454, "source": "ner", "metadata": {"in_sentence": "P.C. to Sheo Pratap Singh son of Birju Singh who had been examined by the High Court on May 11, 1970, calling upon him to show cause why he should not be prosecuted for perjury for having falsely stated that he did not live in village Isanpur and that he did not know the accused persons."}}, {"text": "May 11, 1970", "label": "DATE", "start_char": 26498, "end_char": 26510, "source": "ner", "metadata": {"in_sentence": "P.C. to Sheo Pratap Singh son of Birju Singh who had been examined by the High Court on May 11, 1970, calling upon him to show cause why he should not be prosecuted for perjury for having falsely stated that he did not live in village Isanpur and that he did not know the accused persons."}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 26728, "end_char": 26732, "source": "ner", "metadata": {"in_sentence": "On appeal in this Court Mr. Rana appearing on behalf Otf the Sta'te of Uttar Pradesh has submitted that the High Court has gone seriously wrong in acquitting the accused persons merely on the grormd of absence of corroboration of the evidence of P.Ws 1 and 2 when it had itself held that there was nothing improbable in the statements of these witnesses."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 26771, "end_char": 26784, "source": "ner", "metadata": {"in_sentence": "On appeal in this Court Mr. Rana appearing on behalf Otf the Sta'te of Uttar Pradesh has submitted that the High Court has gone seriously wrong in acquitting the accused persons merely on the grormd of absence of corroboration of the evidence of P.Ws 1 and 2 when it had itself held that there was nothing improbable in the statements of these witnesses."}}, {"text": "Nuruddin Ahmad", "label": "WITNESS", "start_char": 28033, "end_char": 28047, "source": "ner", "metadata": {"in_sentence": "has resulted in gross failure of justice In reply, Mr. Nuruddin Ahmad has with his usuc1l pasuasiw eloquence criticised the evidence of the two eye-witnesses, P.Ws\n\n1 and 2."}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 30737, "end_char": 30754, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Tripathi", "label": "WITNESS", "start_char": 31215, "end_char": 31223, "source": "ner", "metadata": {"in_sentence": "A suggestion was put to P.W. 2, the son of the deceased, and to Head Constable Tripathi, P.W. 10, that the report had beerl lodged b.Y P. W. 1 after consulting Bhagwati Prasad but this suggestion was denied by q1em."}}, {"text": "Bhagwati Prasad", "label": "WITNESS", "start_char": 31296, "end_char": 31311, "source": "ner", "metadata": {"in_sentence": "A suggestion was put to P.W. 2, the son of the deceased, and to Head Constable Tripathi, P.W. 10, that the report had beerl lodged b.Y P. W. 1 after consulting Bhagwati Prasad but this suggestion was denied by q1em."}}, {"text": "section 479A", "label": "PROVISION", "start_char": 33336, "end_char": 33348, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPRDIE COl", "label": "WITNESS", "start_char": 34925, "end_char": 34936, "source": "ner", "metadata": {"in_sentence": "Indeed this observation ignores and to\n\n326 SUPRDIE COl."}}, {"text": "sec. 367", "label": "PROVISION", "start_char": 36774, "end_char": 36782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 37022, "end_char": 37028, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_328_347_EN", "year": 1973, "text": "STATE OF U.P.\n\nIFTIKHAR KHAN & ORS ..\n\nJanuary 15, 1973\n\n[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nConstitution of India, 1950, Art. 136-Appeal against acqw'rtl by .-special leave-Power of the Supreme Court.\n\nIndian Penal Code (Act 45 of 1860), ss. 34-\n\nCriminal law-Practice and Procedure-Duty examine all wi'tntsses.\n\nScope of.\n\nof Prosecution\n\nI{)\n\nSentence-Murder-When accused may be sentenced to imprisonmen for life.\n\nOn the day the deceased was murdered. the four accused-two of whom were bitterly inimical to the deceased, the other two beilng their .close associates came k>gether in a body to the shop of deceased.\n\nTwo of the accused, who had pistols, shot at the deceased. The other two had lathis. No overtact was attributed to them, but there was nothing to suggest that they did not know that their associates had the pisk>ls.\n\nAfter the shooting, all the four accused ran away together when an alarm was raised. Two brothers of the deceased, were eye witnesses •to the occurrence and ac'cording to them there were three other persons who witnessed the occurrence. Tilose three peI\"SCllns however filed affidavits in the Committing Court that they had seen notliing and hence they we're not examined as witnesses for the prosecution. According to one of the eye-witnesses the affidavits were false aind those persons filed them because they were afraid of the accused. One of the\n\naccused pleaded alibi and examined defence wit:aesses, but that evidence did not rule out the possibility of the particular accused being present at the sceno of occurrence, and in fact did not crea.te 911>y reasonable doubt in favour of that accused.\n\nThe trial eoort . accepted the evidence of the two eye witnesses. The two accused who took part in the shooting were convicted under s. 302, I. P. C. and sentenced to death. The other two were convicted under ss. 302 and 34, I.P.C. and were se:ntenced to imprisonment for life.\n\nThe High Court dealing with the matter in appeal as well as under s. 374, Cr. P.C., rejected the evidence of the two eye witnesses characterising them as partisan witnesses.\n\nAllowing the appeal to this Court,\n\nHELD : (I) The approach of the High Court t<> the evidence of the eye witnesses was erroneous.\n\n[335CJ\n\n(a) The High Court did not give a specific finding o.n the plioa ot aUhi of the coneemed accused.\n\n[337D-EJ\n\n(b) It did not consider whether there were any discrepancies in the H evidence of the two eye-witnesses, and whether their evidence sounded true and genui1ne, but rejected the evidence merely on the ground that were brothers of the ceased and hence were partisan or interested witnesses. [337E-G]\n\n...,\n\nU.P. STATE v. IFTIKAR KHAN (Vaidialingam, J.) 329\n\n(c) It assumed that the evidence of one of them was not acceptable, and therefore the evidence of the other also could not be accepted because the witnesses were brothers. [336HJ\n\n(2) J, n appeals against acquittal by special leave under Art. 136, this Court has power to interfere with findings of fact, no distinction being made between judgments of acquittal and conviction, but thi• Court will not <irdinarily interfere with the appreciation of evidence or with lhndings of fact unless the High Ccurt has acted perversely\n\nQI' otherwise improperly on grounds which ore plainly untenable or there has b, een a grave miscarriage of_ justice, and the view taken by the High Court 'is clearly unreasonable on the evidence on record. In a reference made by the Sessions Courti under s. 374, Cr. P. C., for cotnfirrnatiQn of the sentence of death passed by it, there is a duty on the High Court to independently consider the matter carefully and examine all relevant and material circum.stances; but if the High Court reverses the decision of the trial court on grounds which are pla'inly faHacious and untenable, -and grave t!justiCe has been done, this Court will interfere with the order of the High Court. [335B-C, F-HJ\n\nMa.valti v. State of U.P., [1964] 8 S.C.R. 133, Himachal Pra6.esh Administration v. Om Prakosh, A.LR. 1972 S.C. 975 and State of Uttar Pradesh v. Saman Doss Criminal Appeal No. 17 of 197! declded on 11-1-1972 followed.\n\n(3) For invoking s.34, I.P.C. against an accused prior concert or a pre-arranged plan has to be established. But as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant circumstans. The section \\\\ill be attracted if it is established that the criminal act has been done by any one of the accused persons in furtherance of the common intention.\n\nA common intetntion-a meeting of minds-to commit an offence and participation in the commission of the offen~ 'in furtherance of that common intention invite the application of the section.\n\nBut participation need lOOt in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offen~ of the offenders sought to be rendered liable on th~ principle of joint liability may be necessary, but it is not necessary, to attract the section, that any overt act must be dlY, ne by the particular accused who was present. [344-C; 345 A-Ill\n\nIn the c'ircumstances of this Case, the accused with the Iathis must be held to be guilty under s. 302 read withs. 34 I.P.C. [344-HJ\n\nPandurang, Tukia and Bhi/lia v. The State of Hyderabad, ll955J S.C.R. 1083, Krishna Govind Patil v. State of Maht; rashrra, (1964] 1 S.C.R. 678 and Jaikrishnadc.s Manohardas Desai and Anotht?lr v.\n\nG The State of Bomba, v, [1960) 3 S.C.R. 319 followed.\n\nMahbub Shah v. King-Emperor, [1945] L.R. 72 I.A. 148 and Barandra Kumar Ghose v. The King Emperor, [1924] L.R. 52 I.A. 40 applied.\n\n( 4) Otdinarily, it 'is the duty of the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case of the prosecutio:i.\n\nBut no purpose. would have been served in the prese; nt case by insisting on the prosecution examining the othell! as witnesses, in view of the affidavits filed by them. [3380-B, HJ\n\nHabeeb Mohammad v. The State of Hyd\"abad, [1954] S.C.R. 47:; A and Sahai Rcmi & Others v. The State of U.P. Criminal Appeal No. 131 of 1969 decided on 17-11-1972 followed.\n\nStaphen Senevirathe v. The King, A.LR. 1936 P .C. 289, applied.\n\n(5) Since more than 4 years had passed since the sent<;>ee of death was passed and in between, there was an acquittal by the High Court, interests of justice would be served by sentencing the accused to impri- 8 sonment for life. [347A-Cl\n\nCRIMI'>AL APPELLATE JURISDICTION : Cr. Appeal No. 252 of 1969.\n\nAppeal by special leave from the judgment and order dated 8th May 1969 of the Allahabad High Court in Criminal Appeal c No. 199 of 1969.\n\n0. P. Rand, for the appellant.\n\nVimal Dave, for respondents Nos. 1 & 3.\n\nC. B. Agarwa/a, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J.-This appeal, by special leave, by the State of U.P. is directed against the judgment and order dated 8-5-1969 in Criminal Appeal No. 199 of 1969 (Referred No. 21 of 1969) allowing the appeal of the four accused, respondents herein. ap<l set'in~ a~; de the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under sections 302 and 302 read with 34 I.P.C.\n\nThe four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikande:· Khan on October 16. 1967.\n\nAfter the filing of this appeai, the second respondent, Ishitiaq Khan is reported to have been murdered and hence the appeal as against him has become infruC'tUOUS.\n\nIn this appeal by the State, we are at present concerned only with Iftikhar Khan. son of Mohammad Hasan, Anwar Khan, son of Mohammad Hussan Khan and Syeed Khan, son of Refiq Hussain Khan, who are respondents one, three and four respectively.\n\nThe prosecution case was as follows :\n\nAll the respondents and the deceased, Sikander Khan, are residents of village Garni Chand. Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associate~.\n\nAbout two years or so. prior :<' the murder of Sikander Khan, Aqil Khan, a brother of\n\nrespondents of one and three, was murdered. In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried.\n\nHowever, they were acquitted about ten months prior to this incident. On October 16, 1967, the day on which Sikander Khan was murdered, a case of attempted murder of Ilyas Khan was pending against respondents one and two herein. Both of them had been released on bail about a momh prior to October 16, 1967. Respondents one and three strongly suspected that Sikander Khan was responsible for the murder of their brother, Aqil Khan, though there has been an acquittal by the court in his favour.\n\nOn October 16, 1967, at about 8.30 P.M., Sikander Khan was sitting on a cot in front of hi' >hop and was reading 'Jang Nama'. His brothers, P.Ws one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic. Respondents one and two armed with country made pistols and respondents three and four armed with lathis came in a body to the place where.\n\nSikander Khan was seated. The first and the second respondents fired shots in quick succession at Sikander Khan.. The shots strllCk Sikander Khan in his chest and neck and he fell down dead.\n\nOn hearing the alarm of P.Ws one and two, the neighbours came and saw all the accused running away. Sikander Khan, on receiving the gun-shots died on the spot. The first information report was given by P.W. 1 at about 11.35 P.M. and it was recorded by the Head ConstaMe, P.W. 7. The investigation was taken up by E\n\nP.W. 8.\n\nThe respondents surrendered in court on November 4, 1967.\n\nThe doctor, who performed the postmortem on the body ot Sikander Khan, had given the opinion that the gun-mot injuries on the chest and the neck were individually sufficient to cause death in the ordinary course of nature.\n\nF Respondents one and two were tried for the offence of committing the murder of Sikander Khan under section 302.\n\nThe other two respondents were tried under section 302 read with section 34.\n\nThe respondents three and four pleaded !hat they had been implicated in the case due to enemity. The first respondent, apart from adopting the said plea, further set up an alibi.\n\nG According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967.\n\nIn view of the fact that he was in the hospital on 16-10-1967, the evidence given implicating him in the murder is false. The prosecution mainly relied on the evidence of P. W s 1 and 2, the H brothers of the deceased, to prove its case against the accused.\n\nThe first respondent also examined the doctor of the Bareilly hospital and two nurses working there in support of his plea of alibi.\n\nThe court examined a student nurse working in the same hospital 6-L796Sup.C.I.f' 3 .\n\nas C.W. I. Notwithstanding the fact that P.Ws 1 and 2 were brothers of \"he deceased and as such can be described as partisan witnesses, the learned Sessions Judge accepted their evidence as true.\n\nRegarding the plea of alibi set up by the first respondent, the learned Sessions Judge, after consideration of the evidence of P.Ws 1 to 3 as also the evidence of C.W. 1, held that the said plea cannot be accepted.\n\nThe Court , further held that though the first respondent was operated upon for hydrocele on October 18, 1967, the evidence of the doctor and the nurses of the Bareilly hospital establish that it was possible for the first respondent ta move about and it was further possible for him to be absent frorn the hospital on October 16, 1967. In fact the view of the learned Sessions Judge is that the murder of Sikander Khan had been planned and the first Respondent, in order to create the evidence\n\nof alibi, got himself admitted in the district hospital at Bareilly on the 14th and that he successfully manoeuvred to have the operation originally fixed for October 16, 1967, postponed.\n\nBy so manoeuvring, the first respondent was able to be in the village on October 16, 1967 and, after committing the murder, he went back to the hospital. In this view, the respondents cme and two were convicted under sction 302 and sentenced to death.\n\nThe respondents three and four were also found guilty of murder under section 302, read with section 34 on the finding that they had associated themselves with the other two accuse.d with the common intention of committing the murder of Sikander Khan. However, they were sentenced to undergo imprisonment for life.\n\nAll the four respondents appealed to the High Court challenging their conviction and sentence. There was also the reference for confirmation of the sentence of death of respondents one and two. The main findings of the High Court were as follows :\n\n\"It is not necessary to give details of enmity that existed bet ween the deceased and the accused. Murders appear to be quite common in the area where the parties live and they resort to such crimes. The two eye witnesses, P.Ws 1 and 2, being the brothers of the deceased are partisan witnesses. These two witnesses have not given proper answers when cross-examined on the point whether the first respondent was in the village from 14th October, 1967.\n\nThough there can be some argument whether the first reipondenr was or was not actually in the hospital from the afternoon of October 16, 196-7 till the morning of the next day, yet the evidence shows that he was admitted in the Bareilly hospital on the 14th October and was there on the next day also.\n\nHe was operated on October 18 1967. In view of these facts be could not be in the village on the 14th and 15th October, 1967. Hence the evidence of P.W. 2 to the contrary is false. As P.W. 2 has made a\n\nfalse statement with regard to the presence of the first respondent\n\nU.P. STATE v. !FTIKHAR KHAN (Vaidialingam, J.) 333\n\nin the village on 14th and 15•, h Oc:ober, 1967, his brother, P.W. 1, should also be put in the same category, as it is not proper to believe one brother and disblieve the other. If the ty; o partisan eye wrtnesies, P.Ws 1 and 2, had made a satisfactory statement, the plea of alibi set up by the first respondent has to be viewed with considerable doubt and respondents two and four may not be entitled to the benefit of the said doullt.\n\nAs only two shots had been fired, it was possible for the assailants to escape quickly and the theory of the witnesses making a mistake cannot be excluded. It cannot be stated that respondents three and four had the common intention to commit the murder, as villagers in good faith pass on the road in the mid-night carrying lathi:;. Both respondents two and three Ill.llY have had lathis and it is also likely that they may have accompanied the other two respondents, but they may have done so without any knowledge that fire-arms were being carried to commit the murder of Sikander Khan. If the incident has taken place at night making it clear that all persons must have been acting together, it may be held that common inte11'1ion of all was to commit the murder.\n\nThough it may be that the party of the accused was responsible for the murder, the evidence of the partisan witnesses is not satir.factory and as such all the accused are enti'tled to the benefit of doubt\".\n\nOn behalf of the appellant State, Mr. 0. P. Rana, learned counsel, attacked the judgment of the High Court on the ground that before reversing the conviction and sentence passed on the respondents, and acquitting them, the learned Judges h_ave not adverted to the main evidence relied on by the prosecution and, without recording any finding, have accepted the plea of alibi set up by the first respondent. The order of acquittal has been passed b!y the High Court, according to the learned counsel, on mere conjectures and without any reference to the materials on record.\n\nQuite naturally, he pressed before us the various items of evidence relied on by the learned Sessions Judge for convicting the respondents and which .have not been taken into account by the High Court.\n\nMr. D. Mookerjee, learned counsel for the reipondents one and three, pointed out, what according to him were serious discrepancies in the evidence adduced by the prosecution.\n\nThe counsel urged that though the judgment of the High Court has not elaborately considered and dealt with al! those matters. nevertheless thev must have been in the minds of the learned Judges of the High Court when thev gave the benefit of doubt to the accused and acquitted them. It-was further stressed that the State has not madJ out a case for this Court, in exercise of its powers under Article\n\n136. to interfere with the decision of the High Court acquitting :the accused.\n\nMr. B. R. Aggarwala, learned counsel appearin,11; for the 4th A Respondent, adopted most oi. the general arguments that have been advanced by Mr. Mookerjee. He particularly stressed that the conviction of the 4th Respondent for an offence under section 302 IPC, with the aid of section 34, is not justified, as there is nothing in the evidence to show that, even if the shooting by Respondents 1 and 2 is accepted, the said criminal act was done qy B the said accused in furtherance of the common intention of all four accused. According to him there is no evidence to establish that the criminal act was done in concert or pursuant to a pre' arranged plan. The counsel drew our attention to the evidence of P. W s 1 and 2, which at the most, according to him, only establishes that all the accused came together and that they left the c place at the same time after the shooting waS done by Re>pondents\n\n1 and 2. Those witnesses do not speak of any overt act done by Respondent 4. He further pointed out that in the first information report given by P.W. 1, there is no reference to the 4th Respondent being armed wrth a lathi.\n\nBoth P.Ws 1 and 2 have improved upon this version in the F.l.R. Before the court, they have stated D that Respondents 3 and 4 came armed with lathis.\n\nBut even then, he pointed out, those wrtnesses did not speak of ariy further part played by Respondent 4 except that he was in the company of the other accused. The counsel drew our attei; ition to the decision of the Judicial Committee in Mahbub Shah v. King- Emperor(') as well as the decision of this Court in Pandurang, ll Tukia and Bhil/ia v. The State of Hyderabad(') wherein the ingradients necessary for the application of section 34 of the Indian Penal Code have been laid down. In view of the total lack of evidence to establish that the act was done in furtherance of the common intention of all, the counsel urged that the order of acquittal passed by the High Court in favour of the 4th Respondent F does not require interference.\n\nWe may at this stage mention that the evidence regarding the participation of Respondents 3 and 4, who are tloth stated to have come with Jathis, is the same. Therefore, we will have due regard to the contentions of Mr. Aggarwala, even when the case of the 3rd Respondent is being dealt with by us.\n\nWe will later refer to the various aspects that were pressed before us by the learned counsel for the accused.\n\nIt must be stated that in view of the approach made by the High Court, by not considering the various items of evidence and recording suitable findings, both the learned counsel found consi- H derable difficulty in supporting the judgment of the High Court,\n\n(I) [1945] L.R. 721.A. 148. • ,_, 1\n\n(2) [J955J S.C.R .. t083 ..\n\nthough it must be stated in fairness to them that they tried their very best to do so.\n\nWe have earlier broadly indicated the views expressed bi}' the High Court.\n\nIt must be remembered that the High Court was dealing, apart trom an appeal by the convicted accused, also with a reference made by the learned Sessions Judge under section 3-7 4, Criminal Procedure Code, for confirmation of the sentence of death passed on respondents one and two for an offence of murder.\n\nAs pointed out by this court in Masalti v. State of U.P., (') under such circumstances there was a duty on the High Court to independently consider the matter carefully and to examine all relevant and material circumstances.\n\nA perusal of the judgment of the High Court gives the unfortunate impression that this principle has not teen borne in mind.\n\nBefore we reler to the evidence on record as well as the con tentions of Mr. Mookerjee, it is desirable to clear the ground regarding the powers. of this Court under article 136 to interfere with the orders of acquil'lal passed by the High Court. It has been strenuously pressed before us by Mr. Mookerjee that unless the conclusion reached by the High Court is such that no Tribunal will come to, this Court will not interfere with the order of acquittal. while exercising power under Article 136. It is true that this Court will interfere in the circumstances mentioned by Mr.\n\nMookerjee. but that is not the only circumstance under which interference will be warranted. There are several other circumstances under which interference may and has been made by this Court.\n\nWe will refer to some of those circumstances presently.\n\nIt is now well established !hat in appeals against acquittal by special leave under Article 136, this Court has no doubt powers to interfe•e with findings of fact, no distinction being made bet ween judgments of acquittal and conviction.\n\nIt has also been held that this. Court will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court has acted perversely or otherwise improperly or there has been a grave miscarriage of justice. It has been further held that where this Court found that grave injustice has been done by the High Court on grounds which are plainly untenable and the view taken by the High Court is clearly unreasonable on the evidence on record. a case for interference is made out.\n\nThe recent decisions of this Court on this aspect laying down the above principles are to be found in Him11chal Pmdrsh Administration v. Om Prakas/1(') and State of Uttar Pradesh v. Samman Dass.(')\n\n(1) (1964] fA) S.C.R. 1)3,\n\n(2) A.J.R.1972 S.C. 975.\n\n(3) Crim•nal Appeal No. 17of1971 decided on'll1·1972.\n\nBearing in mind the above principles, we will now refer to the material evidence on record.\n\nThe evidence of P .W. 1, brother of the deceased, is to the following effect:-\n\n' He first narrated the reasons for the enmity between the accused and Sikander Khan. At about 8.30 P.M. on October 16, 1967, his brother, the deceased Sikander Khan, was sitting opposite to his shop and reading 'Jang Nama'. P.W. 1 and his brother, P.W. 2, were also wrth the deceased listening to the reading of the epic.\n\nSuddenly the four accused came together to the place where Sikander Khan was sitting. The respondents one and two, who were armed with pistols, fired a shot each at Sikander Khan. The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead. When respondents three and four came with the other accused, they had lathis with them. After the shooting, all the accused ran away.\n\nHe gave the first information report at about 11.35 P.M. which was record ed by P.W. 7 .. The evidence of P.W. 2 is also substantially to the same effect. Surprisingly, P .Ws 1 and 2 have not been crossexamined, when they spoke of enmity between Sikander Khan and the accused. ·\n\nIn the first. information report, after referring to the murder of Aqil Khan and other matters, P .W. 1 has substantially stated E about the occurrence as mentioned by him in the witness box.\n\nHe referred to the presence of his brother, P.W. 2, as also the villagers referred to in his evidence as having come to the scene immediately after the. shots were fired.\n\nIt is no doubt true that both P.Ws 1 and 2 are the brothers of the deceased. This aspect has been taken into account by the learned Sessions Judge and he has considered their evidence to be truthful.· But whrn we come to the High Court, there is neither an analysis nor proper consideration of the evidence of these two eye witnesses.\n\nThe. learned judges of the ffigh Court stated that they are partisan witnesses. True it is that they are partisan wit\n\nnesses being the brothers of the deceased. The reason given by the High Court for rejecting the evidence of those witil;:sses is that' P.W 2 has made a false statement with regard to the presence or . absence of Iftikhar Khan in the village on the 14th and 15th October, 1967. It is the further view of the High Court that when the evidence of P.W. 2 is not being accepted, the evidence of P. W. 1 also cannot be accepted, as both brothers must be placed in the same category. This line of easoning, in our opinion, is erroneous.\n\n1 •\n\nU.P. STATE v. !FTlKHAR KHAN (Vaidialingam, J.) 337\n\nThe plea of alibi set up by the first respondent will be considered by us later. But it is necessary to refer to 'the answers given m the cross-exarnmauon of P.Ws l and 2 to consider whether the approach made by the High Court for rejecting their evidence is juscified.\n\nWe find tha't the cross-examination of these two witnesses is very scanty. The only suggestion made to P. W. l was whether Ittikhar Khan had been aamitted to some hospital at Bareilly on the day of occurrence, namely, Octobier 16, 1967.\n\nHis answer was th.at the suggestion is not correct. There is no further question put to this witness regarding the respondent one having been admitted in the hospital, the duration of his stay in the hospital or his discharge from the hospital. P.W. 2 in crossexamination has stated that he had seen lftikhar Khan all along in the village on the day of occurrence and for three or four oays before the occurrence.\n\nThis must be the answer obviously to a question whether the witness had seen Iftikhar Khan in the village on the day of the occurrence and also during the three or four days before October 16, 1967. No further questions have been put to this witness. It is on the basis of the answer given by, P.W. 2 that the High Court has rejected, not only his evidence but also the evidence of P.W. 1. In our opinion, the approach made by the High Court is erroneous, especially when we do not find any positive finding by !he court that the first respondent was in the hospital on October 16, 1967. The High Court's rejection of their evidence has been substantially on the ground that, they being the brothers of the deceased, were partisan witnesses and, therefore, their evidence is unworthy of credence.\n\nHere again, the learned Judges have committed an error. It is no doubt true that when the court has to appreciate the evidence given by witnesses who are partisan or interested, it has to be very careful in weighing their evidence.\n\nSome of the points to be taken into account will be whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is true. In our opinion, it is unreasonable to reject the evidence given by the witnesses merelv on the ground that they are partisan or interested witnesses.\n\nJudicial approach has to be very cautious in dealing with such evidence. The Hih Court has not given due c~si<tera\n\ntion to these aspects also when rejecting fhe evidence of P.Ws 1 and 2: This also answers the contentions of Mr. Mookerjee that the evidence of P.Ws I and ?.. who are partisan wf!nesses, bas been rightly rejected h'y the High Court.\n\nMr. Mooketjee next pointed out that the non-exami11ation bv the prosecution of the nerson~ mentioned in the first information report and who. according to the prosecution, have seen the occurrence, must have weighed with the High Court in rejecting the interested testimony of P.Ws 1 and 2.\n\nHe further stressed \"that there was a duty on the part of the prosecution to have examined those persons who have witnossed the occurrence irrespective of the nll!ture of the evidence that they may give before the court.\n\nOn the other hand, he pointed out that those persons, who can be called independent witnesses, have been kept back and only the brothers of the deceased have been examined and the prosecution must bear the consequences of such evidence not having been accepted by the court.\n\nThe counsel further urged that the non-examination of those per5ons, mentioned in the first information report, who have seen the occurrence, has prejudiced the accused and, therefore, theit conviction, by the trial court, based merely on the testimony of P. W s 1 and 2, who are none else than the Qi-others of. the dei; eased, cannot be considered to have been arrived at after a fair trial.\n\nIt is no doubt true that, as pointed out by this Court in Habeeb Mohammad v. The State of Hyderabad(!), it is the duty oE the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case of the prosecution. In the said decision, the observations made to the same effect by the Judicial Commilltee in Stephen\n\nSeneviratne v. The /(ing( 2 ) have been quoted with approval.\n\nTo a similar effect is also the recent decision in Sahaj Ram &\n\nOthers v. The State of U.P.(8).\n\nAfter giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular circumstances of this case, there was justification for the non-examination of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. • From the evidence of the investigating officer, P.W. 8, it is seen that the statements were recorded by the police from the above persons on the morning of October 17. 1967. P.W. 1 in his chiel examination had stated that Laddan Khan, Babban Khan and Ibne Hasan had seen the murder of his brother, Sikander Khan.\n\nIt is his further evidence that though they had seen the murder, yet due to fear of the accused persons they had filed a false affidavit on April 16, 1968, before the Committing Magi.~ ttate that they had seen nothing. So far as we could see, there is no cross-examination of P.W. 1 on this point. When these three persons had filed affidavits before the Committing MagiStrate that they bad seen nothing, it serves no purpose to insist on the prose-\n\n-mit9\"4J S.C.R. 4,5.\n\n(2) A.I.R. 1936 P.C. 289. (3l Criminal ~No. 131 of 1969 decided on 17·11·1972.\n\ncution examining them as witnesses.\n\nSo far as Munnan Khan is concerned, he is the uncle of P.Ws I and 2 and the deceased and the evidence of P.Ws I and 2 is that he came running to the scene when an alarm was raised.\n\nHis evidence would not have carried the matters further because he had come only after the actual shooting had taken place. His evidence is not essential to the unfolding of the prosecution case; and as much he was not a material witness.\n\nTherefore, this criticism regarding the non-· examination of the said four persons has to be rejected.\n\nThe main plea of the first respondent was that on the date of the occurrence he was in the Bareilly hospital and, therefore, the evidence of the prosecution witnesses regarding his participation in the murder is false. All the four accused surrendered b, efore the Magistrate on November 4, 1967. On the said date, the first respondent filed a statement before the Magistrate to the effect tha<t on the date, when the murder is alleged to have taken pface, namely, October 16, 1967, he was already in the District hospital, Bareilly from October 14, 1967 to Oc'lober 31, 1967, and that he was also operated upon for hydrocele in the meanwhile. According to him, he was in the hospital durin11: the entire period from October 14, 1967 to October 31, 1967. If 'this is established. there can be no doubt that his acquittal by the High Court will be justified. Again if he was in the hospital on October 16, 1967. the evidence given by the witnesses regarding the participation in the crime of nat only the fi.rst resvondent but also of the other respondents. will have to be viewed with greater care and caution i.e. whether their evidence can be considered to be true even rearcling the participation of resnondents two to four.\n\nBut the question is whether on the evidence it can he helri that the first respondent was in the hospital on October 16. 1967.\n\nIn support of his plea of alibi, the first respondent had examined the Medical Officer, D.W. 1, and two nurses, D. Ws 2 and 3 working in the said hospital.\n\nAs the name of another person was also mentioned by D.Ws 2 and 3, as having been working in the hospital in the particular ward on the relevant date. the learned Sessions Judge has examined the said person as C.W. 1.\n\nD.W. 1 no doubt refers to the first respondent havin!l' been admitted as an indoor patient in the district hospital, Bareilly. on October 14, 1967. But he has stated that the operation of the\n\naid accused for hydrocele. which had been fixed originally on October 16. 1967. did not tal.; e rtace and that he was actl'allv operated on October 18, 1967. But the point to be noted from the evidence of this witness is that he canot say on oath that on\n\nOctober 16, 1967, the fifS't respondent was present in the hosphal all along. He has also stated mat on Octooer 16, 1967, the first respondent might have been in a frt pos111on to move about and that there is no signature of the said accused in the, records of the hospital on October 16, 1967. D.W. 2 claims to be the sister-incharge of the hospital on October 16, 1967. She has stated that she was on duty from 7.00 A.M. to 12.00 A.M. and again from 4.00 P.M. to 8.00 P.M. on October 16, 1967. It ls her further evidence that she can say from memory that on October 16, 1967, the first respondent, Iftik:har Khan, whom she is able to recognise\n\nD \"\n\nby sight, was in the hospital. 111 view of this statement, quite naturally, she was very severely cross-examined 1fy the prosecution.\n\nShe had admitted in cross-examination that there is n0- C record to say that she was on duty in the hospital on October 16,\n\n1967 and that there is also no record to show that she counted the patients and satisfi,!Od herself that the first respondent was in the hospital. Even in cross-examination she has stated that she counted the number of patients at 4.00 P.M. on October 16, 1967, in the presence of CW 1.\n\nBut she is prepared to admit that the operation, which was scheduled to take place on October 16, 1967, was postponed because the operation fee was not paid by the first respondent. She has wound up her evidence by stating that all the answers given by her on December 18, 1968, regarding the presence of the first respondent in the hospital on October 16,\n\n1967, were from her memory. To a specific question by the Court, this witness bas further stated that it is only on the basis of memory that she was saying that she took charge of the patients on October 16, 1967, at 4.00 P.M. along with the student nurse, Sharma, CW I. She bas admitted that in the 'Da)' and Night' register, which appears to have teen produced before the court, it has not been noted that CW 1 came on duty at 4.00 P.M. on October 16, 1967.\n\nDW 3, another staff nurse, working in the hospital, has stated that she may have been on duty on October 16, 1967, from 7.00 A.M. to 4.00 P.M. But on seeing the first respondent in the dock. she has stated that she is not sure if the same person was admitted for operation of bydrocele in the hosoital. In fact. in an answer to a auestion out bv tbP. court. she has admitted that she cannot say if the first respondent was in her' ward at any time, even between 7.00 A.M. and 4.00 P.M. on October 16, 1967.\n\nCominq to CW 1, she has categoricallv denied that she was ever out in-cba•ge of the ward on October 16. 1967. and she bas also denied having made anv countinJ! of patients and that at 4.00 P.M. and in the comoanv of DW 2.\n\nShe has also stated that she cannot say il the first respondent was an indcor patient\n\n• B\n\nD •\n\nin the hospital on October 16, 1967. From the above evidence, it is evident that it is onlv DW 2 who has stated that the 1st Respondent-accused was in \"the hospital on October_ 16, 1967, from morning till 8.00 P.M. If he was in the hospital at 8.00 P.M .• it is evident that he could not have been present at the scene of occurrence at 8.30 P.M. That much is accepted by the prosecution .. But the learned Sessions Judge has dis-llieved the evidence of DW 2. Her evidence, as mentioned earlier, is purely a guess work and from memory. There are no records produced from the hospital to corroborate her evidence that the first respondent was in the hospital on October 16, 1967. In fact, CW 1, in whose company the counting of patients is stated to have been done by DW 2, finally contradicts the latter. _ DW 3 does not support\n\nDW 2.\n\nThe High Court, while considering the evidence of the- .\n\nMedical Officer, DW 1, does not express _its opinion as to the truthfulness or otherwise of DW 2 except saying that nurses haveto work at very great speed in the hospitals and that they can also make mistakes. It is a bit difficult to appreciate in what context this observation has been made by the High Court. It is no doubt true that from the evidence of DW 1, the Medical Officer, it is evident that the first respondent was admittd in the hospital on October 14, 1967. Though there is no clear' evidence, one way orthe other, it is very likely that he was in the hospital , also on Octo-- ber 15, 1967. But the evidence of DW 1 is clear to the elfect that he cannot speak of the first respondent having been in the hospital\" on October 16, 1967. DW 3 and CW t did not state that thefirst respondent was in the hospital on Octot,.r 16, 1967. DW 1 is also positive when he says that the operation, which was scheduled to take place on October 16, 1967, was postponed to October 18, 1967. and that the first respondent was in a positiow. to move about on the foriner _ date. These circumstances clearly show that it was possible for the first respondent to be absent from the hospital on October 16,-1967.- None of the witnesses examined by the defence have stated that once a person has been admitted\" to the hospital, he cannot leave the hospital under any circums-- tances till he is discharged. Nor do they say that any particular patient can leave the hospital only with their perrnissicn.\n\nAdmrl'tedly, none of the witnesses spoke about any permission having been asked for on given to the first respondent to be at 1-ent from the hospital. In view of these facts, it is reasonable to infer that because of 1he very minor ailment that the first respondent had, itwas possible for him to leave tlie hospital on October 16, 1967, and to _be absent throughout the day or, at any rate, in the evening .. - To conclude on this aspect, the evidence of the defence witnsses; does not rule out the possitlity of the first respondent being ab-\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll.\n\nsent from the hospital and his being found at the scene of occurrence as spoken to by the eye witnesses.\n\nMr. Mookerjee no doubt urged that the High Court might have been influenced by the fact that the evidence of the defence witnesses creates a lot Q_f doubt about the participation of the first respondent in the crime.\n\nWe are prepared to agree that if the said evidence really raises a reasonable doubt in the mind of the court regarding the participation in the crime by the first respondent. that doubt must be resolved in his favour.\n\nIn this context, it is pertinent to quote the followiag observations in the decisioe in Himachal Pradesh Administration Vs. Om Prakash(') :\n\n\"The benefit of doubt to which the accused is entitled is reasonable dout--'the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind .which fights shy-though unwillingly it may be--or is afraid o.'. the logical consequences, if that benefit was not given; or as one great .Judge said it is 'not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism\".\n\nIn our opinion, the evidence of the defence witnesses does not create any reasonable doubt, even in favour of the first respondent.\n\nIn the case before us, the learned Sessions Judge has convicted the first respondent for an offence under section 302. The 3rd and 4th respondents were convicted under section 302 read with section 34 of the Indian Penal Code for having associated themselves, armed wi'th lathis, wi'th the other accused with the ccmmon intention of committing the murder of Sikander Khan.\n\nThis is the convenient stage to deal with the contention of Mr. Aggarwala, learned counsel for the 4th Respondent, that even if the presence of his client at the time ot the occurrence is proved the evidence has not established that the criminal act was done by Respondents I and 2 in furtherance of the common intention of all the four accused.\n\nAs this relates also to the 3rd Respondent, the question is whether section 34 can be applied in the case of the said two Respondents.\n\nAs we have already indicated, the evidence regarding the participation of Resoondents 3 and 4 is common. Hence, if the contention of Mr. Aggarwala regarding the non-applicabilitv of section 34 with respect to the 4th Respondent is accepted. the same will apply to the 3rd Respondent also.\n\n(IJ A.J.R.1972 S.C.97l.\n\nAs pointed out by the Judicial Committee in Mahbub Shah\n\nv. King-Emperor(\"), to invoke the aid of section 34 IPC it must be shown that the criminal act complained against, was dcne by any one of the accused persons in the furtherance of the common intention of all.\n\nIf this is shown, anyone of the accused persons may be made liable for the crime, in the same manner as if the act were done b!y him alone.\n\nTo convict an accused of an offence, applying section 34, it is necessary to establish that the criminal act was done in concert pursuant to a pre-arranged plan. It is also to be borne in mind that it is difficult, if not impcssible, to procure direct evidence to prove 'the intention of a person. Therefore courts, in most cases, have to infer the intention from the Act or the conduct of a particular person or from the other relevant circumstances of the case. It is also to be remembered, as emphasised by the Judicial Committee, that 'the inference of common intention, within the meaning of the term in section 34, should never be reached unless it is a necessary inference deducible from the circumstances of the case'.\n\nThe above principles have been reiterated by this Court in Pandurang, Tukia and Bhillia v. The State of Hy(ierabad('). It has also been stated in the said decision that there is no special rule of evidence for applying section 34 and \"at bottom, it is a question of fact in every case and however similar the circumstances. facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All 'that is necessl!ry is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis\".\n\nIn Krishna Govind Patil v. State of Maharashtra('), the principle has again been reiterated that before a court convicts a\n\nPerson under section 302 read with section 34, it has to record a definite finding that the said person had prior concert with one or more other persons, armed or unarmed, for committing the said offence. In Jaikrishnadas Manohardas Desai and Another v.\n\nThe State of Bombay(') it has been held that \"the essence of liability under section 34 is to be found in the existen~ of a common intention animating the offenders leadinJ! to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not, on the words of the statute, one of the conditions of its appli-\n\n(I) {1945] L.R. 72 I.A. 148.\n\n(3) {1964] I S.C.R. 678. (2)\n\n11955] S C.R. 1083.\n\n(4) [1960] S.C.R. 309.\n\n344 liUPREME COURT REPORTS\n\n[1973] 3 S.C.R,\n\ni:ability.\" As explained by Lord Sumner in Bilrendra Kumar\n\nGhose v. The King Emperor,\\') ''!he ieadmg feature ol sei:\\ton .34 of the Indian Penal Code 1s participation' m action. To establish joint resp!>ns1b11ity tor an. olfence, it must of course be esta- .blished that a crimmal act was done by several persons; the participation must be 1n doing the act, not merely in its planning. A .common intention-a meeung of minds-to commit an oil'ence .and participation in the commission of the offence in furtherance of iliat common intention mvite the application of section 34.\n\nBut this participation need not in a.11 cases be by physical presence.\n\nIn offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liaWlity may be necessary, but such is not '1he case in respect of, other offences where the offence consists of diverse acts which may be done at different times and places\".\n\nHaving due regard to the various decisions referred to above, the question is whether the evidence in the case before us establishes that the shooting of Sikander Khan by Respondents 1 and 2 was done in furtherance of the common intention of all the four accused. The evidence of PW s 1 and 2 is to the effect that all the four Respondents are residents of the same village and Respondents 1 and 3, who are brothers, are bitterly inimical to Sikander Khan, the deceased. Respondents 2 and 4 are their close friends. There is evidence regarding murder of a brother of Respondent 1 and the acquittal of the deceased after trial in connection with that murder. The evidence is also to the effect that Respon <lents 1 and 2 were on bail at the material time, having been con- 'Victed by the Trial Court in connection with an attempt to murder -one, Ilyas Khan, who was a close associate of the deceased. These facts have not been challenged by the accused in the cross-exami- -nation of PWs 1 and 2. Respondents 1 and 2 armed with pistols\n\nand Respondents 3 and 4 armed with latbis, suddenly came in a 'body through a lane to the place where Sikander Khan was sitting 'and reciting 'Jang Nama'.\n\nRespondents 1 and 2 fired shots in <1uick succession at Sikander Khan who fell down dead. Respon dents 1 and 2 again re-loaded their pistols, but, on PWs 1 alld 2 who were with the deceased, raising an alarm, they ran away firing lihots. All the four accused ran away together.\n\nWhen Resoondents 3 and 4 were examined by the court under section 342. their only answer was that they had been implicated due to enmitv of the witnesses. There is no suggestion to PWs 1 and 2 bv either Respondent 3 or 4 re1?arding any reason or justification for their presence near the deceased at the material time.\n\nYf once the evidence of PWs 1 and 2 i~ accepted, as we are inclined\n\n(I) (t924)\"I..R. S2 I.~. '40, S2.\n\n• -·\n\nto do, the presence of the four accused together at the time of the occurrence stands clearly established. It is true that for invoking section 34 against the accused, prior concert or a pre-arranged plan has to be established. But as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant cic'cumstances. It is in evidence that Respondents 1 and 3 are bitterly inimical to Sikander Khan and that Respondents 2 and 4 are their close associate;.\n\nThere is also evidence abut the murder of the brother of the 1st Respondent and the deceased, llyas Khan and certain others being tried for that offence as also their acquirtal in the said case. The evidence is also furtb.er to the effec.t that the 1st and 2nd Respondents made an attempt to murder Ilyas Khan by shooting him with a pistol some months before the incident.\n\nThe said two accused were prosecuted and convicted biy the Sessions Court. But about twenty days before the murder of Sikander Khan, bCJth Respondents 1 and 2 had been released on bail pending their appeal. It was at that time that this murder took place. These statements made by PWs\n\n1 and 2 have not been challenged by the 3rd _and 4th Respondents.\n\nThere is also no suggestion to the .witnesses that Respondents 1 and 2 had hidden their pistols and they drew them out suddenly when they shot at the deceased. It is no doubt true that there is\n\nno evidence regarding any over tact having been done by Respondents 3 and 4 at the time when Sikander Khan was shot at. It is not necessary, to attract section 34, that any oven act mur.t be done by the panicular accused.\n\nThe section will l1e attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention .\n\nIf this is shown-and in this case we are satisfied that it has been so shown-'the liability for the crime may be imposed on anyone oi.\n\nthe persons in the same manner as if the act were done by him alone.\n\nTheir accompanying Respondents 1 and 2, who were armed with pistols, in the background spoken to by PWs 1 and 2, they themselves being armed with lathis and all the four coming together in a body and running away together in a 1:1ody after the shooting was over, coupled with nq explanation being given for their presence at the scene, lead to the necessary inference of a prior concert and pre-arrangement and that the criminal act was done by Respondents I and 2 in furtherance of the common intention of all.\n\nTherefore, Respondents 3 and 4 will have to be held liable for the crime in the same manner as if the [<Ct were done by any one of them alone.\n\nIn view of the circumstances mentioned above, in our opinion, Respondents 3 and 4 have to be held guilty under section 302 read with section 34.\n\nThe High Court has reversed the finding of conviction on grounds, wn1ch are wholly untenable, The view of the High Court\n\nlLlat the accused must be given the benefit of doubt, is wholly unreaonabile and is not warr!lnted by the materials on record. _ _The High Court, without a proper consideration of the evidence of PWs 1 and 2, has acquitted the accused. The said evidence clearly shows that the first respondent committed the murder of Sikander Khan by shooting him with a pistol. That evidence also establishes, as held by us, the participation oi Respondents 3 and 4 so as to make them liable under section 302 read with section 34. The High Court has stated that the villagers pass on the road at 8.30 PM with lathis and, therefore, there was nothing unusual in the 3rd and 4th Respondents being found with lathis. This is an observation made by the High Court without any reference to the evidence on record. There is a further observation that the said Respondents may have accompanied Respondents Nos. 1 and 2 without any knowledge that they were carrying fire-arms with a view to commit the murder of Sikander Khan. This observation clearly shows that the High Court has not given any consideration to the evidence on record. We have earlier held thqt Respondents 3 and 4 are guilty under section 302 read with section 34 and, therefore, the a.cquittal by the High Court of these Respondents is absolutely unjustified.\n\nThe fact thM the High Court was also dealing with a reference under section 374 of the Code of Criminal Procedure, particularly regarding Respondents 1 and 2, and as such had a duty to appraise the evidence for itself for arriving at its own independent conclusion, does not stand in the way of this Court interfering with the order of the High Court when it reverses the decision of the Trial Court on grounds, which are plainly fallacious and untenable.\n\nThough this Court does not, in an appeal under Article 136. normally reappraise the evidence and interferes with the assessment of that evidence by the High Court, in the case on hand, grave injustice has been done by the High Court interferin~ with the decision of the Trial Court on grounds, which are plainly untenable. The view taken by the High Court is clearly unreasonable on the evidence on hand. Therefore, there is ample justification for this Court interfering with the decision of the High Court.\n\nIn our view, the evidence in this case was sufficient to justify the conviction of the first Respondent for the offence of murder under section 302 and of the 3rd and 4th Respondents for an\n\noffence under section ~02 read with section 34.\n\nThen the question is regarding the sentence. The 3rd and 4th Respondents were sentenced to imprisonment for life by the\n\n' '\n\nU.P. STATE v. IFJIKHAR KHAN ( Vaidialingam, J.) 347\n\nSessions Judge. That sentence will be allowed to stand. The first Respondent, Iftikhar Khan, son of Mohammad Hasan, was sentenced to death by the learned Sessions Judge. Though this is a pre-eminently fit case for the imposition of the sentence of death, the question is whether this Court should impose the said sentence on him now. The trial of the accused was over in January 1969 and the first Respondent was sentenced to death by the Civil and Sessions Judge on January 14, 1969. We are now in 1973. In between, the High Court had acquitted him and set him free.\n\nUnder those circumstances, we are of the view tht the interest of justice would. be adequately met by sentencing him to imprisonment for life for the offence under section 302 l.P.C.\n\nIn the result, we set aside the judgment and order of the High Court acquitting Respondents Nos. l, 3 and 4 and the appeal is allowed.\n\nWe convict the lst Respondent for the offence under section 302 and sentence him to undergo imprisonment for life.\n\nWe further convict the 3rd and 4th Respondents for the offence under section 302 read with section 34 and sentence them to undergo imprisonment for life.\n\nThere will bie no order on the appeal so far as the 2nd Respondent, Ishitaq Khan, son of Mukhtar Khan, is concerned, as it has become infructuous due to his having been murdered during the pendeilcy of the appeal.\n\nV.P.S.\n\nAppeal allowed.\n\n7--L 796Sup.C . I. /7 3", "total_entities": 152, "entities": [{"text": "STATE OF U", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "IFTIKHAR KHAN & ORS", "label": "RESPONDENT", "start_char": 15, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "IFTIKHAR KHAN & ORS", "offset_not_found": false}}, {"text": "January 15, 1973", "label": "DATE", "start_char": 39, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "STATE OF U.P.\n\nIFTIKHAR KHAN & ORS ..\n\nJanuary 15, 1973\n\n[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nConstitution of India, 1950, Art."}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 75, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 115, "end_char": 136, "source": "regex", "metadata": {}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 144, "end_char": 152, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 225, "end_char": 242, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 34", "label": "PROVISION", "start_char": 261, "end_char": 267, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1798, "end_char": 1804, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 302 and 34", "label": "PROVISION", "start_char": 1874, "end_char": 1888, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1890, "end_char": 1895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 374", "label": "PROVISION", "start_char": 2010, "end_char": 2016, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 2961, "end_char": 2969, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 374", "label": "PROVISION", "start_char": 3505, "end_char": 3511, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 8 S.C.R. 133", "label": "CASE_CITATION", "start_char": 3973, "end_char": 3992, "source": "regex", "metadata": {}}, {"text": "11-1-1972", "label": "DATE", "start_char": 4145, "end_char": 4154, "source": "ner", "metadata": {"in_sentence": "declded on 11-1-1972 followed."}}, {"text": "s.34", "label": "PROVISION", "start_char": 4183, "end_char": 4187, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4189, "end_char": 4194, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 5262, "end_char": 5268, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5284, "end_char": 5289, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Pandurang", "label": "PETITIONER", "start_char": 5300, "end_char": 5309, "source": "ner", "metadata": {"in_sentence": "34 I.P.C. [344-HJ\n\nPandurang, Tukia and Bhi/lia v. The State of Hyderabad, ll955J S.C.R. 1083, Krishna Govind Patil v. State of Maht; rashrra, (1964] 1 S.C.R. 678 and Jaikrishnadc.s Manohardas Desai and Anotht?lr v.\n\nG The State of Bomba, v, [1960) 3 S.C.R. 319 followed."}}, {"text": "(1964] 1 S.C.R. 678", "label": "CASE_CITATION", "start_char": 5424, "end_char": 5443, "source": "regex", "metadata": {}}, {"text": "[1960) 3 S.C.R. 319", "label": "CASE_CITATION", "start_char": 5523, "end_char": 5542, "source": "regex", "metadata": {}}, {"text": "L.R. 72 I.A. 148", "label": "CASE_CITATION", "start_char": 5590, "end_char": 5606, "source": "regex", "metadata": {}}, {"text": "L.R. 52 I.A. 40", "label": "CASE_CITATION", "start_char": 5660, "end_char": 5675, "source": "regex", "metadata": {}}, {"text": "17-11-1972", "label": "DATE", "start_char": 6285, "end_char": 6295, "source": "ner", "metadata": {"in_sentence": "131 of 1969 decided on 17-11-1972 followed."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 6754, "end_char": 6774, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated 8th May 1969 of the Allahabad High Court in Criminal Appeal c No."}}, {"text": "P. Rand", "label": "LAWYER", "start_char": 6817, "end_char": 6824, "source": "ner", "metadata": {"in_sentence": "P. Rand, for the appellant.", "canonical_name": "P. Rand"}}, {"text": "Vimal Dave", "label": "LAWYER", "start_char": 6846, "end_char": 6856, "source": "ner", "metadata": {"in_sentence": "Vimal Dave, for respondents Nos."}}, {"text": "C. B. Agarwa", "label": "LAWYER", "start_char": 6887, "end_char": 6899, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, for respondent No."}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 6970, "end_char": 6982, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J.-This appeal, by special leave, by the State of U.P. is directed against the judgment and order dated 8-5-1969 in Criminal Appeal No.", "canonical_name": "VAIDIALINGAM"}}, {"text": "sections 302 and 302 read with 34", "label": "PROVISION", "start_char": 7331, "end_char": 7364, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7365, "end_char": 7370, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sikande:· Khan", "label": "RESPONDENT", "start_char": 7488, "end_char": 7502, "source": "ner", "metadata": {"in_sentence": "ap<l set'in~ a~; de the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under sections 302 and 302 read with 34 I.P.C.\n\nThe four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikande:· Khan on October 16.", "canonical_name": "Sikande:· Khan"}}, {"text": "October 16. 1967", "label": "DATE", "start_char": 7506, "end_char": 7522, "source": "ner", "metadata": {"in_sentence": "ap<l set'in~ a~; de the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under sections 302 and 302 read with 34 I.P.C.\n\nThe four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikande:· Khan on October 16."}}, {"text": "Ishitiaq Khan", "label": "RESPONDENT", "start_char": 7581, "end_char": 7594, "source": "ner", "metadata": {"in_sentence": "After the filing of this appeai, the second respondent, Ishitiaq Khan is reported to have been murdered and hence the appeal as against him has become infruC'tUOUS.", "canonical_name": "Ishitiaq Khan"}}, {"text": "Iftikhar Khan", "label": "RESPONDENT", "start_char": 7758, "end_char": 7771, "source": "ner", "metadata": {"in_sentence": "In this appeal by the State, we are at present concerned only with Iftikhar Khan.", "canonical_name": "IFTIKHAR KHAN & ORS"}}, {"text": "Anwar Khan", "label": "RESPONDENT", "start_char": 7796, "end_char": 7806, "source": "ner", "metadata": {"in_sentence": "son of Mohammad Hasan, Anwar Khan, son of Mohammad Hussan Khan and Syeed Khan, son of Refiq Hussain Khan, who are respondents one, three and four respectively.", "canonical_name": "Anwar Khan"}}, {"text": "Iftikhar Khan", "label": "RESPONDENT", "start_char": 8064, "end_char": 8077, "source": "ner", "metadata": {"in_sentence": "Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associate~.\n\nAbout two years or so.", "canonical_name": "IFTIKHAR KHAN & ORS"}}, {"text": "Anwar Khan", "label": "RESPONDENT", "start_char": 8082, "end_char": 8092, "source": "ner", "metadata": {"in_sentence": "Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associate~.\n\nAbout two years or so.", "canonical_name": "Anwar Khan"}}, {"text": "Sikander Khan", "label": "RESPONDENT", "start_char": 8246, "end_char": 8259, "source": "ner", "metadata": {"in_sentence": "prior :<' the murder of Sikander Khan, Aqil Khan, a brother of\n\nrespondents of one and three, was murdered.", "canonical_name": "Sikande:· Khan"}}, {"text": "Aqil Khan", "label": "OTHER_PERSON", "start_char": 8261, "end_char": 8270, "source": "ner", "metadata": {"in_sentence": "prior :<' the murder of Sikander Khan, Aqil Khan, a brother of\n\nrespondents of one and three, was murdered."}}, {"text": "Ilyas Khan", "label": "RESPONDENT", "start_char": 8395, "end_char": 8405, "source": "ner", "metadata": {"in_sentence": "In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried.", "canonical_name": "Ilyas Khan"}}, {"text": "October 16, 1967", "label": "DATE", "start_char": 8516, "end_char": 8532, "source": "ner", "metadata": {"in_sentence": "On October 16, 1967, the day on which Sikander Khan was murdered, a case of attempted murder of Ilyas Khan was pending against respondents one and two herein."}}, {"text": "Ilyas Khan", "label": "RESPONDENT", "start_char": 8609, "end_char": 8619, "source": "ner", "metadata": {"in_sentence": "On October 16, 1967, the day on which Sikander Khan was murdered, a case of attempted murder of Ilyas Khan was pending against respondents one and two herein.", "canonical_name": "Ilyas Khan"}}, {"text": "Laddan Khan", "label": "WITNESS", "start_char": 9112, "end_char": 9123, "source": "ner", "metadata": {"in_sentence": "His brothers, P.Ws one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic."}}, {"text": "November 4, 1967", "label": "DATE", "start_char": 9897, "end_char": 9913, "source": "ner", "metadata": {"in_sentence": "The respondents surrendered in court on November 4, 1967."}}, {"text": "section 302", "label": "PROVISION", "start_char": 10241, "end_char": 10252, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 10298, "end_char": 10309, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 10320, "end_char": 10330, "source": "regex", "metadata": {"statute": null}}, {"text": "District hospital, Bareilly", "label": "ORG", "start_char": 10560, "end_char": 10587, "source": "ner", "metadata": {"in_sentence": "G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967."}}, {"text": "14-10-1967", "label": "DATE", "start_char": 10594, "end_char": 10604, "source": "ner", "metadata": {"in_sentence": "G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967."}}, {"text": "31-10-1967", "label": "DATE", "start_char": 10608, "end_char": 10618, "source": "ner", "metadata": {"in_sentence": "G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967."}}, {"text": "18-10-1967", "label": "DATE", "start_char": 10687, "end_char": 10697, "source": "ner", "metadata": {"in_sentence": "G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967."}}, {"text": "16-10-1967", "label": "DATE", "start_char": 10751, "end_char": 10761, "source": "ner", "metadata": {"in_sentence": "In view of the fact that he was in the hospital on 16-10-1967, the evidence given implicating him in the murder is false."}}, {"text": "s 1 and 2", "label": "PROVISION", "start_char": 10876, "end_char": 10885, "source": "regex", "metadata": {"statute": null}}, {"text": "Bareilly hospital", "label": "ORG", "start_char": 11012, "end_char": 11029, "source": "ner", "metadata": {"in_sentence": "The first respondent also examined the doctor of the Bareilly hospital and two nurses working there in support of his plea of alibi."}}, {"text": "Bareilly", "label": "GPE", "start_char": 12147, "end_char": 12155, "source": "ner", "metadata": {"in_sentence": "In fact the view of the learned Sessions Judge is that the murder of Sikander Khan had been planned and the first Respondent, in order to create the evidence\n\nof alibi, got himself admitted in the district hospital at Bareilly on the 14th and that he successfully manoeuvred to have the operation originally fixed for October 16, 1967, postponed."}}, {"text": "section 302", "label": "PROVISION", "start_char": 12600, "end_char": 12611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 12623, "end_char": 12633, "source": "regex", "metadata": {"statute": null}}, {"text": "14th October, 1967", "label": "DATE", "start_char": 13527, "end_char": 13545, "source": "ner", "metadata": {"in_sentence": "These two witnesses have not given proper answers when cross-examined on the point whether the first respondent was in the village from 14th October, 1967."}}, {"text": "October 16, 196-7", "label": "DATE", "start_char": 13673, "end_char": 13690, "source": "ner", "metadata": {"in_sentence": "Though there can be some argument whether the first reipondenr was or was not actually in the hospital from the afternoon of October 16, 196-7 till the morning of the next day, yet the evidence shows that he was admitted in the Bareilly hospital on the 14th October and was there on the next day also."}}, {"text": "October 18 1967", "label": "DATE", "start_char": 13870, "end_char": 13885, "source": "ner", "metadata": {"in_sentence": "He was operated on October 18 1967."}}, {"text": "14th and 15th October, 1967", "label": "DATE", "start_char": 13948, "end_char": 13975, "source": "ner", "metadata": {"in_sentence": "In view of these facts be could not be in the village on the 14th and 15th October, 1967."}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 14152, "end_char": 14164, "source": "ner", "metadata": {"in_sentence": "FTIKHAR KHAN (Vaidialingam, J.) 333\n\nin the village on 14th and 15•, h Oc:ober, 1967, his brother, P.W. 1, should also be put in the same category, as it is not proper to believe one brother and disblieve the other.", "canonical_name": "VAIDIALINGAM"}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 15633, "end_char": 15640, "source": "ner", "metadata": {"in_sentence": "P. Rana, learned counsel, attacked the judgment of the High Court on the ground that before reversing the conviction and sentence passed on the respondents, and acquitting them, the learned Judges h_ave not adverted to the main evidence relied on by the prosecution and, without recording any finding, have accepted the plea of alibi set up by the first respondent.", "canonical_name": "P. Rand"}}, {"text": "D. Mookerjee", "label": "OTHER_PERSON", "start_char": 16374, "end_char": 16386, "source": "ner", "metadata": {"in_sentence": "Mr. D. Mookerjee, learned counsel for the reipondents one and three, pointed out, what according to him were serious discrepancies in the evidence adduced by the prosecution.", "canonical_name": "D. Mookerjee"}}, {"text": "Article\n\n136", "label": "PROVISION", "start_char": 16940, "end_char": 16952, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "B. R. Aggarwala", "label": "OTHER_PERSON", "start_char": 17033, "end_char": 17048, "source": "ner", "metadata": {"in_sentence": "Mr. B. R. Aggarwala, learned counsel appearin,11; for the 4th A Respondent, adopted most oi."}}, {"text": "Mookerjee", "label": "OTHER_PERSON", "start_char": 17175, "end_char": 17184, "source": "ner", "metadata": {"in_sentence": "the general arguments that have been advanced by Mr. Mookerjee.", "canonical_name": "D. Mookerjee"}}, {"text": "section 302", "label": "PROVISION", "start_char": 17274, "end_char": 17285, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 17286, "end_char": 17289, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 34", "label": "PROVISION", "start_char": 17307, "end_char": 17317, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "s 1 and 2", "label": "PROVISION", "start_char": 17742, "end_char": 17751, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 34", "label": "PROVISION", "start_char": 18741, "end_char": 18751, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 18759, "end_char": 18776, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Aggarwala", "label": "OTHER_PERSON", "start_char": 19275, "end_char": 19284, "source": "ner", "metadata": {"in_sentence": "Therefore, we will have due regard to the contentions of Mr. Aggarwala, even when the case of the 3rd Respondent is being dealt with by us."}}, {"text": "section 3", "label": "PROVISION", "start_char": 20121, "end_char": 20130, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 20136, "end_char": 20159, "source": "regex", "metadata": {}}, {"text": "article 136", "label": "PROVISION", "start_char": 20782, "end_char": 20793, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 21102, "end_char": 21113, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 21531, "end_char": 21542, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Laddan Khan", "label": "OTHER_PERSON", "start_char": 23309, "end_char": 23320, "source": "ner", "metadata": {"in_sentence": "The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead."}}, {"text": "Babban Khan", "label": "OTHER_PERSON", "start_char": 23322, "end_char": 23333, "source": "ner", "metadata": {"in_sentence": "The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead.", "canonical_name": "Babban Khan"}}, {"text": "Munnan Khan", "label": "PETITIONER", "start_char": 23335, "end_char": 23346, "source": "ner", "metadata": {"in_sentence": "The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead.", "canonical_name": "Munnan Khan"}}, {"text": "lbne Hasan", "label": "OTHER_PERSON", "start_char": 23351, "end_char": 23361, "source": "ner", "metadata": {"in_sentence": "The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead.", "canonical_name": "lbne Hasan"}}, {"text": "Ittikhar Khan", "label": "RESPONDENT", "start_char": 25631, "end_char": 25644, "source": "ner", "metadata": {"in_sentence": "The only suggestion made to P. W. l was whether Ittikhar Khan had been aamitted to some hospital at Bareilly on the day of occurrence, namely, Octobier 16, 1967.", "canonical_name": "IFTIKHAR KHAN & ORS"}}, {"text": "lftikhar Khan", "label": "RESPONDENT", "start_char": 26046, "end_char": 26059, "source": "ner", "metadata": {"in_sentence": "P.W. 2 in crossexamination has stated that he had seen lftikhar Khan all along in the village on the day of occurrence and for three or four oays before the occurrence.", "canonical_name": "IFTIKHAR KHAN & ORS"}}, {"text": "Mooketjee", "label": "OTHER_PERSON", "start_char": 27923, "end_char": 27932, "source": "ner", "metadata": {"in_sentence": "Mr. Mooketjee next pointed out that the non-exami11ation bv the prosecution of the nerson~ mentioned in the first information report and who.", "canonical_name": "D. Mookerjee"}}, {"text": "s 1 and 2", "label": "PROVISION", "start_char": 28970, "end_char": 28979, "source": "regex", "metadata": {"statute": null}}, {"text": "Baboon Khan", "label": "OTHER_PERSON", "start_char": 29927, "end_char": 29938, "source": "ner", "metadata": {"in_sentence": "After giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular circumstances of this case, there was justification for the non-examination of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. •", "canonical_name": "Babban Khan"}}, {"text": "Ibne Hasan", "label": "OTHER_PERSON", "start_char": 29940, "end_char": 29950, "source": "ner", "metadata": {"in_sentence": "After giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular circumstances of this case, there was justification for the non-examination of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. •", "canonical_name": "lbne Hasan"}}, {"text": "Munnan Khan", "label": "WITNESS", "start_char": 29955, "end_char": 29966, "source": "ner", "metadata": {"in_sentence": "After giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular circumstances of this case, there was justification for the non-examination of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. •"}}, {"text": "October 17. 1967", "label": "DATE", "start_char": 30126, "end_char": 30142, "source": "ner", "metadata": {"in_sentence": "From the evidence of the investigating officer, P.W. 8, it is seen that the statements were recorded by the police from the above persons on the morning of October 17."}}, {"text": "April 16, 1968", "label": "DATE", "start_char": 30424, "end_char": 30438, "source": "ner", "metadata": {"in_sentence": "It is his further evidence that though they had seen the murder, yet due to fear of the accused persons they had filed a false affidavit on April 16, 1968, before the Committing Magi.~ ttate that they had seen nothing."}}, {"text": "Munnan Khan", "label": "PETITIONER", "start_char": 30884, "end_char": 30895, "source": "ner", "metadata": {"in_sentence": "So far as Munnan Khan is concerned, he is the uncle of P.Ws I and 2 and the deceased and the evidence of P.Ws I and 2 is that he came running to the scene when an alarm was raised.", "canonical_name": "Munnan Khan"}}, {"text": "October 14, 1967", "label": "DATE", "start_char": 31938, "end_char": 31954, "source": "ner", "metadata": {"in_sentence": "On the said date, the first respondent filed a statement before the Magistrate to the effect tha<t on the date, when the murder is alleged to have taken pface, namely, October 16, 1967, he was already in the District hospital, Bareilly from October 14, 1967 to Oc'lober 31, 1967, and that he was also operated upon for hydrocele in the meanwhile."}}, {"text": "October 31, 1967", "label": "DATE", "start_char": 32137, "end_char": 32153, "source": "ner", "metadata": {"in_sentence": "According to him, he was in the hospital durin11: the entire period from October 14, 1967 to October 31, 1967."}}, {"text": "October 18, 1967", "label": "DATE", "start_char": 33465, "end_char": 33481, "source": "ner", "metadata": {"in_sentence": "e rtace and that he was actl'allv operated on October 18, 1967."}}, {"text": "Octooer 16, 1967", "label": "DATE", "start_char": 33685, "end_char": 33701, "source": "ner", "metadata": {"in_sentence": "He has also stated mat on Octooer 16, 1967, the first respondent might have been in a frt pos111on to move about and that there is no signature of the said accused in the, records of the hospital on October 16, 1967."}}, {"text": "Iftik:har Khan", "label": "RESPONDENT", "start_char": 34181, "end_char": 34195, "source": "ner", "metadata": {"in_sentence": "It ls her further evidence that she can say from memory that on October 16, 1967, the first respondent, Iftik:har Khan, whom she is able to recognise\n\nD \"\n\nby sight, was in the hospital.", "canonical_name": "IFTIKHAR KHAN & ORS"}}, {"text": "October 16,\n\n1967", "label": "DATE", "start_char": 34480, "end_char": 34497, "source": "ner", "metadata": {"in_sentence": "She had admitted in cross-examination that there is n0- C record to say that she was on duty in the hospital on October 16,\n\n1967 and that there is also no record to show that she counted the patients and satisfi,!Od herself that the first respondent was in the hospital."}}, {"text": "December 18, 1968", "label": "DATE", "start_char": 35041, "end_char": 35058, "source": "ner", "metadata": {"in_sentence": "She has wound up her evidence by stating that all the answers given by her on December 18, 1968, regarding the presence of the first respondent in the hospital on October 16,\n\n1967, were from her memory."}}, {"text": "Sharma", "label": "WITNESS", "start_char": 35396, "end_char": 35402, "source": "ner", "metadata": {"in_sentence": "To a specific question by the Court, this witness bas further stated that it is only on the basis of memory that she was saying that she took charge of the patients on October 16, 1967, at 4.00 P.M. along with the student nurse, Sharma, CW I. She bas admitted that in the 'Da)' and Night' register, which appears to have teen produced before the court, it has not been noted that CW 1 came on duty at 4.00 P.M. on October 16, 1967."}}, {"text": "Octot,.r 16, 1967", "label": "DATE", "start_char": 38149, "end_char": 38166, "source": "ner", "metadata": {"in_sentence": "DW 3 and CW t did not state that thefirst respondent was in the hospital on Octot,.r 16, 1967."}}, {"text": "October 16,-1967.- None", "label": "DATE", "start_char": 38512, "end_char": 38535, "source": "ner", "metadata": {"in_sentence": "These circumstances clearly show that it was possible for the first respondent to be absent from the hospital on October 16,-1967.- None of the witnesses examined by the defence have stated that once a person has been admitted\" to the hospital, he cannot leave the hospital under any circums-- tances till he is discharged."}}, {"text": "section 302", "label": "PROVISION", "start_char": 40821, "end_char": 40832, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 40883, "end_char": 40894, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 40905, "end_char": 40915, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 40923, "end_char": 40940, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 34", "label": "PROVISION", "start_char": 41504, "end_char": 41514, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 41754, "end_char": 41764, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 41985, "end_char": 41995, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 41996, "end_char": 41999, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 34", "label": "PROVISION", "start_char": 42341, "end_char": 42351, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 34", "label": "PROVISION", "start_char": 42904, "end_char": 42914, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 34", "label": "PROVISION", "start_char": 43242, "end_char": 43252, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 43925, "end_char": 43936, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 43947, "end_char": 43957, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 44244, "end_char": 44254, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 44475, "end_char": 44485, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 72 I.A. 148", "label": "CASE_CITATION", "start_char": 44571, "end_char": 44587, "source": "regex", "metadata": {}}, {"text": "Sumner", "label": "OTHER_PERSON", "start_char": 44743, "end_char": 44749, "source": "ner", "metadata": {"in_sentence": "As explained by Lord Sumner in Bilrendra Kumar\n\nGhose v. The King Emperor,\\') ''!"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 44844, "end_char": 44861, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 34", "label": "PROVISION", "start_char": 45276, "end_char": 45286, "source": "regex", "metadata": {"statute": null}}, {"text": "Sikander Khan", "label": "RESPONDENT", "start_char": 45847, "end_char": 45860, "source": "ner", "metadata": {"in_sentence": "Having due regard to the various decisions referred to above, the question is whether the evidence in the case before us establishes that the shooting of Sikander Khan by Respondents 1 and 2 was done in furtherance of the common intention of all the four accused.", "canonical_name": "Sikande:· Khan"}}, {"text": "s 1 and 2", "label": "PROVISION", "start_char": 45976, "end_char": 45985, "source": "regex", "metadata": {"statute": null}}, {"text": "section 342", "label": "PROVISION", "start_char": 47222, "end_char": 47233, "source": "regex", "metadata": {"statute": null}}, {"text": "S2", "label": "PROVISION", "start_char": 47570, "end_char": 47572, "source": "regex", "metadata": {"statute": null}}, {"text": "S2", "label": "PROVISION", "start_char": 47583, "end_char": 47585, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 47730, "end_char": 47740, "source": "regex", "metadata": {"statute": null}}, {"text": "llyas Khan", "label": "RESPONDENT", "start_char": 48202, "end_char": 48212, "source": "ner", "metadata": {"in_sentence": "There is also evidence abut the murder of the brother of the 1st Respondent and the deceased, llyas Khan and certain others being tried for that offence as also their acquirtal in the said case.", "canonical_name": "Ilyas Khan"}}, {"text": "section 34", "label": "PROVISION", "start_char": 49182, "end_char": 49192, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 50390, "end_char": 50401, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 50412, "end_char": 50422, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 51030, "end_char": 51041, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 51052, "end_char": 51062, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 51725, "end_char": 51736, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 51747, "end_char": 51757, "source": "regex", "metadata": {"statute": null}}, {"text": "section 374", "label": "PROVISION", "start_char": 51924, "end_char": 51935, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 51943, "end_char": 51969, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 52360, "end_char": 52371, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 302", "label": "PROVISION", "start_char": 52959, "end_char": 52970, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 53050, "end_char": 53060, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohammad Hasan", "label": "OTHER_PERSON", "start_char": 53342, "end_char": 53356, "source": "ner", "metadata": {"in_sentence": "The first Respondent, Iftikhar Khan, son of Mohammad Hasan, was sentenced to death by the learned Sessions Judge."}}, {"text": "January 14, 1969", "label": "DATE", "start_char": 53709, "end_char": 53725, "source": "ner", "metadata": {"in_sentence": "The trial of the accused was over in January 1969 and the first Respondent was sentenced to death by the Civil and Sessions Judge on January 14, 1969."}}, {"text": "section 302", "label": "PROVISION", "start_char": 53975, "end_char": 53986, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 54183, "end_char": 54194, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 54316, "end_char": 54327, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 54338, "end_char": 54348, "source": "regex", "metadata": {"statute": null}}, {"text": "Ishitaq Khan", "label": "RESPONDENT", "start_char": 54470, "end_char": 54482, "source": "ner", "metadata": {"in_sentence": "There will bie no order on the appeal so far as the 2nd Respondent, Ishitaq Khan, son of Mukhtar Khan, is concerned, as it has become infructuous due to his having been murdered during the pendeilcy of the appeal.", "canonical_name": "Ishitiaq Khan"}}, {"text": "Mukhtar Khan", "label": "OTHER_PERSON", "start_char": 54491, "end_char": 54503, "source": "ner", "metadata": {"in_sentence": "There will bie no order on the appeal so far as the 2nd Respondent, Ishitaq Khan, son of Mukhtar Khan, is concerned, as it has become infructuous due to his having been murdered during the pendeilcy of the appeal."}}]}
{"document_id": "1973_3_348_363_EN", "year": 1973, "text": "SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI\n\nCECELIA KOM FRANCIS TELLIS\n\nJanuary 18, 1973\n\n(S. M. SIKRI, C. J., A. N. RAY, D. G. 'PALEKAR, M. H. BEG AND\n\nS, N. DWIVEDI, JJ.J\n\nBon1hay District Municipal Act 1901-Rules nuule under s. 46-- Rults 143 11uindatory-Disn1issal of employee without reasonable oppor~ tunity .to show cause l'oid and illegal-State authorities 1nust cct 'within Jin1its of statuton,.i poaers-Public_ en1ploy11ient distinguished front p'ri\n\n\"ate en1p/oy1nent.\n\nThe respondent was an employee of the -appellant municipality a!' a midwife in its hospital.\n\nOn the death of a patient in the hospital an enquiry was held by the Civil Surgeon who found that the death was not <luc to the negligence of the hospital staff.\n\nThereafter a committee appointed by the municipality held an enquiry and made its report.\n\nThe President of the municipality gave notice to the respondent that as she was responsible for the death of the patient in question due to her :negligence she. should appear before the Municipal Council at its meeting at 4 p.m. on 25 March 195~ and give her explanation.\n\nShe s-ent her reply denying her negligence and also stated that if It was necessary for her to explain anything she should be asked in writing.\n\nShe did not appear before the Council at the appointed time.\n\nWhen she did appear at 6 p.m. she insisted that the charge against her should be in writing.\n\nThe municipality disssed her from service. The _res pondent thereupon filed a suit for a declaration that the resolution of the municipality dismissing her from service was void.\n\nHer fir.st contention was that Rule 143 of the Ruk\" framed by the municipality had been violated as she was !liOt given an opponunity of defending herself against the chafge.\n\nHer second contention was that the resolution was passed by the municipality on a day when the question of her dismissal was not on the agenda. The High Court upheld the findings of the trial court and the first Appellate court that the res pQndent was not given a reasonable opportunity to defend herself anJ thus r. 143 was violated and on this ground upheld the declaration that she was deemed to have continued in service from the date of dismissal to the date of the suit.\n\nIn appeal by. special leave before this Court the municipality contended that the respondent was not entitled to any declaration and that if the dismissal was wrongful the remedy lay\n\nin damages.\n\nHELD: (per Sikri,\n\nC.J ., Ray, Palekar and Dwivedi,\n\nJJ.)\n\n(i) Tennination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or iIJ.egal it may be.\n\nThe reason is that dismissal in breach of contract is remedied by damages.\n\n[353F-GJ\n\nIn the case of servant of the State or of local authorities, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contra'rv to the rules of natural justice or if the dismissal or ifthe dismissal iS in violation of the provisions of the stattife. Apart fram the intervention of statute there would not be a, declaration of\n\nSIRS! MUNIC. v. KOM FRANCIS (Ray, 1.) 349\n\nnullity in the case of termination or dismissal of a setva!nt of the Stat-I! or of other local authoriti\"' or statutory bodies.\n\n[3530-H]\n\nThe courts keep the State and the public authorities within the limits of their statutory powers.\n\nWhere a State or a public authority dis misses an employee in violation of the mandatory procedural require ments or on grounds which are not sanctioned ol' supported by statute the courts may exercise, jurisdiction to declare the act of dismissal to' be a ; nullity.\n\nSuch implication of public employment is thus distinguished from private employment in pure cases of master and .servant.\n\nl353H,354B]\n\nThis Court in its decisions has held that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or Order is invalid. This Court has questioned the orders of dismissal and granted appropriate declarations.\n\n[356C-DJ\n\nExecuthe L'o111111iltee of U.P. State Warehousing Corporation Lbnit- <'d. v. lhatulra Kiran Tyagi, [1970} 2 S.C.R. 250 a:nd Indian Airli1u•\\' Corpora.tio11 v. Suklufeo Rai, [1971] 2 S.C.C. 192, distinguished.\n\nS. R. Tewari v. District' Boar,/, Agra, [1964)\n\n3 S.C.R. 56, Life Insurance l'orporation of India v.\n\nSunit Kz11nar Mukherjee, [1964] 5 S.C.R. 528, Ca!cutta Dock Labour Board v. Jafjar bnani & Ors., 1'1965] 3 S.C.R. 453 and Nc.raindas Barot v.\n\n\nRecent English decisions, also indicate that statutory provisions may lin1it the power of dismisSal.\n\n[356D-F]\n\nVine v. National Dock Labour Board, [1956) 3 All.E.R. 939 Barber\n\nv. Manchester Hospital Board, [1958] I All. E.R. 322. RidRe v. B<l/dwi11,\n\n11964) A.C. 41, Malloch v. Aberdeen Corporation. [19711 2 All. E.R. 1278 and McClelland v. Northern Ireland Generc.l Health Services Board. [1957] I W.L.R. 594, referred to.\n\n(ii) In the present case the dismissal of the respondent must he declared to be illegal and void.\n\nRule 143 in1poses a mandatory obligation.\n\nThe rules y, erc made in exercise of power confeired on the nlunicipality by statute. The rules are binding on the municipality.\n\nThey cannot be. amended without the assent of the State Government. The disn1issal of the respondent was rightly found by the Hih Court to be in violation of rule 143 which imposeda ma, Ttdatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence.\n\nThe dismissal by the municipality was without recdrding anv written statemerit \"'hich might have been tendered.\n\nThe dismissal by the municioalitv was \\vith out \\vrittcn order. The dismissal was ultra v;1es.\n\n[357G-358A]\n\nPer Beg, J. (concurri11g)-The competence of the Municipal courl to pass the rcso]utir.n dismis..;; ing the respondent depended more on compliance with Rule 143 made unclor s. 46 of the Bombay District Municipal Act, 1901 than on s. 26(8) of the Act. Compliance wit~ such a rule could not be dispensed with bv the Collllcll or its presiding au1hority under s. 26(8) of the Act.\n\n[359C-E]\n\nNeither r\\lles nor bye-Jaws of the municipality could be made or altered by it unilaterallv. lloth operated as. laws which bound the local nuthority.\n\nThis was clear frlllll ss. 46 and 48 of the Act_\n\nAn express statutory provision or guarantee is not the only basis of a mandatory duty, or obligation. It ca'! he impoed either_ by .a r:ite made in exercise of a statutory power or 1t may ar1sc by 1mpltcation when exercising a quasi-judicial function,\n\n[360G-HJ\n\nThe present case undoubt£dly fell within the category of cases where dismissal must be based upon a decision arrived at quasijudicially about a wrong done by the seryant. This ele-ntary and basic procedural safeguard, flows not merely from an implied rule of natural justice but in the present case it is actually embodied in a rule which cannot be interpreted as anything other than a legal limitation or fett£r on th<: power of the municipality to dismisses. [362F-Gl\n\nThis could not be a case in which damages for a simple breach of contract could afford adequate relief.\n\nDamages could !OOt wipe off the stigma attached to the record. of the sefV'aD.t.\n\nThe law requires that he_fore the future of a servant is allowed to be marred by a blot on the recorJ of the servant concerned,, rules of natural justice must -be complied with. [363A-Bl\n\nCase law referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 330 of 1967.\n\nAppeal by a special leave from the judgmnt and order dated June 16, 1966 of the Mysore High Court at Bangalore in Regular First Appeal No. 33 of 1962.\n\nR. B. Datar and S. N. Prasad, for the appellant.\n\nS. S. Javali, B. P. Singh and D. N. Mishra, for the re.spondent.\n\nG. B. Pai and C. S. Rao, for the intervener No. 1.\n\nG. Ramchandra Rao and B. Parthasarath.v, for intervener No. 2.\n\nD. V. Patel and K. L. Hathi, for intervener No. 3.\n\nS. Balakrishnan, for intervener No. 4.\n\nB. Datta, for intervener No. 5.\n\nThe Judgment of Sikri, C. J., Ray, Palekar and Dwivedi, JJ. was delivered by Ray, J. Beg, J. gave a separate Opinion.\n\nRAY, J.-The question which falls for determination in this appeal by special leave is whether the respondent is entitled to a declaration in a suit filed by her that her dismissal by the appellant municipality referred to as the municipality was illegal and void.\n\nThe respondent was an employee of the municipality.\n\nHer services were terminated by a resolution dated 23 March, 1955.\n\nShe. was dismissed from service. She filed this suit for a declaration . that the resolution of the municipality dismissing her from service was void and that she continued to be in service of the\n\n~IRS! MUNIC. v. KOM FRANCIS (Ray, J.) 351\n\nmunicipality and was entitled to emoluments from the date of the resolution up o the date of the suit.\n\nThe Municipality is goverened by the Bombay District Municipalities Act, 1901 referred to as the Act. Sectic;>n 46 of the Act provides that the municipality shall make rules in respect oi matters enumerated in that section. Clause (g) of section 46 empowers the municipality, to frame rules regulating inter alia the period of service, the conditions of service etc.\n\nRule 183 framed by the municipality provides that except in the case of Chief Health Officer and the Engineer every municipal officer or servant is liable to be discharged at one month's notice.\n\nRule 183 was not invoked by the municipality in 'the present appeal.\n\nTherefore, rule 183 is out of consideration.\n\nRule 143 of the municipality provides two things. First, no officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. Any written statement tendered shall be recorded and written order shall be passed thereon. Second, every order of dismissal or confirming dismissal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order.\n\nSometime in February 1955 one Nayak brought his wife Nagarnma to Pandit Cottage l{ospital administered by the municipality. Nagamma was admitted to the maternity section. , On\n\n15 February 1955 Nagamma died.\n\nNagamma's husband complained to the municipality against the negligence of the staff of the hospital as the cause for the death of Nagamma. The Civil Surgeon held an enquiry.\n\nHe gave a finding that the death of Nagamma was not due to the negligence of the staff. There was public agitation for a fresh enquiry.\n\nOn 7 March 1955 the municipality passed a resolution appointing a committee of four persons to hold an enquiry into the cause of the death of Nagamma and the alleged negligence of the staff ofthe hospital. The committee recorded the statements of several persons.\n\nThe committee submitted its report to the Municipal Council.\n\nOn 23 March 1955 a meeting of the Municipal Council ~'as held. The respondent alleged that though the consideration of the report of the sub-committee and the taking of a decision thereon were not incuded in th~ agenda of that meeting, yet the President of the Council sent a nouce to the respondent. The communication to the respondent was to the effect that it had come to the notice of the President that the death of Nagamma was due to the negligcnce of rthe respondent, and, therefore, she was to appear before the Municipal Council at 4 p.m. on 23 March 1955 and give )\\er explanation.\n\nThe respondent received a notice on 23 March, 1955 at about 10.30 a.m. She sent her reply denying her negli gence. The respondent also stated that if it was necessary for !J.er to explain anything she should be asked questions in writing and she would give her answers in writing.\n\nThe respondent did not appear before the Municipal Council at 4 p.m. The respondent came to !he municipal hall at about 6 p.m. But that rtime, the Municipal Council had passed a resolu tion dismissing the respondent from service. The President asked the respondent what her statement was about negligence.\n\nThe respondent did not make any oral sfatement.\n\nThe respondent insisted that the charge against her should be given in writing and that she would reply in writing. The municipality did not acceds to the respondent's request.\n\nThe resolution of the municipality was communicated to the respondent on the same day. The respondent handed over charge on 24 March 1955.\n\nBroadly stated, the two contentions of :the respondent were these. First, rule 143 of the municipality was violated. She was not given a reasonable opportunity of defending herself against the charge. Second, the resolution was passed by the municipality on a day when the agenda before the municipality did not contain any subject of dismissal of the respondent. On these grounds the respondent filed a suit for a declaration that the resolution was illegal, that the status of the respondent as mid-wife in the hospital remained unaffected and that the respondent was an employee of the municipality as !Jiefore. The respondent claimed other reliefs.\n\nThe contention of the municipality on the other hand was that the rules and bye-laws of the municipality were only for the guidance of the municipality and that the respondent could not challenge the resolution or action of the municipality on the ground of violation of rules and bye-laws.\n\nThe High Court upheld the findings of the trial Court and the first Appellate Court that the respondent was not given a reasonable opportunity of defending herself against the charge on which she was dismissed and that the municipality thus violated rule 143.\n\nThe High Court however did not accept the finding of the courts , below that the Municipal Council was not competent to pass the resolution on the ground of want of notice on the agenda. The High Court also set aside the findings ol the courts below that the charge had not been proved against the respondent.\n\nThe High Court found that the resolution of the municipality was c~ in violation of rule 143 and declared it as invalid and inopeiative;\n\nSIRS! MUNIC. V. KOM FP.ANCIS (Ray, /.) 353\n\nThe High Court maintained the declaration tha:t the respondent was deemed to have continued in service from the date of dismissal to the date of the suit.\n\nCounsel on behalf of the municipality contended that the respondent was not entitled to any declaration. In short, it was said on behalf of the municipality that if the dismissal was wrongful the remedy lay in damages.\n\nThe cases of dismissal of a servant fall under three broad heads. The fir5t head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal C and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of emvloY1Dent is not capable of founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for D personal services. Such a declaration is not permissible under the Law of Specific Relief Act.\n\nThe second type of cases of master and servant arises under Industrial Law. Under That branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. _This relief is a departure from the reliefs available under the Indian Contract Act and the Specific. Relief Act which do not provide for reinstatement of a servant.\n\nThe third category of cases of master and servant arises in regard to the servant in the employment of the Sta:te or of other public or local authorities or bodies created under statute.\n\nTermination or dismissal of what is described as a pure oontract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied biy damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute.\n\nApat from the intervention of statute there would not be a declaia'lion of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.\n\nThe courts. keep the State and the public authorities within the limit~ of their statutory powers. Where a State or a public authority dismis.~ an employee in violation of the mandatory procedural requirements or an grounds which are not sanctioned\n\nor suppol'ted by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master nnd servant.\n\nCounsel on behalf of the municipality relies on the decisions of this Court in Executive Committee of U.P. State Warehousing Corporation limited v. Chandra Kiran Tyagi\n\n(1970) 2 S.C.R. 250 and Indian Airlines Corporation v. Sukhdeo Rai\n\n(1971) 2 S.C.C. 192 in support of 1the contention that even in cases cf statutory authorities or bodies a dismissal would only sound in damages and not entitle the dismissed servant to the relief of a declaratory judgment against the order of dismissal or termination.\n\nIn Tyagi's case (supra) the Warehousing Corporation was competent to make regulations not inconsistent with the Agricultural Produce (Development and Warehousing) Corporation Act, 1956.\n\nThe Warehousing Corpor®.on framed regulations.\n\nRegulation 11 dealt wrth termination of the service al an employee other than b!y way of punishment. Regulation 16 dealt with penalties imposed on servant. Regulation 16(3) s1ated that no punishment other than fine, censure or postponement of increments or promotion was to be imposed on an employee without giving him an opportunity for tendering an explanation in writing and cross examining the witnesses against him and of. producing evidence in defence.\n\nTyagi in that case complained that at the enquiry he was not given opportunity to adduce evidence in defence and 1he persons from whom the Enquiry Officer gathered information were not tendered for cross-examination. The question for consideration by this Court in that case was whether the dismissal of Tyagi could support the grant of a declaration that the dismissal was null and void and that Tyagi was entitled to be reinstated. This Court held that an order made in breach of regulation 16(3) was not in breach of any statutory obligation. It was also held in Tyagi's( 1) case (supra) that the relevant Act did not 'guarantee any statutory status to Tyagi' nor did it 'impose any obligation' on the Warehousing Corporation in the matter of dismissal. The ratio in Tyagi's( 1) case (supra) was that violation of reeulation 16(3) was a breach al terms and cOnditions of relationship of master and servant and the master was liable for damages for wrongful dismissal.\n\nThis Comt did not find any violation of statntCl'.'y obligation in Tyagi's( 1) case (supra).\n\nSIRS! MUNIC. V. K-OM FRANCIS (Ray, ].) 355\n\nIn the Indian Airlines Corporation case (supra) Sukhdeo Rai was suspended on certain charges. Later on he was found quilty of those charges in an enquiry. He was thereafter dismissed.\n\nHe filed a suit alleging that the enquiry had been conducted in breach of the procedure laid down by regulations made by the Corporation under section 45 oi the Act, and, therefore, the dismissal was illegal and void. The High Court held that the Corporation was under a statutory obligation to obServe the procedure laid down in the regulations and gave the relief of a declaratory judgment. This Court set aside the declaration granted by the High Court. The ratio in Indian Airlines Corporation case was st:rted thus :\n\n\"The employment of the respondent not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the respondent's employment could be exercised, could the respondent contend that he was entitled to a declaration that the termination of his employment was null and void ?\" ·\n\nIn the Indian Airlines Corporation case (supra) regulations framed under section 45 of the Act were said by this Court to be terms and conditions of service but the same did not constitute a statutory restriction as to the kind of contracts which the Corporation could make with the servants or he ground on which it could terminate. The dismissal in ithat case was found to he wrongful and not to fall within the vice of infraction of statutory limitation or statutory obligation.\n\nThis Court in S. R. Tewari v. District Board Agra (1964) 3 S.C.R. 55, Life Insurance Corporation of India v. Sunil Kumar Mukherjee (1964)\n\n5 S.C.R. 528, Calcutta Dock Labour BOlll'd v. Jaf]ar Imam & Ors. (1965) 3 S.C.R. 453 and Naraindas Barot v. Divisional Controller, S.T.C. (1966) 3 S.C.R. 40 dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.\n\nIn Tewari's case (supra) this Court said that dismissal, temoval or reduction of an officer or servant might be effected under\n\nthe rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken. This Court held in Tewari's case (supra) that in three instances a dismissed employee might in ppropriate cases o1'tain a declaratory judgment that the dismissal was wrongful. Those three instances are : first, cases of public servants falling under Article 3I1 (2) of the Constitution; secondly, cases falling under the Industrial Law and, thirdly, cases where acts of statutory bodies are in breach of mandatory obligation imposed by a statute.\n\nIn Naraindas Barot's case (supra) this Court held that the order of tem1ination was bad in law since it contravened the provisions of clause 4(b) of the regulation and also the principles of natural justice.\n\nThis Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid.\n\nThis Court has quashed the orders of dismissal and granted appropriate declarations.\n\nThere have been recent English decisions on this subject.\n\nThese are Vine v. National Dock Labour Board (1956) 3 All E.R. 939; Barber v. Manchester Hospital Board (1958) 1 All E.R. 322; Ridge v. Baldwin 1964 A.C. 41; Malloch v.\n\nAberdeen Corporation (1971) 2 All E.R. 1278 and McClelland v. Northern lreland General Health Services Board (1957) l W.L.R. 594.\n\nThese decisions indicate that statutory provisions may limit the power of dismissal.\n\nWhere such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bo, dies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down l\\Y legislation e.g., improperly delegates power of dismissal to another body the courts have declared such dismissal from public employment to be invalid.\n\nThe cases of a statutory status of an employee can be also form the subject matter of protection of the rights of an employee under the statute. In Vine's case (supra) the removal of Vine's name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status.\n\n~IRS! MUNIC. V. KOM FRANCIS (Ray, J.) 357\n\nAn unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by this in\n\nJ11ffar Imam's case (supra). In Jaffar Imam's case (supra) the\n\ntnnination of the employment in breach of clause 36(3) of the scheme made by the Central Government in exercise of the power conferred on it by section 4( 1) of the Dock Workers (Regulation of Employment) Act 1948 was held to be bad.\n\nThe ground given by this Court was that before any disciplinary action was taken under clauses 36( 1) and (2) of the scheme in Jaffar Imam's case (supra) th~ person concerned was to be given an opportunity to show cause as to why the proposed action should not be taken against him.\n\nAgain in Barber's case (supra) under the memorandum issued by the Minister of H:ealth the Hospital Board was not to carry into effect the dismissal of consultant before a certain appeal procedure had been completed.\n\nBarbar was dismissed without the prescribed procedure being followed. It was held that despite the 'strong statutory flavour ttaching to the plaintiff's contract' this was an ordinary contract between master and servant. The House of Lord in McC/e/land's case held that the dismissal of the plairrtiff by the Board in that case on the ground of redundancy of staff was not one of the grounds specified in the tenns and conditions of service.\n\nIt was found that the dismissal could be on specified grounds e.g .. , gross miscouduct.\n\nA declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly tenninated. It was not a case of a Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The Court found that the express power of the Board did not include reduction on the ground of redundancy.\n\nThe Court spelt out security of status in employment. The legal basis of the decision in McClel/and's case\n\n(supra) is that the post was terminable only on certain specified grounds.\n\nG In the present appeal, the pre-eminent question is whether the dismissal is in violation of rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found\n\nH by the High Court to be in violation of rule 143 which imposed a mandatory obligation. The respondent was dimissed without a reasonable opportunity of bein~ heard in her defence. The dismissal by the municipality was without recording any written\n\nstatement which might have been tendered. The dio.missal by the municipality was without written order. The dismissal was ultra vires ..\n\nFor the foregoing reasons the High Court was correct in declaring the dismissal of the respondent to be illegal anq void.\n\nThe appeal is therefore dismissed. Jn view of the fact thL1 court directed the appellant would in any event pay the respondents' costs, 1he Respondent will be pai1 these costs.\n\nBEG, J.-The facts of the case before us, which are so clearly set out in the judgment of my learned Brother Ray, need not be repeated by me. I respectfully concur with what has fallen from my learned brother. I would, however, like to add some observation on two aspects of the case before us.\n\nFirstly, it was suggested, on behalf of the Municipality, that the local authority had some kind of dispensing power which could enable it to over-ride Rule 143 in the circumstances of the case before us.\n\nRule 143 of the Sirsi Murticipality, reads as follows :-\n\n\"Rule 143 (I). No officer or servant be dismissed without a reasonable opportunity cieing given to him of being heard in his defence.\n\nAny written defence tendered shall be recorded and written order shall be passed thereon.\n\n;2) Every order of dismissal or confirming a dismbsal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order\".\n\nThis suggestion was based on the provisions of Section 26, sub. s(8) of the Bombay District Municipal Act 1901 (hereinafter referred to as \"the Act\") which has , really nothing to do with any general power to disperse wi1h the application of any rule.\n\nAll that Section 26, sub. s(8), empowers the Council to do is to take up a matter for consideration and discussion with the per- G mission of the Presiding authority even though it may not have been tabled on 'the notified agenda for the meeting. This provision reads as follows :\n\n\"26 ( 8). Except with the permission of the presiding authority, which permission shall not ijl given in the case H of a motion or proposition to modiiy or cancel anv resolution within three months after the passing thereof. no business shall be transacted and no propositiorvshall be\n\nSIRS! MUNIC. v. KOM FRANCIS (Beg, J.) 359\n\ndiscussed at any general meeting unless it has been menuoned in the notice convening such meeting .or, in the case of a special general meetmg, in the written request for such meeting. The order in which any business that may be transacted or any proposition that may be discussed at any meeting in accordance with this subsection shall be brought forward at such meeting, shaU be determind by the presiding authority, who in case it is proposed by any member to give priority to any particular rtem of such business, or to any particular proposition shall put the proposal to the meeting and be guided\n\nc by the majority of votes given for or agaill.9t the proposal\".\n\nSection 26, sub. s. ( 8), seems initially to have been relied upon only to meet the argument that the impugned resolution could not be passed in the absence of a previous notice of it to the\n\nMembers of the Council. The competence of the Municipal Council to pass the resolution dismissing the respcindent depended more on compliance with Rule 143 made under Section 46 of the Act than on Section 26 ( 8) of the Act. Compliance with such a rule could not be dispensed with by the Council or its presiding authority under Section 26 (8) of the Act.\n\nThe mode and conditions of appoi_ntment, punishment, and dismissal of officers and servants of the Municipality were meant to be regulated by rules which had to approved by the State Government in the case of the City ¥unicipalities and by the Com missioner in other cases before they could become binding or be altered. Bye-laws could be made on certain specified subjects only after the previous sanction of the State Government or the Com missioner, as the case may be, given to them. Neither rules nor F bye-laws of the Municipality could be made or altered unilaterally by it. Both operated as laws which bound the local authority.\n\nThis was clear from the provisions of Section 46 and 48 of the Act.\n\nIn Yabbicon v. King(') it was said :\n\n\"The District Council could not control the law, and G b!y~Iaws properly made have the effect of laws; a public body cannot any more than privl!te persons dispense with laws that have to be administered; they have no dispensing power whatever\".\n\nAgain in William Feam & Sons. v. Flaxton Dural Council(') Sankey, L. J., held that a local authority has \"no power\" to con- H travene its own bye-laws properly made. In Kruse Vs. Johnson('),\n\n(I) (1-899) (I Q.B. 444 (a).\n\n(3) (1898) (2 Q.B. 91).\n\n(2) (1929) (I K. B. 4SO @ 467).\n\nLord Russel pointed out that a bye-law has the \"force of law\"\n\nwithin the sphere of its legitimate operation.\n\nTherefore, quite apart from the basic character of Rule 143 as a procedural protection against un-meritted punishment by dismissal of servants of the Municipality, I think that the local body was not competent to act upon the assumption that it had any po:-ver to dispense with compliance with this rule so long a& it stood unaltered.\n\nSecondly, the question arose whether the violation of Rule 143, which admittedly took place, made the dismissal of the respondent merely illegal, for which award of damages was sufficient\n\nremedy, or mtje it void and ineffected, so that a declaration of the rights of_ the respondent as a servant of the Municipality could also be given despite the provisions of Section 21 Specific Relief Act.\n\nIt is true that, ordinarily, a Co1c1rt will not give a declaration which will have the effect of enforcing a contract of personal service and will restrict relief to the injured party to damages for breach of contract. But, the principles which are applicable to the relation of a private master and a servant, l!n-regulated by statute, could not apply similarly to the case of a public statutory body exercising powers of punishment fertered or limited by statute and relevant rules of procedure.\n\nAlthough Indian Airlines Corporation v.\n\nSukhdeo Rai(1), which was cited on behalf of the appellant, could perhaps be dis\n\ntinguished on facts, I am unable to reconcile the decision of this Court in the case of Executive Committee of U.P. State Ware\n\nhousing Corporation Ltd. v. Chandra Kiran Tyagi('), with our view in the case before us. In Tyagi's case (supra), as in the case be.fore us, no express statutory provision was contravened by the\n\nimpugned dismissal, but a rule, made under. powers conferred by statute, which protects the servant concerned from punishment bv way of dismissal contrary to rules of natural justice, was violated.\n\nIf a guaranteed \"statutory status\" means only an express statutory p, rellection, such as the one found in Article 311 of 1he Constitution, and a rule made under a statutory power is not enough to confer it, there was none either in T, vagi's case. (supra) or in the case before us. An express statutory provision or guarantee is not the only basis of a mandatory duty or obligation. It can be imoosed either by a rule made in exercise of a statutorv oower or it may arise by implication when exercising a qu'asi-judicial functions.\n\nEven when there was no specific rule on the subject. like Rule 143 in the case before us, this' Court has held that violation cf ita1\n\n(I) [19711 S1p,, S.C.R. 510.\n\n(3) (1970J (2) S.C. R. 250.\n\n51RSI MUNIC. V. KOM FRANCIS (Beg, J . .) :1 Ii 1\n\nplied rules of natural justice, iii exercise of a quasi-judicial statutor: power, results in a legally void decision. It was so held because the obligation to observe .ules of natural justice was imperative in such a situation. In State of Orissa v.\n\nDr. (Miss) Bi11apa11i Rai('), this Court said :\n\n\"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike 10 judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise bf arb:itrary authority by the State or its officers. Duty to act judicially would, 'therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.\n\nIf the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of Jaw and importance thereof transcends the significance of a decision in any particular case\".\n\nThis principle would be equally applicable to local Government bodies which fall within the definition of \"State\" given in Artkl~\n\n12 of the Constitution.\n\nByles, J., in Cooper v. The Board of Works for We11dswor1/1 District('), said long ago about the primordial character of the opportunity to be heard before punishment :\n\n\"The laws of God and man both give the party an opportunity to make his defence, if he has any.\n\nI remember to have heard it obseryed by a very learned man, upon such an occasion, that even God himsell did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God) 'where art thou ? Hast thou not eaten of the tree whereof I commanded those that thou shouldst not ear?\"'\n\nSuch a principle has been described as a principle of \"Universa jurisprudence\" by Mahomood, J., in Queen Empress v. Po11hi(\" l\n\nTn Ridge v. Baldwin(') Lord Reid observed (at page 71)\n\n\"The authorities on the applicability of the Principle& of natural justice are in some confusion and so I\n\n(I) \\196'.IJ (2) S.C::.R.625.\n\n12) 0863) 14 C.N.S.180.\n\n(3) .L.R. 13 Alld. 171.\n\n(4) 1964 A.C. <IO@ 65.\n\nfind rt necessary to examine this matter in some detail.\n\nThe principle audi a/teram partem goes back many c.entunes in our law and appears in a multitude of judgments of judges of the highe!lt authority. In , modem tlliles opinions have sometimes been expressec> to the eltect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nily' weighed or measured therefore it does not exist. The idea of negligance is equally insusceptible of exact definition but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligance in particular circumstances are equally capable of serving as tests in law, and natural justice as it had been interpreted in the coul'ts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile in that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall in.to t11ree classes, dismissal of. a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal\".\n\nThe case before us undoubtedly falls within the category of cases where dismissal must be based upon a decision arrived at quasi-judicially about a wrong done by the servant.\n\nThis elementary and basic procedural safeguard flows not merely from an implied rule of na'lural justice, but, in the case l:lefore us, it is actually embodied in a rule which we cannot interpret as anything other than a legal limitation or fetter on the power of the Municipal authority to dismiss. It constitutes a condition precedent to a valid decision to dismiss whether contained in a resolution or an order of the local authoritv. As the local Government\n\nauthority had failed to see that a mandatory duty, embodied ill a basic rule, had been carried out. the resulting decision must\n\nnecesarily be held to be void.\n\nIf the c; lecision to dismiss the resnondent was vnid and inooerat.i ve in law, there seems no reason whv a declaration to that effect be not granted.\n\nSuch a case would be covered by the principles\n\nSlllS! MUN!C, V. KOM FRANCIS (Beg, J,) 363\n\nA laid down by this court in. : Life Insurance Corporation of l ndia v.\n\nSunil Kumar Mukherjea & 019.(1) and S, P. Tewari v.\n\nDistrict Board Agra & Anr. ('). This could not be a case in which damages for a simple breach of contract could afford adequate relief. Damages could not wipe oft the stigma attached to the record of the servant. The law requires that, before the future B of a servant is allowed to be marred by a blot on the record of the\n\nservant concerned, rules ol natural justice must be complied with.\n\nI,· therefore, concur with the judgment and the order proposed by my learned Brother Ray.\n\nG.C.\n\n(IJ (19641 (3)SCR f52)\n\n(2) (1964] (3)SCR (ll) 8-L 796Sup.C.. I. /73", "total_entities": 97, "entities": [{"text": "SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI", "offset_not_found": false}}, {"text": "CECELIA KOM FRANCIS TELLIS", "label": "RESPONDENT", "start_char": 43, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "CECELIA KOM FRANCIS TELLIS", "offset_not_found": false}}, {"text": "January 18, 1973", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI\n\nCECELIA KOM FRANCIS TELLIS\n\nJanuary 18, 1973\n\n(S. M. SIKRI, C. J., A. N. RAY, D. G. 'PALEKAR, M. H. BEG AND\n\nS, N. DWIVEDI, JJ.J\n\nBon1hay District Municipal Act 1901-Rules nuule under s. 46-- Rults 143 11uindatory-Disn1issal of employee without reasonable oppor~ tunity .to show cause l'oid and illegal-State authorities 1nust cct 'within Jin1its of statuton,.i poaers-Public_ en1ploy11ient distinguished front p'ri\n\n\"ate en1p/oy1nent."}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 90, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 110, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "D. G. 'PALEKAR", "label": "JUDGE", "start_char": 121, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 137, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "N. DWIVEDI, JJ", "label": "JUDGE", "start_char": 155, "end_char": 169, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "District Municipal Act 1901", "label": "STATUTE", "start_char": 181, "end_char": 208, "source": "regex", "metadata": {}}, {"text": "s. 46", "label": "PROVISION", "start_char": 227, "end_char": 232, "source": "regex", "metadata": {"linked_statute_text": "District Municipal Act 1901", "statute": "District Municipal Act 1901"}}, {"text": "25 March 195~", "label": "DATE", "start_char": 1060, "end_char": 1073, "source": "ner", "metadata": {"in_sentence": "should appear before the Municipal Council at its meeting at 4 p.m. on 25 March 195~ and give her explanation."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2445, "end_char": 2450, "source": "ner", "metadata": {"in_sentence": "HELD: (per Sikri,\n\nC.J .,"}}, {"text": "Ray", "label": "JUDGE", "start_char": 2460, "end_char": 2463, "source": "ner", "metadata": {"in_sentence": "Ray, Palekar and Dwivedi,\n\nJJ.)", "canonical_name": "Ray"}}, {"text": "Palekar", "label": "JUDGE", "start_char": 2465, "end_char": 2472, "source": "ner", "metadata": {"in_sentence": "Ray, Palekar and Dwivedi,\n\nJJ.)"}}, {"text": "Dwivedi", "label": "JUDGE", "start_char": 2477, "end_char": 2484, "source": "ner", "metadata": {"in_sentence": "Ray, Palekar and Dwivedi,\n\nJJ.)"}}, {"text": "[1964)\n\n3 S.C.R. 56", "label": "CASE_CITATION", "start_char": 4318, "end_char": 4337, "source": "regex", "metadata": {}}, {"text": "[1964] 5 S.C.R. 528", "label": "CASE_CITATION", "start_char": 4405, "end_char": 4424, "source": "regex", "metadata": {}}, {"text": "1965] 3 S.C.R. 453", "label": "CASE_CITATION", "start_char": 4479, "end_char": 4497, "source": "regex", "metadata": {}}, {"text": "Per Beg", "label": "JUDGE", "start_char": 5747, "end_char": 5754, "source": "ner", "metadata": {"in_sentence": "[357G-358A]\n\nPer Beg, J. (concurri11g)-The competence of the Municipal courl to pass the rcso]utir.n dismis..;; ing the respondent depended more on compliance with Rule 143 made unclor s. 46 of the Bombay District Municipal Act, 1901 than on s. 26(8) of the Act."}}, {"text": "s. 46", "label": "PROVISION", "start_char": 5919, "end_char": 5924, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay District Municipal Act, 1901", "label": "STATUTE", "start_char": 5932, "end_char": 5967, "source": "regex", "metadata": {}}, {"text": "s. 26(8)", "label": "PROVISION", "start_char": 5976, "end_char": 5984, "source": "regex", "metadata": {"linked_statute_text": "the Bombay District Municipal Act, 1901", "statute": "the Bombay District Municipal Act, 1901"}}, {"text": "s. 26(8)", "label": "PROVISION", "start_char": 6103, "end_char": 6111, "source": "regex", "metadata": {"linked_statute_text": "the Bombay District Municipal Act, 1901", "statute": "the Bombay District Municipal Act, 1901"}}, {"text": "ss. 46 and 48", "label": "PROVISION", "start_char": 6309, "end_char": 6322, "source": "regex", "metadata": {"linked_statute_text": "the Bombay District Municipal Act, 1901", "statute": "the Bombay District Municipal Act, 1901"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 7468, "end_char": 7496, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 7682, "end_char": 7693, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. N. Prasad, for the appellant."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 7698, "end_char": 7710, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. N. Prasad, for the appellant."}}, {"text": "S. S. Javali", "label": "LAWYER", "start_char": 7732, "end_char": 7744, "source": "ner", "metadata": {"in_sentence": "S. S. Javali, B. P. Singh and D. N. Mishra, for the re.spondent."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 7746, "end_char": 7757, "source": "ner", "metadata": {"in_sentence": "S. S. Javali, B. P. Singh and D. N. Mishra, for the re.spondent."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 7762, "end_char": 7774, "source": "ner", "metadata": {"in_sentence": "S. S. Javali, B. P. Singh and D. N. Mishra, for the re.spondent."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 7798, "end_char": 7807, "source": "ner", "metadata": {"in_sentence": "G. B. Pai and C. S. Rao, for the intervener No."}}, {"text": "C. S. Rao", "label": "LAWYER", "start_char": 7812, "end_char": 7821, "source": "ner", "metadata": {"in_sentence": "G. B. Pai and C. S. Rao, for the intervener No."}}, {"text": "G. Ramchandra Rao", "label": "LAWYER", "start_char": 7850, "end_char": 7867, "source": "ner", "metadata": {"in_sentence": "G. Ramchandra Rao and B. Parthasarath.v, for intervener No."}}, {"text": "B. Parthasarath.v", "label": "LAWYER", "start_char": 7872, "end_char": 7889, "source": "ner", "metadata": {"in_sentence": "G. Ramchandra Rao and B. Parthasarath.v, for intervener No."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 7914, "end_char": 7925, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and K. L. Hathi, for intervener No."}}, {"text": "K. L. Hathi", "label": "LAWYER", "start_char": 7930, "end_char": 7941, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and K. L. Hathi, for intervener No."}}, {"text": "S. Balakrishnan", "label": "LAWYER", "start_char": 7966, "end_char": 7981, "source": "ner", "metadata": {"in_sentence": "S. Balakrishnan, for intervener No."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 8006, "end_char": 8014, "source": "ner", "metadata": {"in_sentence": "B. Datta, for intervener No."}}, {"text": "RAY", "label": "JUDGE", "start_char": 8158, "end_char": 8161, "source": "ner", "metadata": {"in_sentence": "RAY, J.-The question which falls for determination in this appeal by special leave is whether the respondent is entitled to a declaration in a suit filed by her that her dismissal by the appellant municipality referred to as the municipality was illegal and void.", "canonical_name": "Ray"}}, {"text": "23 March, 1955", "label": "DATE", "start_char": 8527, "end_char": 8541, "source": "ner", "metadata": {"in_sentence": "Her services were terminated by a resolution dated 23 March, 1955."}}, {"text": "Municipality is goverened by the Bombay District Municipalities Act, 1901", "label": "STATUTE", "start_char": 8893, "end_char": 8966, "source": "regex", "metadata": {}}, {"text": "section 46", "label": "PROVISION", "start_char": 9127, "end_char": 9137, "source": "regex", "metadata": {"linked_statute_text": "The Municipality is goverened by the Bombay District Municipalities Act, 1901", "statute": "The Municipality is goverened by the Bombay District Municipalities Act, 1901"}}, {"text": "Nayak", "label": "OTHER_PERSON", "start_char": 10042, "end_char": 10047, "source": "ner", "metadata": {"in_sentence": "Sometime in February 1955 one Nayak brought his wife Nagarnma to Pandit Cottage l{ospital administered by the municipality."}}, {"text": "Nagarnma", "label": "OTHER_PERSON", "start_char": 10065, "end_char": 10073, "source": "ner", "metadata": {"in_sentence": "Sometime in February 1955 one Nayak brought his wife Nagarnma to Pandit Cottage l{ospital administered by the municipality.", "canonical_name": "Nagarnma"}}, {"text": "Nagamma", "label": "OTHER_PERSON", "start_char": 10136, "end_char": 10143, "source": "ner", "metadata": {"in_sentence": "Nagamma was admitted to the maternity section. ,", "canonical_name": "Nagarnma"}}, {"text": "24 March 1955", "label": "DATE", "start_char": 12394, "end_char": 12407, "source": "ner", "metadata": {"in_sentence": "The respondent handed over charge on 24 March 1955."}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 15204, "end_char": 15223, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 15499, "end_char": 15518, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1970) 2 S.C.R. 250", "label": "CASE_CITATION", "start_char": 17156, "end_char": 17175, "source": "regex", "metadata": {}}, {"text": "Tyagi", "label": "OTHER_PERSON", "start_char": 17497, "end_char": 17502, "source": "ner", "metadata": {"in_sentence": "In Tyagi's case (supra) the Warehousing Corporation was competent to make regulations not inconsistent with the Agricultural Produce (Development and Warehousing) Corporation Act, 1956."}}, {"text": "Corporation Act, 1956", "label": "STATUTE", "start_char": 17657, "end_char": 17678, "source": "regex", "metadata": {}}, {"text": "s1", "label": "PROVISION", "start_char": 17902, "end_char": 17904, "source": "regex", "metadata": {"linked_statute_text": "Corporation Act, 1956", "statute": "Corporation Act, 1956"}}, {"text": "Indian Airlines Corporation", "label": "ORG", "start_char": 19306, "end_char": 19333, "source": "ner", "metadata": {"in_sentence": "355\n\nIn the Indian Airlines Corporation case (supra) Sukhdeo Rai was suspended on certain charges."}}, {"text": "Sukhdeo Rai", "label": "OTHER_PERSON", "start_char": 19347, "end_char": 19358, "source": "ner", "metadata": {"in_sentence": "355\n\nIn the Indian Airlines Corporation case (supra) Sukhdeo Rai was suspended on certain charges."}}, {"text": "section 45", "label": "PROVISION", "start_char": 19627, "end_char": 19637, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 20443, "end_char": 20453, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964) 3 S.C.R. 55", "label": "CASE_CITATION", "start_char": 20903, "end_char": 20921, "source": "regex", "metadata": {}}, {"text": "(1964)\n\n5 S.C.R. 528", "label": "CASE_CITATION", "start_char": 20984, "end_char": 21004, "source": "regex", "metadata": {}}, {"text": "(1965) 3 S.C.R. 453", "label": "CASE_CITATION", "start_char": 21057, "end_char": 21076, "source": "regex", "metadata": {}}, {"text": "(1966) 3 S.C.R. 40", "label": "CASE_CITATION", "start_char": 21130, "end_char": 21148, "source": "regex", "metadata": {}}, {"text": "Tewari", "label": "OTHER_PERSON", "start_char": 21597, "end_char": 21603, "source": "ner", "metadata": {"in_sentence": "In Tewari's case (supra) this Court said that dismissal, temoval or reduction of an officer or servant might be effected under\n\nthe rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken."}}, {"text": "Article 3I", "label": "PROVISION", "start_char": 22095, "end_char": 22105, "source": "regex", "metadata": {"statute": null}}, {"text": "Naraindas Barot", "label": "OTHER_PERSON", "start_char": 22296, "end_char": 22311, "source": "ner", "metadata": {"in_sentence": "In Naraindas Barot's case (supra) this Court held that the order of tem1ination was bad in law since it contravened the provisions of clause 4(b) of the regulation and also the principles of natural justice."}}, {"text": "clause 4(b)", "label": "PROVISION", "start_char": 22427, "end_char": 22438, "source": "regex", "metadata": {"statute": null}}, {"text": "Vine", "label": "OTHER_PERSON", "start_char": 23838, "end_char": 23842, "source": "ner", "metadata": {"in_sentence": "In Vine's case (supra) the removal of Vine's name from the register was held to be a nullity."}}, {"text": "J11ffar Imam", "label": "OTHER_PERSON", "start_char": 24179, "end_char": 24191, "source": "ner", "metadata": {"in_sentence": "The status of the dock worker was recognised by this in\n\nJ11ffar Imam's case (supra)."}}, {"text": "Jaffar Imam", "label": "OTHER_PERSON", "start_char": 24211, "end_char": 24222, "source": "ner", "metadata": {"in_sentence": "In Jaffar Imam's case (supra) the\n\ntnnination of the employment in breach of clause 36(3) of the scheme made by the Central Government in exercise of the power conferred on it by section 4( 1) of the Dock Workers (Regulation of Employment) Act 1948 was held to be bad."}}, {"text": "clause 36(3)", "label": "PROVISION", "start_char": 24285, "end_char": 24297, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 24324, "end_char": 24342, "source": "ner", "metadata": {"in_sentence": "In Jaffar Imam's case (supra) the\n\ntnnination of the employment in breach of clause 36(3) of the scheme made by the Central Government in exercise of the power conferred on it by section 4( 1) of the Dock Workers (Regulation of Employment) Act 1948 was held to be bad."}}, {"text": "section 4( 1)", "label": "PROVISION", "start_char": 24387, "end_char": 24400, "source": "regex", "metadata": {"statute": null}}, {"text": "Dock Workers (Regulation of Employment) Act", "label": "STATUTE", "start_char": 24408, "end_char": 24451, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Barber", "label": "OTHER_PERSON", "start_char": 24771, "end_char": 24777, "source": "ner", "metadata": {"in_sentence": "Again in Barber's case (supra) under the memorandum issued by the Minister of H:ealth the Hospital Board was not to carry into effect the dismissal of consultant before a certain appeal procedure had been completed.", "canonical_name": "Barber"}}, {"text": "Barbar", "label": "OTHER_PERSON", "start_char": 24979, "end_char": 24985, "source": "ner", "metadata": {"in_sentence": "Barbar was dismissed without the prescribed procedure being followed.", "canonical_name": "Barber"}}, {"text": "McClelland", "label": "OTHER_PERSON", "start_char": 25551, "end_char": 25561, "source": "ner", "metadata": {"in_sentence": "A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly tenninated.", "canonical_name": "McClelland"}}, {"text": "McClel", "label": "OTHER_PERSON", "start_char": 25986, "end_char": 25992, "source": "ner", "metadata": {"in_sentence": "The legal basis of the decision in McClel/and's case\n\n(supra) is that the post was terminable only on certain specified grounds.", "canonical_name": "McClelland"}}, {"text": "BEG", "label": "JUDGE", "start_char": 27159, "end_char": 27162, "source": "ner", "metadata": {"in_sentence": "BEG, J.-The facts of the case before us, which are so clearly set out in the judgment of my learned Brother Ray, need not be repeated by me."}}, {"text": "Ray", "label": "JUDGE", "start_char": 27267, "end_char": 27270, "source": "ner", "metadata": {"in_sentence": "BEG, J.-The facts of the case before us, which are so clearly set out in the judgment of my learned Brother Ray, need not be repeated by me.", "canonical_name": "Ray"}}, {"text": "Section 26", "label": "PROVISION", "start_char": 28159, "end_char": 28169, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay District Municipal Act 1901", "label": "STATUTE", "start_char": 28188, "end_char": 28222, "source": "regex", "metadata": {}}, {"text": "Section 26", "label": "PROVISION", "start_char": 28374, "end_char": 28384, "source": "regex", "metadata": {"linked_statute_text": "the Bombay District Municipal Act 1901", "statute": "the Bombay District Municipal Act 1901"}}, {"text": "Section 26", "label": "PROVISION", "start_char": 29646, "end_char": 29656, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 46", "label": "PROVISION", "start_char": 30005, "end_char": 30015, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26", "label": "PROVISION", "start_char": 30035, "end_char": 30045, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26", "label": "PROVISION", "start_char": 30167, "end_char": 30177, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 46 and 48", "label": "PROVISION", "start_char": 30871, "end_char": 30888, "source": "regex", "metadata": {"statute": null}}, {"text": "Sankey", "label": "JUDGE", "start_char": 31244, "end_char": 31250, "source": "ner", "metadata": {"in_sentence": "v. Flaxton Dural Council(') Sankey, L. J., held that a local authority has \"no power\" to con- H travene its own bye-laws properly made."}}, {"text": "Russel", "label": "OTHER_PERSON", "start_char": 31471, "end_char": 31477, "source": "ner", "metadata": {"in_sentence": "Lord Russel pointed out that a bye-law has the \"force of law\"\n\nwithin the sphere of its legitimate operation."}}, {"text": "Section 21", "label": "PROVISION", "start_char": 32276, "end_char": 32286, "source": "regex", "metadata": {"statute": null}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 32287, "end_char": 32306, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 311", "label": "PROVISION", "start_char": 33561, "end_char": 33572, "source": "regex", "metadata": {"statute": null}}, {"text": "T, vagi", "label": "OTHER_PERSON", "start_char": 33687, "end_char": 33694, "source": "ner", "metadata": {"in_sentence": "If a guaranteed \"statutory status\" means only an express statutory p, rellection, such as the one found in Article 311 of 1he Constitution, and a rule made under a statutory power is not enough to confer it, there was none either in T, vagi's case. ("}}, {"text": "S1", "label": "PROVISION", "start_char": 34134, "end_char": 34136, "source": "regex", "metadata": {"statute": null}}, {"text": "51RSI MUNIC. V. KOM FRANCIS", "label": "JUDGE", "start_char": 34182, "end_char": 34209, "source": "ner", "metadata": {"in_sentence": "51RSI MUNIC."}}, {"text": "Byles", "label": "JUDGE", "start_char": 35634, "end_char": 35639, "source": "ner", "metadata": {"in_sentence": "Byles, J., in Cooper v. The Board of Works for We11dswor1/1 District('), said long ago about the primordial character of the opportunity to be heard before punishment :\n\n\"The laws of God and man both give the party an opportunity to make his defence, if he has any."}}, {"text": "Adam", "label": "OTHER_PERSON", "start_char": 36033, "end_char": 36037, "source": "ner", "metadata": {"in_sentence": "I remember to have heard it obseryed by a very learned man, upon such an occasion, that even God himsell did not pass sentence upon Adam before he was called upon to make his defence. '"}}, {"text": "Mahomood", "label": "JUDGE", "start_char": 36292, "end_char": 36300, "source": "ner", "metadata": {"in_sentence": "Such a principle has been described as a principle of \"Universa jurisprudence\" by Mahomood, J., in Queen Empress v. Po11hi(\" l\n\nTn Ridge v. Baldwin(') Lord Reid observed (at page 71)\n\n\"The authorities on the applicability of the Principle& of natural justice are in some confusion and so I\n\n(I) \\196'."}}, {"text": "S.180", "label": "PROVISION", "start_char": 36549, "end_char": 36554, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_364_401_EN", "year": 1973, "text": "orFICIAL LIQUIDATOR, SUPREME BANK LTD. v.\n\nP.A. TENDOLKAR (DEAD) BY L. RS. AND ORS.\n\nJanuar:r 19, 1973\n\n[A. N. GROVER, M. H. BEG AND A, K. MUKllERJEA, JJ.J\n\nComp<nie.< Act (1 of 1913), s. 235 and Companies Act (I of 1956), s. 543-Pou•er of Court to 1nake conzpulsive orders agalnst heirs of deccaJetl director in 111isfeaw111ce p1ocf.edings-Actio pei.rsonGlis 111oritt11 cunz persona-Scope of-Rig/it of appeal h, v end againt heir.\n\nBanking Companies Act (IO of 1949), ss. 45(G) and 45(0)-0fficial liquidc .. tor, •; vhether should apply for public exaniiluztion of directors under. s. 45(G) to s. 45 0(2) as amended by Act 33 of 1959-Scope of t/ze fresh petiocl of li111itatiQn-S. 45 (0) (2) pre1:ai/s over s. 235 Co111panies Act, 1913, ln relation o Banking Co111pa111es.\n\nPi1inciples deter111ini11g liabilit, v of nu;, iaging director and Board of J)irectors in 111isfeasance proceedlngs,\n\nOn -an app1icati-on tor winding up 'of a. bank a provisional Jiquidator was appointed on 15th March 1956. The appellant, who was there 'after appointed as Jiquidator filed an application o:n 27th August. -1960,.\n\nfor misfcasanc.~ proceedings under s. 45H of the Banking Companies Act, 1949, and s. 235 of the Indian.\n\nCompanies Act, 1913.\n\nUnder s. 45 0 (2) in respect of all other claims by the Banking Company against\" its directors, the period of limitation shall be 12 years from thz date of the accrual of such claims'..\n\nBy Amnding Act 33 of 1959 the words 'or five yea'rs from the date of the first appointment of the liquidator whichever is longer', \\Vere '3.dded at the end of the sub-section.\n\nThe official Jiquidator relied upon several reports made by the Rescrvq Bank and by others under orders of the High Court.\n\nThe procecdi, ngs \\\\Crc taken against the directors, managing director and officers of the company.\n\nTwo of the directors died while the proceedings '\\-; Cr~ pe; nt.!ing. 1\"hc Comany judge dismissed the proceedings against the employees as time-barred, and held that the heirs of the deceased l.Jirectors could not be proceeded against: but, in respect of the managing dircc:tor and those Directors \\liho were alive \\vhen he gave his <lecision it was held that the procecdCngs v.·.erc \\Vithin tin1e, bCir.g covered by the _special provisions of s. 450 of the Banking Compani-cs Act. The directors contended that the whole responsibility forthe fraud and misappropriation 'lay with the managing director.\" whohad \\vide powers under the Articles of ASsociation, and in whose favour the directors had executed a power of attorney. The rna; naging director however contended that he acted 'according to the policy and in accordance with directions of the directors in whose hands he \\\\'as a mere tool'.\n\nThe Company Judge determined the loss to the Company and gave directions as to the liabilities of the managing director n:rrd other directors. In appeal, the Division Bench reduced the total liabili tv of directors and ttte individual remaining' liability of too managing director though it placed a larger share of the .burden of contribution on .the manaing director. The appellant appealed agaimt the order in relation of the liability of the manoging direc!'or and two other directors.\n\nII ,,\n\nSUPREME DANK LTD. V. P. A: TENDOLKAR (Beg,/.) 365\n\nOne of these t\\vo directors died pendig the grant of his O\\\\'n appli cation for a certific-atc under Art. 136 _ of the Constitutio, n.\n\nHis heirs got . themselves impleadcd and contended that the proceedings against them could not continue and also .. on the mcfits regarding the liability of that director. HELD: (I) The contention that s. 235, Compa; nies Act, 1913, _could apply to these proceedings is erroneous because, the proceedings\n\nare governed expressly by the spcci-al la\\v on the subject contained 1n s. 45-0 of the Banking Companies Act,\n\n[376F-G]\n\n• (2) The plea that 12 years from the 'accrual of claims' had expired before s. 45-0(2) was amended by the Amending Act of 1959, and that, therefore; the enlarged period of limitation of 5 years from the date of the first appointment of the liquidator was not available to the Official Liquidator in the present case is also unacceptable .. The . facts necessary to determine whether any part of he claims ace.rued against any director have riot bec:n examined.\n\nSuch a point involvinr;; an investigation into fresh facts sho\\ving when clai1ns for any parttcuh1r item of loss to the company accrued or \\Vhen they accrued against the board of di'rectors, cannot be taken up for the first time in this Court when the matter was riot .raised and gone into the High Court. [376A-FJ\n\n(3) In any case, the amendment of s. 45(0)(2) conferred a new D nght of counting the period of limitation from the lirH appointment of the liquidator.\n\nThe exercise of that. right by the liquidator, acting on behalf of the company, certainly took place after .. the comnu::ncemcnt uf the Amending Act of 1959.\n\nThere was no question hcrc .. Q.f giving any retrospective operation to any right \\'.'hethcr procedural or_ substantive.\n\n[377A-C]\n\n(4) The maxim acti.o persOnalis 111orilt1r cu1n persona \\vould not be . applicable to actions based on co, nt:ract or. \\vhcrc a tort feasor's estate had bcncfittcclr from a wro11g done.\n\nThere is no .reason to extend the maxim to cases involving breaches of fiduciary dut_ies where the personal conduct of the deceased director has been fully inquired into and the only qucsticm for determination, on an appeal, is the extent of the liability. incurred by the deceased directdr. Such liabilitv must neccs~ sarily be confined to the assets or the estate left by the deceased director F in the hands of his successors.\n\nIn so far as a heir or_ legal representativ.: . has an interest in the assets of the deceased director and . fcpres.enU the estate, and the Jiquidator represents the interests of t.he compa:n)', . .the heirs as well as the 1iquidator should, 'in cquit}r, be able to question\n\na decision which affects the interests represented.\n\n[3800, E-A]\n\nIn re. East of England Bmzk-Feltem's Executors case, [1865] 1 Equi>ry Cc..ses 219. in re. United English and Scottish Assurance Co.--ex. parte Hawkins, [1867] 3 Ch. A.C. 787, in re. British. Guardian Life Assurance Company, [1880] 14 Ch. D. 3 335, S.B. Billimoria Official :Liqui dator v. CecUla Mary Desouza and Ors., A.LR. 1926 Lah. 624. Official Liquidators v. Jugal Kisliore and Ors., A.LR. 1939 All I. Manila/ B:, ijal v. Ve11Jr,1vanc/ras, C. Jadav & Ors., A.l.R. 1944 Boin. 193, Puttiani Veettil Afcnokki Si!nkarani Ncunblar v.\n\nKottayc.111 Bai1k bv Official Liquidator, Tellic/zary & Ors., A.LR. 1946 Mad. 304 and In re. The Peedan Ju/zarmal Bank Ltd., A; LR.: 1958 Mau 583 referred to. •\n\n(5) While s. 235 of the Companies Act 1913 corresponding to s. 543 of the Companies Act, . 1956, gives a power to the court to inquire into the conduct of any past or present di'rector; the sections\n\n•·\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C.R. • confine the power of the Court to make orders for repayment or resroration of money or property or contribution to the assets of the company •aainst the indjviduals occupying tbe capacities either the past or present mentioned therein; and, the power does not, on the language of the provisions, extend to making compulsive orders against the heirs of the delinquQJlt directo<s or officers. As the power to take the special proceedings is discretionary and does not exhaust other remedies, although the court may, as a matter of justice and equity, drop proceedings against the delinquent directors, managers or officers who are no longer alive, leaving. the complainant to his ordinary remedy by a civil suit agailnst the <IS,<iets of the deceased, yet, where nd injustice may be caused by continuing these proceedings against the past director even though he be dead, the proceedings could continue, after giving the person who may be interested, an opportunity to be heard. Jlut \"\"' such proceedings can only result in a declaration of tbe liability of a deceased director, because, the language of s. 235 of the 1913 Act does not authorise passing of orders to compel heirs or legal representatives to do any thing.\n\nSUch compulsive proceedings as may become necessary against those upon whom devolve the assets or estate of a deceased delinquent director, who may have become liable, could only lie outside the section. The power under the section would not extend beyond malting a declaration against the deceased director provided he in his Jife time, or, his heirs, after his death, h ave had due opportunity of putting forward the case on behalf of the allegedly delinquent director.\n\nU either a 1i9i<!ator or the heirs of • delinquent director against whom a declaration of liability has been made, can question the determination of liability of the deceased delinquent, who was alive at the time of the judgment against him, it is obvious that the appellate court could give a declaration either reducing or increasing the liability evein thouRh it may not be able to enforce it by an order under the sect'ion. If the declaration can be questioned by an appeal the liability can be not only wiped off or reduced but also increased C1J> an appeal heard after the death of a director held liable. [381F-H; 382A-B; 383ADl\n\nIn the p.r:vscnt case, the director whose representatives were impleaded had full opportunity of defending himself in the misfeasance proceed ings, he elloercbed his right of appeal against the order of the Company Judge, and the Division Bench reduced his liability. His heirs were heard on me<tits in the appeal to this Court, and any order passed by this Court oould only affect the assets or the estate of the deceased director.\n\nIn these proceedings an order cannot be passed against the heirs of the director so as compel them to do anything and the official liquidator or the co-directors may take any other prooeeding which may be open .~ them under the law so as to obtain the contribution of that director. !383£-G]\n\nErkm41r v. New Sombrero Phosphate Co., [1878] 3 App. Cas. 1218, llJJmskUI v. £ilW<Zrds, [1886] 31 01. D. 100, In re. Sharne, f1894] I Ch. 154, L.S. Rarrumwnny Iyer ,., Brahmayya cl Co. Official Uqui dators. HIJll\"\"\"'n ..,,, Liii., (1944) }6 Com Cas 270; New Fleming )pinning cl Weaving Co. Ltd. v. Xesson/i Na'ik and Ori., I.L.R.. 9 Bom. 373, Gopal Ga11tsh Abhyankar v.\n\nRamachandra Sadashlv Sahasrebudh-. I.L.R. 26 Bom. 597, Sakvahani Ingle Rao Sahib v.\n\nBhavanl Bod Sahib and Ors., I.L.R. 27 Mad. 588 and Padarath v.\n\nRaia Ram, (1182) 4 All. 235, referred to.\n\nSUPREME BANK LTD, v. P.A. TENDOLKAR (Beg, J.) 367\n\n( 6) It is a question of fact, to be determined upon the evidence in each cue, whether a Director, alleged to be liable for misfeasance, had acted reasonably as well as honestly and with due diligence, so that he could not be held liable for coimllving Qt fraud and misappropriation which takes place. A Direcror may be shown to be so placed and to have been so closely and so long ossociated persOJ!O)ly with the management of the Company that he will be deemed to be not merely cognizant of but liable for fraud in the conduct of the business of a Comp..., y even though no specific act of dishonesty is proved against him personally. He cannot shut his eyes to 'what must be obvious to everyone o examines the affairs of the Company even superficially. If h.e does so he could be held liable for qereliction of duties \\lllldertaken by him and compelled to make good the losses incurred by the Company due to his neglect even if he is not shown to be guilty of participating in the commission of fraud.\n\nIt is enough if his negligence is of such a character as to enable frauds to be committed and losses thereby incurred by the Company.\n\n[386E-HJ\n\nOn the evidence on record. the promoter or founder Directora who were there since the inception of the Bank, were cognizant of the nature of the dealings by the Managing Direcror and the officers of the Bank. The evidence showed that they had bee:n discussing matters relating to the management of the Company at the meetings of the Board where items of \"policy\", which benefited the Directvrs at the expense of the depositors, must have been discussed. They could not have been ignorant of the fact !lhit the Account Books contained fictitious <11>tries showing payments for shares by them when they had not actually paid for them. Nor could they be so innocent as not to know of the window dressing and presentation of false balance-sheets so as to conceal the true st-ate of affairs from the depositors for years.\n\nAny director conscious of his managerial responsibilities. who had cared to exami:ne the affairs of the Bank, could not have failed to find out what was really happening in the Bank.\n\nThe fact that these practices were tolerated for such a long period without any check by the Board of Directors indicates that the promoter Directors must be participants i.n the benefits of widespread misappropriati<?n even though they may have so operated as not to leave any traces of actual misappropriation by them in the records of the l!ank. [398E-G; 399C-EJ\n\nUpon the facts examined by the trial judge it is therefore clear that although the Managing Director was conducting the day to day affairs of the company and must therefore be held responsible for greater share of the loss incurred due to the misappropriation and misuse of managerial power yet his co-directors could not possibly be ignora.11t of the nature of such dealings and the activities of the employees and the Managing Director, simply because they had executed a power of attorney in his favour.\n\nThe Company Judge as well as the Division Bench had referred to the difficulties encountered in determing the actual total loss to the Company because of want of any reliable statement of account. This state of the records of the Bank was itself evidence of breach of thei'r duties by the Managing Director and the Board of. Directors to see that the business of the Bank was hOOleStly and eflic1ently conducted. The proved conduct of the other directors was such that an inference of their complicity in concealing the true state of affairs from depositors, presumablv because they were thenlselves benefitting from it, could rJOt be avoided. [388B-D E-F; 390E-F]\n\nIn re. City Equitabre~'Life 'Insurance Co., 1925 Ch. 407, Dovey v.\n\nCory, [1901] A.C. 477, In re Benham & Co., [1883] 25 Ch. D. 752 and Overand & Guma Co. v.\n\nGibb,\n\n{1944) 5 L.R. H.L. 480, r.cferrcd to. --\n\n(7) The Division Bench erred in reducing the total liability of. te directors an<l the individual liability of the ma; naging_ director. On his O\\\\.'ll admissio.n, the managing director was liable for a larger amo\":'nt.\n\n [393C-EJ\n\n(8) The Division Bench <il; o erred in holding that a good deal of evidence was not placed before the Court, which would have been ava'HabJc had the Official Liquidators asked for public examination of the Directors under s. 450 of the Banking Companies Act. The Official Liquidator could not possibly have done -anythblg more in __ his application than to rely on reports available to him and to prove the correctness _of their contents by producing, as witness-es, those persons \\\\.'ho conducted the investigation and made reports. AH that s. 45G requires is the submissio:n of a report showing that loss has been caused to the Ba1>king Company in the opinion of the Official Liquidator, and thereafter it is for the Court to decide whether the Directors should be publicly examined. In the present case; the. Company Judgedid order the public examination of the Directors. but they v.1ere un\\1.diling to give evidence. [395B-C; 396D-N; 397E-HJ\n\n(9) The Division .Be; nch furthr erred in holding that the allegations of improper conduct by the Directors in not exercising proper super-\n\n~ vision~ did not form the subject-matter of any separate issue framed by the Company Judge. The issues framed in the case were wide enough fo cover the question. The DErcctors _had not only an opportunity of n1ceting the alicgatio.ns contained in the petition. but also had knowlcUge of the material brought on record later. The Directors y; ere in no way handicapped by the alleged vagueness of charges or a failure to -frame issues more fully.\n\nThe Company Judge was therefore tight in c'onsi<lering the evidence adduced in the case.\n\n[396E-G~ 3990-E;\n\n398E-GJ Nagabai A1111nal and Grs. v. B.San1a Rao & Ors .• [1956] S.C.R. 45 J, followed.\n\n[Applying the above principles the liabilHv of the managing director a:nd the other directors, including .that-· of the deceased director were fixed and the case was 'remitted to the trial Judge for passing orders against the managing directors and the director who was alive \\\\'hen Judgment in proceedings under s. 235 of the Comp<inies Act, 1913,. wasgh:en.\n\nAs regards the liabilities of other deceased directors it was open to the. official liquidator and the director who is alive, to take any other proceedings which may be available u:n<ler the. law againSt his estate or assets in the hands of his hc'irs.] ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos; 195- 197, 234 and 300 of 1967.\n\n- . Appeals bly a certificate from the judgment an\\! order . dated January 7, 1966 of the Mysore High Court at Bangalore in Company Appeals Nos. 9 and IO of 1967.\n\nS.· C, Sundraswamy, Ramshwar .Nath and K.Suryanarayana II Rao, for the appellants (in C, As. Nos. 195-197 and Respondent No. 1 (in C. As. Nos. 234 and 300). ·\n\n, .\n\n...... ..\n\n' '\n\n• •\n\nSUPREME BANK LTD. v. P.A. TENDOLKAR (Beg, J.) 369\n\nC. K. Daphtary, S. K. Mehta, K. R. Nagaraja and Qamuruddin, for appellant (in C.A. No. 234) respondent No. 1 (in C.A. No. 195).\n\nV. S. Desai and P. C. Bhartari, respondent No. 2 (in C.As. 196 and 197) and respondents Nos. 3-6 (in C.A. No. 300).\n\nB R. B. Datar, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nBEG, J.-These are five appeals by grant of certificates under Article 133(l)(a) of the Constitution by the Mysore High Court where the orders of the leamed Company Judge, in misfeasance c proceedings, under Section 45H of .the Banking Companies Act, 1949, (hereinafter referred to as 1the Act'), read with Section 235 of the Indian Companies Act, 1913, (hereinafter referred to as the Act of 1913') had been modified by a Division Bench. These proceedings were instituted bi)- >the Official Liquidator againilt seven Directors, including the Cha_i_rman of the Board of Directors and D\n\nthe Managing Director, and the Cashiers, the Accountant, too Branch Managers, another officer, and an auditor of the Supreme Bank of India Ltd., Balgaum, (hereinafter referred to as 'the Bank') under liquidation. The Bank, incorporated on 27-5-1939, commenced business on 6th October, 1939. It suspended business on 27-11-1954 as a result of gross mis-management which enabled large sums of money to be misappropriated and false and fictitious ell'lries to be made in its account books.\n\nOut of the seven Directors mentioned above, five, namely, S. G. Pant, 'the Chairman of the Board of Directors, S. K. Sawant, the M?naging Director from July, 1946. P. A. Tendo[kar, D. R.\n\nAngolkar, and L. S. Ajgaonkar, were promoter or founder Directors. The sixth Director, R. W. Forwal, joined the Board in 1961.\n\nThe seventh Director, R. N. Kalghatgi, took charge of his office in July, 1953, on the death of his elder brother G. N. Kalghatgi.\n\nBefore the Company Judge could give his decision, on 8-11-1963, S. G. Pant, the Chairman of the Board of Directors, had expired on 29-8-1961. and D. R. Angolkar, Director, had died on 10-10-1962. During the pendency of the applications for certification, under Article 133 of the Constitution, for appeals to this Court, another founder Director, P.A. Tendolkar died, 10-8-1966.\n\nso that his legal representatives were substituted for subsequent proceedings.\n\nThe Official Liquidator had alleged, in the application for misfeasance proceedings, dated 27-8-1960, that \"the Directors and the employees Of the Bank had misapprooriated or become liable or acoountablle for a total sum of Rs. 26,000/ ·\" due to the Com-\n\nSUP&EMB COURT REPORTS [1973] 3 s.c.R.\n\npany, and were guilty of \"misfeasance, breach of trust, and fraudulant conduct in relation to the Company\". The Official Liquidator had prayed that the Court may be pleased to take cognizance of the application against the Respondents and examine their conduct and \"direct them all or such of them as may be held liable, particularly or generally, severally or jointly, and, in such manner as it may deem just, fit, and proper, to repay and restore the money of the Bank, together with interest, or, to contribution such amounts to the assets of tthe Company by way of compensation in respect of mis-application; retainer, misfeasance or breach of trust\" as the Court may deem just. Thus, the prayer for relief covered every type of order tthe learned Company Judge could consider fit and proper to meet the needs of the case.\n\nWe may now glance at the background of investigations and reports made which led up to the misfeasance proceedings, befor.: we consider the issue raised and decision given on these by the learned Company Judge and then by the Division Bench,\n\nOn 7-3-1951, after the coming into force of. the Banking Companies Act 1949, on 16-3-1949, the Reserve Bank of India had given its short inspection report ( A-1 ) on the affairs of the Bank under Section 22 of the Act. This n::port showed that even necessary formalities with regard to opening of deposit accoums were not complied with, over-drafts were allowed in 'savings' Bank accounts, unsecured advances were disproportionately large, rates offered on some fixed deposits wer\" abnormally high, the Bank was constantly blorrowing from other Banks by pledging its investments, 16% of the advances were irregular, records to indicate the correct value of goods pledged or hypothaticated were not maintained, effective steps against those who obtained proved irregular advances were not taken, sufficient information was not available about the means and standing of the borrowers, neither periodical returns, particularly of advances by ithe Branches, were made, nor were the Branches inspected periodically, the usual practice of Balancing the ledger at frequent intervals was not observed, and account books and records of the Bank were not duly maintained.\n\nThe Reserve Bank, therefore, suspended its decision about issue of a licence to the Bank to carrv on banking business until the Bank had removed these shortcomings.\n\nOn 5-3-1953, a second report (A-2), under Section 22 of the Act, was given by the Reserve Bank, in which it was observed. inter-alia, that the Bank had not rectified the defects painted out in the' previous inspection report, that the Board of Directors did not show sufficient interest in the working of the Bank, and that there was no proper supervision and control over the activities of\n\nSUPllBME BANK LTD. v. P.A. TENDOLKAR (Beg, J.) 371\n\nthe Managing Director. The question whether the Bank was eligi!ile or not for a licence was still left undecided after listing irregularities found under fourteen heads.\n\nOn 13-9-1954, a very detailed inspection report (A-3), under Section 35, sub.s(l) of the Aot, carried out on 26-3-1954, was sent by the Resenle Bank to the Bank, with a covering letter, in which the following conclusion was recorded :-\n\n\"On the basis of the above report, it appears that the banking company is conducting its affairs in a manner detrimental to the interests of its depositors.\n\nThe Reserve Bank of India, therefore, proposes to give it a notice in writing in terms oi the first proviso to subsection (2) of Section 22 of the Act that a licence to carry on banking business in India cannot be granted to it''. ,,.-\n\nThe Bank was given an opport11nity to make a representation against the report.\n\nAfter suspension of payments by the Bank on 26th November. 1954, the Bank had applied, on 1-12-1954, 'to the High Court of Bombay, under Section 37 of the Act, praying for the grant of a moratorium and for opportunity to be given to reconstruct the Banking Company as a going concern.\n\nAn iD'terim order was passed by the Bombay High Court granting moratorium for a period of two months and staying all actions against the Company for this period. Shri V. R. Kothagi, an Advocate of Belgaum, was appointed as Special Officer of the Bank under Section 37(3) of the Act, with powers to file suits.\n\nUnder the directions of the Bombay High Court the Reserve Bank deputed Shri Amrit Lal Bhatia to inspect the records and the working of the Bank and to submit a rep<)rt under the proviso to sub.s (2) of Section 37 of the Act. This report, submitted on 13-1-1955\n\n(A-4), disdosed a deplorable state of accounts G which contained a number ef false and fraudulent entries, want of supervision by either the officials or the Directors, unauthenticated erasures and alterations inthe accounts, and a shortage of cash to the extent of 2.01 lakhs. It showed that the total liability of the Bank, excluding its share capital, amoull'!ed to Rs. 14.83 lakhs.\n\nH On 20-12-1954, the Directors of the Bank, wfth the concurrence of the Special Officer, had appointed Shri K. Y. Wagle as Officer to examine the records of the Company with a view to\n\ne\\plore the possibilities of its reconstruction. This report, dated J 6-2-1955 (A-21) said :\n\n\"On going through the books of accounts, it is observed that the mis-appropriation penetrates imo the books from 1948 and still earlier and the amounts misappropriated are through entries from (a) Cash, ( b) Bank accounts with other Bankers, ( c) Branch accounts\".\n\nA list of cash deficits and fictitious entries who also given here.\n\nThe report mentions that the assets and liabilities of 1the Bank could not be verified as no regular audit had been carried out and that the records had been maintained in \"a most deceptive manner\" so that 1the amounts involved could not be ascertained correctly.\n\nThe total amount \"involved in the fraud\" was assessed rouhly at Rs. 4.26 lakhs. It said : \"So far an amount of Rs. 3. 75 lakhs has been traced from various sources.\n\nThe balance can be traced provided the accounts are reconciled''.\n\nAfter this report, the Bombay High Court rejected the application for further moratorium and for a reconstruction of the Company.\n\nOn 8-3-1956, a deposi!or of tlte Bank applied to the Bombay High Court for the winding up of the Banking Company.\n\nOn 13-3-1956, a provisional liquidator was appointed, and, on J 6-4-1956, the Bank was ordered to be wound up. As a result of reorganisation of States, the winding up proceedings were transferred to the High Court of Mysore, and, the Official Liquidator at the Mysore High Court was appointed as the Liquidator of the flank.\n\nOn 22-7-1958, the Official Liquidator brought to the notice of the Company Judge an elaborate report\n\n(A-9), dated 10-5-1957, made by M/s. D. D. Joshi & Co., Auditors, appointed by the Direction of the Bank themselves. Here, after a survey of the Bank's history and conduct of its affairs by its Directors and officers we find, among 1the conclusions. recorded ·\n\n\" ( I ) The Directors, by accepting a responsibility which they never intended to accept, laid the foundation for the fraud. They have misled the share holders and the depositors b!)' presenting false Balance Sheets and Profit and Loss Accounts, at least from 1946 onwards. knowing them to be false.\n\n(2) The Managing Director Shri S. K. Samant, the Accountant Shri R. S. Deshpande and the three Cashiers.\n\nK. V. Saudi. V. K. Nadgouda, S. N. Ajrekar took full advanta2e of the weakness of the Directors, the neglij!ance of the Auditors, and fraudulently mis.appropriated the monies individually and collectively\".\n\nSUPREME BANK LTD. v. P.A. TENDOLKAR (Beg, J.) 373\n\nThe Chartered Accountants were unable to ascertain 'the exact amounts misappropriated.\n\nThey gave the following reasons for coming to the conclusion that the \"Balance Sheets and the Profit and Loss Accounts for the years from 31-3-1946 onwards are false and incorrect\":\n\n(a) The staff and the Directors know that the Bank had not received. the share amount for the majority of the shares allotted which was made up of the fictitious credits given against these share applications, and which did not represent the actual physical cash on hand on that day.\n\n(b) The amount of unclaimed dividends taken to\n\ninterest account was illegal and against the provisions of the .. Articles of Association of the Bank.\n\n( c) The Auditors, when they counted the cash on 24th March, 1954, could have known that the actual cash on hand verified tly them was far short of <the cash balance shown by the Day Book of that day had they tallied the cash counted by them with the Day Book.\n\n( d) The Bankers' Balances as shown in the Balance Sheets did net show the correct balances inasmuch as false debits were made to these Banks by misappropriating the amounts shown as sent to the Bank for credit.\n\n( e) The remission of Rs. 1,000 shown in the Profit and Loss Account of 1947 is a misnomer and the wording seems to have been purposely used to mislead all concerned. Moreover, there is no sanction also for this remission.\n\n( f) Due to suppression of overdrafts in the Savings Bank Accounts, the figures oi deposits and consequently of loans, as shown in the Balance Sheets were incorrect, etc. etc.\n\nIn D. D. Joshi Co's report it is also stated :\n\n\"On the event of the commencement of our work, the Directors had resolved to repay a part ( 10% ) of the deposit amounts to the depositors, This was the best opportunity to bring forth oass, books and other records the J?05session of the depositors.. for getting the deposits verified for our purposes. The matter was discussed\n\nwith the Chairman and some of 1the Directors and we handed them a specific form for obtaining letters ol confirmation of balances from the depositors. The Chairman and the Directors assured us to give due publicity to the matter before disbursing the amount and upon insisting on the production of pass-books and other records available from the depositors at the time of making the payments. However, it was later on discovered that this proposal of ours had not been carried out and that the deposit amounts were being disbursed without insisting upon the production of the pass-books.\n\nWhen the matter was again referred to the Chairman we were surnrised to learn 'that the Directors had not approved o( our proposal on the ground that it would have caused unnecessary inconvenience and harassment to the depositors ( Annexure No. 4). By this failure on the part of the Chairman and the Directors a vary good\n\nopoortunity available to us and the management for verifving the accounts of the Bank from sources independent of records at the Bank was denied and lost to us. Thus, the Directors themselves who had apoointed us and promised us all facilities and co-operotion did not ex1end the same as and when it was essential. From the facts !hat came to our notice subsequentlv durin~ the course of our investigation. it •ee1rn th\"t this act of theirs might even have been deliberate\".\n\nAfter giving 'the Directors and Officers of the Bank due opportunitv to rePlv to D. D. Joshi Co's report. the Official Liauidator had filed the apnlication of 27-8-1960, under Section 45H of the Act read with Section 235 of the Indian .Companies Act. on the s1reneth of all the above mentioned reports. copious extracts from which were1 annexed to a dulv sworn aflidavit supporting the application for misfeasance proceedings.\n\nIn reolv to the application. the Directors complained of vegueness and lack qf particulars of the alleqed wrongful acts and omissions. Thev also relied strongly on Articles 109 and 112 of the 'Articles of Association' relating to the powers and duties of Managing Director in whose favour thev are said to have executed a oower of artornev. Thev tried to out the whole responsibili!v for the alleged fraud and misanoronriations and loss on the Managing Director. S. K. Samanth. annointed in 1946 and some officers of the Bank. denied that the Managing Director consulted them before taking anv action in !he d•v to dav transactions of the Bank. On the other hand. the Managing Director.\n\nS. K. Samanth. pleaded that the whole business of the Bank was\n\nSUPREME BANK LTD. V. P.A. TENOOLKAR (fJeg, J,}\n\n37 S\n\nconducted \"according to the policy and in accordance with the instructions of the Board of Directors\" in whose hands he was \"a\n\nmere tool.\" All the opposite parties to the application pleaded that the proceedings were barred by limitation.\n\nThe learned Company Judge had dismiSsed the proceedings against employees of the Bank as time barred on the ground that their cases were governed by the limitation provided for in Section 235 of the Companies Act of 1913, the application of Section 543 of the Companies Act of 1956 having been. expressly exclnded by Section 64 7 sub. s ( 2) oi. that Act, in a' case in which the winding up of the Company had begun, as it did in the instant case, before the commencement of the 1956 Act on 1-4-1956.\n\nBut, in respect of the Managing Director and those Directors who were alive when the learned Company Judge gave his decision on 8-11-19~3, it was held that the proceedings were covered by the special provisions of Section 45(0) of the Banking Companies\n\nAct applicable to them. The first two clauses of Section 45(0) read as follows :\n\n\"45 ( 0). Special Period of limitation :- ( 1) Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908) or if any other law for the time being in before,, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the banking Company shall be excluded.\n\n(2) Notwithstanding anything to the contrary con•\n\ntained in the Indian Limitation Act, 1908 (IX of 1908) or Section 235 of the Indian Companies Act, 1913 (VII of 1913), or in any other law for the time being in force, there shall be no period of limitation for the recovery of arrears of calls from any Director of Banking\n\nCompany which is being wound up or for the enforcement by the Banking Company against any of its directors of any claim based on a contract, express or implied; and in respect of all other claims by the Banking Company against its Directors, the period of limitation shall be twelve years from the date of the accrual of such claims\".\n\nBy the Act XXXIII of 1959. the following words were added at the end of Section 45 ( 0 )(ii) : \"or five years from the date of first appointment of the liquidator whichever is longer\".\n\nThe Company Judge had held that the nature of the claims in the misfeasance proceedings against the Diredors in the instant case fell under the category of \"all other claims\", mentioned in Section 45(0)(ii), for which the period of limitation was either twelve years from the dates of \"accrual of claims\" or five year; from the date of. the first appointment of the Liquidator \"whichever is longer\", The learned Company Judge held that the first clause of Section 45 (0) of the Banking Companies Act, 1913. <lid not apply to a case in which the period of limitation had not begun to run before the filing of the winding up petition, and that the misfeasance proceedings against D; rectors, having tarted,\n\non 27-8-1960, within five years of the first appointment of the liquidator on 13-3-1956, were clearly within time. Incidentally, the finding that limitation did not begin running before filing the misfeasal)ce application implied th:rt this was not a case in which a claim had \"accrued\" before the filling of the application. The objection.that Section 45(0) of the Act 'would apply to claims made by the Company itself and not to those by a liquidator was rightly over-ruled on the ground that the Liquidator really represented the Company and that a claim made by the liquidator w:1s • therefore, a claim \"by the Banking Company\"', as was held in Jaivala Prasad Vs. Official Liquidator,(1) within the meaning of this expression used in Section 45(0) of the Act. The Division Bench, in five appeals by the Directors, had concurred with the Company Judge's views on the issue of limitation.\n\nIt has, however, ben urged before m, on behalf of the Directors, that, the period of . three years, provided by Section 235 of the Companies Act of 1913, as well as 12 years from \"accrue! of claims\", prescribed by Section 45(0) (ii) of the Act. having expired before the Act XXXIII of 1959, by which Section 45 (O)(ii) was amended on 1-10-1959, time barred claims couhl not be revived whether the case was governed by the limitation laid down in Section 235 of the Act of 1913, or that in Section 45 (0) of the Act.\n\nThe contention that Section 235 of the 1913 Act could apply to these proceedings, governed expressly by the special law on th~\n\nsubject contained in Section 45(0) of the Act, is plainly erroneous. The plea that twelve years from the \"accrual of claims\" had expired before Section 45(0)(ii) was amended on 1-10-1959 h\n\nalso unacceptable.\n\nIt does not seem to have been specifically advanced in the High Court so that the facts may be examined there to detennine when any part of the claims \"accrued\" against any Diredor. Such a point, it is obvious, involving an investigation into fresh facts, showing when claims for any particular 'terns of Joss to the Company accrued, or when they accrued\n\n(l) A.l.R.1962 All. p. 486.\n\n.. •\n\nB • 'y\n\n~,;\n\n• E\n\nF •l ' 7\n\n'( I) ' ',\n\n. II\n\n:.:t\n\nA .. ~\n\n• B y\n\nc -'\n\nD •\n\nI....~ ..\n\n\\1 F \\\n\nG •\n\n• H\n\nSUPREME RANKLTD. V. P.A .. TENDOLKAR (Beg, J.) 377\n\nI against its Board of Directors itself cannot be taken up for the first time in this Court: It was not taken, and, therefore, not gon~ into in the High Court. '\n\nIn any case, the amendment of Section '45(0)(ii) of the Act had conferred a new right of counting the period of limitation from •rhe first appointment of the liquidator. The exercise of that right by the liquidator, acting on behalf of the Company, certainly took place after the commencement of Act XXXIII of 1959.\n\nThere was no question here of giving any retrospective operation to any right whether procedural or substantive. We, therefore, think that the claims against the Directors, which were prima\n\nfacie made within time,· were not shown to have been barred by limitation. ·\n\nWe will now consider another question of preliminary nature with regard to the liabilities of legal representatives of the deceased respondents. The Company Judge had held that misfeasance proceedings were of a special nature involving an enquiry into' the alleged wrongful conduct. of Directors personally. The liability of a Director for such wrong doing was held to b~ of personal character which vanished with the death of a Director, Reliance had been placed, by the Company Judge, on : In Re, East of England Bank-Fe/tom's Executors Case,( 1) which had been followed in Re : United English and Scottisl1 Assurance Companyex-purte Hawkins,(\") and in Re: British Guardian Life Assurance Company.(') The learned Judge observed that 1the principle lai<l down in these English cases had been followed by Indian High Courts in the. cases mentioned by him which were : (I )\n\nS. B. Billimpria, Official Liquidator Vs. Cenilla Mary Desouza & Ors.,(')\n\n(2) Official Liquidators Vs. /ugal Kishore & Ors.,(')\n\n(3) Mani/a/ .Brijlal Vs, Vendravandas C. Jadev & Ors.,(') (4) Pattiam Veetti/ Menokki Se11kara111 Nambiar Vs. Kottayam Bank b.v Official Liquidator, Te/lichery & Ors.,(1) (5) In Re: The Peerda11 Juhaymal Bank Ltd.( 8 ),\n\n. 'The learned Judge, •therefore, held that proceedings could not continue against the heirs of either the Chairman of the Board, S. G. Pant, or the Director Angolkar, who had died before the Company Judge gave his decision on 8-11-1963. The correctness of the decision of the Company Judge to exempt heirs and legal representatives of the Chafrman Pant and the Director Angolkar was not questioned by any party in the five appeah before the Division Bench. Their possible liabilities, as persons upn whom the assets and properties of Pant and Angolkar may\n\n(I) 1865 (I) Equity C'Ses 219. <2) 1867 (3)ch. APPe'I Ca\"s 787@791.\n\n(3) 1880 (14) ch. Division 335.\n\n(4) A.1.R. 1926 Lahore 624. . (5) A.1.R. t939 All. I.\n\n(6) AJ.R. 1944 Bom. 193.\n\n(7) A.1.R. 1946 Mad. 304.\n\n(8) A.LR. 1958 Mad. 583.\n\nhave devolved, do not, therefore, call for a decision from us. But the general question of liability of heirs and legal representatives of delinquent Directors has arisen . before us in respect of the liabiility, if any, of the heirs and legal representatives of Director Tendolkar who died on 10-8-1966 pending the grant of his application for certification of fitness of the case under Article 13 3 of the Constitution for an appeal to this Court. Tendolkar's heirs got themselves impleaded so as to prosecute the application for certification of fitness of the case for appeal, and, after obtaining it, they filed their appeal in this Court against the order of the Division Bench holding Tendolkar liable. Learned Counsel representing them was heard in suppor~ of objection that the proceedings against them could not continue and also. on merits of the order determining the liability of Tendolkar. Learned Counsel for the Official Liquidator, on the other hand, pressed his appeal against the order of the Division Bench reducing the liability of Tendolkar.\n\nIn Re : East of Eng/and Bank-Fe/tom's Executors Case (Supra), the question was left undecided whether the remedy against the estate of a delinquent Director was bY way of a surt or in winding up proceedings. It was certainly not held there that there was no remedy. In Re : British Guardian Life Assurance Company (Supra), it was observed that the Directors were liable for breaches of trust for moneys not rightly invested, although, it was held that, on the language of Section 165 of the Enlish Companies Act, which was very similar to Section 235 of the Act of 1913, these summary proceedings were not available against the heirs of a delinquent Director. English Courts have, however, held that equitable relief against the d.eceased Director's estate, which may have benefitted from breach of trust, was not biarred. (See: Erlanger Vs. New Sombrero Phosphate Co.;( 1) Ramski/l Vs. Edwards;(') Re : Sharne(').\n\nIn W. S. Ramaswamy Iyer & Anr. Vs.\n\nBrahmavya & Co., Official Liquidators. Hanuman Bank Ltd.,(')., a Division Bench of the Madras High Court held that, as the position of a Director of a Company was analogous to that of a trustee with regard to powers over the funds of the Company, and, as his office was of a fiduciary character, he would be liable for breaches of trust if he misused his powers. It was held that the liability incurred by Directors by such misuse of power was neither exhausted by proceedings against them in the course of a Company's liquidation nor did it vanish with the death of a Director.\n\n(1) (1878) 3 App. cas. 1218.\n\n(3) (1892) I Ch. 154.\n\n(2) (1886) 31 Ch. Dvn. JOO.\n\n(4) Company Cases Vol. 36, p. 270.\n\nff I\n\nSUPREME BANK LTD. V. P.A. TENDOLKAR (Beg, J.) 379\n\nIn the New F/emirg Spinning & Weaving Co.\n\nLtd.\n\nVs.\n\nKessorji Nalik & Ors.,(') it was held that misfeasance by a Director was a breach of trust and not merely a personal default so that the estate of the deceased Director would be liable to make good the loss caused to a Company by the misfeasance of the deceased. But, this was a case in which a regular sui1 had been filed.\n\nIn Official liquidators Vs. Jugal Kishore & Ors., (Supra), it was pointed out that Section 235 of the Companies Act 1913 contemplates proceedings against Directors and no~ against their heirs or legal representatives, and that, although, Section 306 of the Indian Succession Act gives a right to continue even special proceedings against executors or administrators of the estate of the deceased, yet, it did not e:ttend to mere heirs and legal representatives. It was also ob!>erved here that the provisions of Section 235 of the Companies Act of 1913 do not bar suits by the Official Liquidator, in suitable cases, against the heirs of the deceased.\n\nSimilar views were adopted in : S. B. Blllimoria. Official Liquidator Vs. Cecilla Mary De' Souza' & Ors. (Supra); Mani/al Brijlal Vs. Vendravandas C. ladev & Ors. (Supra); and in Re : The Peerdan luharmal Bank Ltd. (Supra).\n\nTwo cases, Gopal Ganesh Abhyankar Vs.\n\nRamchandra Sadashiv Sahasrabudhe(') and, Sakyahani Ingle Rao Sahib Vs.\n\nBhavani Bozi Sahib & Ors.,(') were cited on the application of the maxim \"actio personalis moritur cum personal\".\n\nIn Abhyankar's case (Supra) the Defendant against whom a suit for damages for defamation had been decreed had died during the pendency of the appeal against the decree pssed. At the hearing of the appeal, the plaintiff had objected that the appeal had abated. The Bombay High Court held that the Defendant's legal representatives had a right to continue the proceedings and to question the decree. The High Court referred to several cases, including a Full Bench decision of the Allahabad High Court in Padarath Vs. Raja Ram,(') where Edge, C.J. had said :\n\n\"I have always understood the law to 1:1e that, in those case in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff\",\n\nThen the Court held :\n\n\"The result of these authorities would cfearly seem to be that, where the claim has been perfected by a\n\njudgment, t)l.e nature of the relief claimed on appeal\n\n(I) l.L.R. IX Born. 373.\n\n(3) I.L.R. 27, Mad. 58R. 9-L796Sui:.c .1./73\n\n(2) I.LR. 26 Bombay 597.\n\n(4) 0882) 4 All. 235.\n\nstands on a different footing and there will be no abatement\".\n\nWe think that the ratio decidendi of this case helps the Official Liquidator appellant. In S. I. JJ.ao Sahib's case (Supra) it was held that a reversioner's right was \"personal\" which vanished with the death of the plaintiff. Hence, rthe appeal of the plaintiff, in which the heirs had been substituted, was held to have abated.\n\nWe fail to see how this case helps the heirs of Tendolkar.\n\nThe decisions of our High Courts, while keeping in view the consideration that a misfeasance proceeding, c; ontemplated by Section 235 of the Act of 1913, involving an inquiry into the personal conduct of persons acting in capacities mentioned therein, may attract the applicaion of the maxim \"actiO personalis moriture cumpersona\", have proceeded, very rightly, more on an interpretationof the provisions of Section 235 than on the application of that maxim.\n\nThe maxim Actio persona/is moritur cum persona, as pointed in Winfield's \"Law of Tort (Eighth Edn. p. 603-60S), was an invention of English Common Lawyers. It seemed to have resulted from the strong quasi-criminal character of the action for trespass. Just like a prosecution for a criminal offence, the action for trespass, which was 'lthe parent of much of our modem law of tort\", was held, by applying this maxim, to be incapable of surviving the death of the wrongdoer, and, in some cases, even of the party injured .. The maxim, with its extensions, was criticised by Winfield and found to be \"pregnant with a good deal more mischief than was ever born of it\". Whatever view one may take of the justice of the principle, it was clear that it would not be applicable to actions based on contract or where a tort feasor's estate had benefitted from a wrong done. lrts application was generally confined to actions for damages for defamation, seduction, inducing a spouse to remain apart from the other, and adultery.\n\nWe see no reason to extend the maxim, as a general principle, even to cases involving breaches of fiduciary duties or where the personal conduct of. the deceased Ditector has been fully enquired G into, and the only question for de<ermination, on an appeal, is the extent of the liability incurred by the deceased .Director. Such liability must necessarily 'be confined to the assets or estate left by the deceased in the hands of the successors. In so far as an heir or legal representative has an interest in the assets of the deceased and represents the estate, and the liquidator represents ff rthe interests of the Company, the heirs as well as the liquidator should, in equity, be able to question a decisbn which affects the interests represented.\n\nSUPREME BANK LTD. V. P.A. TENDOLKAR (Bog, J.) 381\n\nWe may now consider the meaning and effect of Section 235 of the Act of 1913 which reads as follows :\n\n\"235. Power of Court to assess damages against delinquent directors, etc.-( I) Where, in the course of winding up a company, it appears that any person who has taken part in the formation or promotion of the company, or any past or present Director, Manager or liquidator, or any officer of the company has misapplied or retained or become liable or accountable for any money or property o{ the company, or been guilty of .any misfeasance or breach of trust in relation to the\n\ncompany, the Coun may, on the application of the liquidator, or of any creditor or contributory made within three years from the date of the first appointment of a liquidator in the winding up or of the misapplication, retainer, misfeasance or breach of trust, as the case may be, whichever is longer, examine into the conduct ol the promoter, director, manager, liquidator or officer, and compel him to repay or .restore the money or property or any part thereof respectively with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the Company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust as the Court thinks just.\n\n(2) This section shall apply notwithstanding that the offence is one for which the offender may be crimi nally responsible.\" It will be seen that, while Section 235 of the Act of 1913, like Section 543 of the Companies Act ol 1956, to which it correspond~, gives the power to the Court to enquire into the conduct of \"any past or present Director\", yet, both Section 235 of the Act of 1913 and Section 543 of the Companies Act of 1956 confine the power of the Court to make orders for repayment or restoration ol money or property or contribution to the assets of the Company against the individuals occupying the capacities, either in the past or present, mentioned therein. This power does not, on the language of these provisions. extend to making compulsive orders against heirs of delinquents. As the power to take these special proceedings is discretionary and does not exhaust other remedies, although, the Court may, as a mat!er of justice and equity, drop proceedings against delinquent Directors, Managers, or Officers who are no longer alive, leaving the complainant to his ordinary remedy bv a civil suit against the assets of the deceased, yet, where no injustice mav be caused b~ continuing these proedings against a past Director, even though he\n\nbe dead, the proceedings could continue after giving persons who may be interested opportunities to be heard. But, even such proceedings can only result in a declaration of the liability, of a deceased director, because the .language of Section 235 of the Aot of 1913, as already noticed, does not authorise passing of orders to compel heirs or legal representatives to do anything.\n\nSuch compulsive proceedings as may become necessary against those upon whom devolve the assets or the estate oi a deceased delinquent Director, who may have become liable, could only lie\n\noutsid~ Section 235 of the Act of 1913.\n\nThere was nothing in the Act of 1913 which corresponded to Section 542 of the Companies Act of 1956, the relevant part of which lays down :\n\n\"542. Liability for fraudulent conduct of business :- ( l) If in the course of the winding up oi a company, it appears that any business of the company has been carried on, with intent to defraud creditors of the Company, or any othsr persons, or for any fraudulent purpose, the Court, on the application of the Official Liqui- . dator, or the liquidator or any creditor or contributory of the Company, may, if it thinks it proper so to do, declare that any persons who were knowingly parties to the carrying on of the business in the manner aforesaid shall be personally responsible, wi!hout any limitation of liability, for all or any of the debats or other liabilities of the company as the Court may direct.\n\nOn the hearing of an application under this subsection the Official Liquidator or the liquidator, as the case may be, may himself give evidence or call witnesses.\n\n(2) (a) Where the Court makes any such declarntion, it may give such further directions as it thinks proper for the purpose of giving effeot to that declaration . (b) •••• •••• ( c) The Court may, from time to time, make such\n\nfurther order as may be necessary for the purpose of enforcing any charged imposed under this sub-section, (d) •••• •••• • •••\n\n(3) (4) •••• •••• ...,\n\nSUPREME BANK LTD, V. P.A. TENDOLKAR (Beg,!.) 383\n\nIt may be possible ('though we need express no final opinion on the matter) where a proceeding under Section 543 is covered also bty the terms of Section 542 of the Companies Act of 1956, to give directions to persons other than 1those whose conduct is enquired into, including directions to heirs and legal representatives, for the purpose of enforcing a declaration. But, we think that the power under Section 235 of the Aot of 1935, which corresponds to Section 543 of the Act oi 1956, would'not extend beyond making a declaration against a deceased Director provided he, in his life time, or his heirs, after his death, have had due opportunity of putting forward the case on behalf of the allegedly delinquent Director. If either ~. Liquidator or the heirs of a deliquent Director, against whom a declaration of liability has been made, can question the--Oetermination of liability of the deceased delinquent, who was alive at the time of the Judgment against him, it is obvious that the Appellate Court could give a declaration either reducing or increasing the liability even though it may not be able to enforce it by an order under Section 235 of the Aot. If the declaration can be questioned by an appeal, as we think that it can, the liability can be not only wiped off or reduced but also increased on an appeal heard after the death of a Director held liable.\n\nApplying the principles laid down above to the case before us, we find that Tendolkar had a full opportunity of defending him sell against the misfeasance proceedings taken by the liquidator.\n\nHe also exercised his right of appeal against the order of the Company Judge. The Division Bench, as already observed, reduced his liability. His heirs were heard on merits in the appeal before us. Any order passed by us could only affect the assets or the estate of the deceased Tendolkar. But, as already indicated by us, we cannot, in these proceedings, pass an order against the heirs of Tendolkar so as to compel them 1to do anything. The Official Liquidator or the co-Directors may, however, take any other proceeding which may be open to them under the law so as to obtain the contribution of Tendolkar.\n\nBefore we consider the manner in which the liabilities of the Directors were determined, on the evidence on record, by the G •Company Judge and then by the Division Bench, we will refer\n\nto the principal authorities, cited before the High Court and also before us, with regard to the principles on which liabil!ties ?'-\n\nManaging Directors and other Directors may be determmed m such cases.\n\nH In Re: City Equitable Life Insurance Co.,(') which is regard as the locus classicus on the subject, was relied upon by\n\n(1) [1925] Ch. 407 at 427.\n\nboth sides. Here, Romer, J., after considering earlier authorities, said:\n\n\"In order, therefore, to ascertain the duties that a person appointed to the board of an e&tablished company undertakes to perform, it is necessary to consider not only the nature of the company's business, but also the manner in which the work of the company is in fact distributed between the Directors and the other officials of the Company, provided always that this distribution is a reasonable one in the circumstances, and is not inconsistent witb. any express provisions of the articles of association. In discharging the duties of. his position thus ascertained a Director must, of course, act honestly, but he must also exercise some degree of both skill and diligence. To the question of what is the particular degree of skill and diligence required of him, the authorities do not, I think, give any very clear answer. It has been laid down that so Jong as a Director acts honestly he cannot be made responsible in damages unless guilty of gross or culpable negligence in a business sense. But, as pointed out by Neville J. in Re.\n\nBrazilian Rubber Plantations and Estates Ltd., (1911) l Ch. 425), one cannot say whether a man has been guilty of negligence, gross or otherwise, unless one can determine what is the extent of the duty which he is alleged to have neglected. For myself, I confess to feeling some difficulty in understanding the difference between negligence and gross negligence, except in so far as the expressions are used for the purpose of. drawing a distinction bJ; otween the duty that is owed in ome case and the duty is owed in another ....\n\n\"There are, in addition, one or two other general proposi1tions that seem to be warranted by the reported cases : (I ) A director need not exhibit in the performance of his duties a greater degree of skill than may reasonabily be expected from a person of his knowledge and .experience. A director f)f a L>fe Insurance Company . for instance, does not guarantee that he has the ski11\n\nof an actuary or' of a physician. In the words of Lindley M.R.; 'If Directors act within their powers;. if they act with such care as is reasonably to be expected from them, having regard to their knowledge and experience, and if they act honestly for the benefit of the Company they represent, they discharge both their equitable as well as their legal duty to the Company' (Lagunas Nitrate Co. Vs.\n\nLagunas Syndicate- (1899)2 Ch. 392, 435). It is perhaps only another\n\nSUPREME BANK LTD. V. P.A. TENOOLKAR (Beg, J.) 385\n\nA way of stating the same proposition to say that Directors are not liable for more errors of judgment.\n\n(2) A Director is not bound to give continuous atten tion to the affairs of his Company. His duties are of an intermittent nature to be performed at periodical board meetings; and at meetings of any committee of the B board upon which he happens to be placed. He is not, however, l:iound to attend all such meetings, though he ought to attend whenever, in the circumstances, he is reasonably able to do so. ( 3) In respect of all duties that, having regard to the exigencies of business, and the articles of association, may properly be left to some c other official, a director is, in the absence of grounds for suspicion, justified in trusting that official to perform such duties honestly\".\n\nIt must, however, be remembered that these remarks were made in the context of a case in which the honestly of the conduct of the Directors had not been questioned at all.\n\nIn Dovey Vs. Cory,( 1) which was also cited, the question comidered by the House of Lords was whether a Director, though, in fact innocent of any complicity in fraud, was liable to the Company for negligence in not having discovered the fraud perpetrated by othi:rs. In that context, Lord }Ialsbury L.C. had oberved as follows :\n\n\"It is obvious if there is such a duty of detecting frauds it must render anything like an intelligent devolution of labour impossibfo ..... I cannot think it can be expected of a Director that he should be watching either the inferior officers of the bank or verifying the calculations of the auditor himself. The business of life could not go on if people could not trust those who are put into a position of trust for the express purpose of attending to details of management\".\n\nIn this very case, Lord Davey said :\n\n\"I think the respondent (Cory) was bound to give his attention to and exercise, his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so. But I think he was entitled to rely upon the judgment, information. and advice of the Chairman and general manager, as to whose integrity, skill, and competence he had no reason for suspicior..\".\n\nt1l _11901] A.C. 477.\n\nIn Re : Danham & Co.,(') a Director was held not liable for the fraud of his Co-Directors in issuing false and fraudulent reports and balance sheets. But, even in this case, it was found that the books of accounts of the Company had been properly kept and duly audited so that the Director concerned had no reason for suspecting fraud and was misled \"by reason of the extraordinary powers conferred by the Articles upon the Chairman\".\n\nIn Palmer's \"Company Law\" (21st Edn. 1968 p. 575), alter a citation of the three cases mentioned above, we find the comment:\n\n\"It is doubtful whether, if similar facts arose today, the court would decide in the same manner, because now a days the courts take a stricter view of the duties of a director than they took some twe1_1ty-five years ago\".\n\nIt is certainly a question of fact, to be determined upon the evidence in each case, whether a Director, alleged to be liable for misfeasance, had acted reasonably as well as honestly and with due diligence, so that he could not be held liable for conniving at fraud and misappropriation which takes place. A Director may be shown to be so placed and to have been so closely and so long associated personally with the management of the Company that he will be deemed to be not merely cognizant of but liable for fraud in the conduct of the business of a Company even though no specific act of dishonesty is proved against him personally. He .cannot shut his eyes to what must be oblvious to everyone who examines the affairs of the Company even superficially. If he does so be could be held liable for dereliction of duties undertaken by him and compelled to make good the losses incurred l:>Y the Company due to his neglect even if he is not shown to be guilty of participating in the commission of fraud. It is enough if his negligence is of such a character as to enable frauds to be committed\n\nand losses thereby incurred by the Company.\n\nIn the case before us, strong reliance has been placed, on be half of the Directors, on articles 109 and 118 of the Articles of Association which read as follows:\n\n\"Duties of the Managinl! Director.\n\n(I) (18831 25 Ch. Divn. 7l2.\n\nSUPREME BANK LTD. V. P, A. TENOOLKAR (Beg, J.) 387\n\nA 109 (a) The Managing Director, shall out of the money received by the Company make all necessary and proper disbursements, in carrying on the business of the Company, and shaU cause proper accounts to be kept of all transactions of the Company and shall once in every year, settle and adjust such accounts with the B Board and Auditors and shall make out the Balance- Sheet and Profit and loss account and all the returns, and statements required by the Acts, to be audited and signed.\n\nAppointment of Managing Director.\n\n(b) The Directors may from time to time appoint any one from their body to the Managing Director of the Company, either for a fixed perfod, or without any limitation as to the period for which he is to hold such office, on such terms, provisions, and conditions as to remuneration, management of the Company's business and affairs and removal, which may be mutually agreed upon between the Directors. and the Managing Director.\"\n\n\"Power to appoint Committee and to delegate.\n\n118. The Directors may delegate any of their E powers to committees consisting of such member or members of their body as they think fit. Any committee so formed shall, . in the exercise of the powers so delegated, conform to any regulations that may from time to time, be imposed upon it by the Directors\".\n\nF But, despite these articlei and the power of attorney executed in favour of the Managing Director, article 125 gave the Directors\n\natleast supervisory powers of management. The Managing Director S. K. Semant, who had tried to prove that it was the Board of Directors which really and actually conducted the affairs of the Company and that he was merely a tool, had relied on this article G which reads as follows :\n\n\"Powers of Directors.\n\n124. The Management oi the business of the Company shall be vested in the Directors, who in addition to the powers and authorities by these presents or otherwise expressly conferred upon them, may exercise all such powers and do all such acts, and, things as may be exercised or done by the Company and are not hereby or by statute expressly directed or required to be exercised or done by the Company in general meeting, but subject nevertheless to the provisions of the statutes, and of the presents, and to such regulations being not inconsistent with the aforesaid provisions as may from time ito time be made by the Company in General Meeting; Provided that no regulation so made shall invalidate any prior act of the Directors which would have been valid if such regulation had not been made\".\n\nUpon the facts examined by the learned Company Judge very fully and less fully by the Division Bench and the findings recorded thereon, it is clear to us that, although the Managing Director was conducting the day to day affairs of the Company and must, therefore, be held responsible for a greater share of losses incurred due to misappropriations, dishonesty, and misuse of managerial powers, yet, his Co-Directors could no~ possibly be ignoran~ of the nature of such dealings and activities of the employees and the Managing Director simply because they had executed a power of attorney in favour of the Managing Director. The Company Judge, relying upon observations in Overend & Gurney Co. v. Gibb,(') had held that :\n\n\"The Directors were cognizant of circumstances of such a character, so plain and so manifest, that. no men wi1th any ordinery degree of prudence, acting on their own half, would have conducted themselves in the manner the Directors of this Company have done\".\n\nThe proved conduct of the founder DirectOrs was such that an inference of their complicity in concealing the true state of affairs from depositors, presumably because they were themselves benefitting from jt, could not be avoided.\n\nThe learned Company Judge had rejected the plea of the Directors that they had acted both honestly and reasonably in the performance of their duties.\n\nThe learned Company Judge had observed : .\n\n\"It has been argued on beha1f of the Liquidator, and suggestions have also been made to the Directors when they were in the witness box, that they did not take immediate steps to remove dishonest members of the staff from service and to set right things because they were afraid of their own dishonest conduct heing exposed by the staff members if they persisted in taking action against them. Two circumstances relied upon in support of this argument are that in spite of promises\n\n(I) L.R. 5 H .. L 480.\n\nSUPREME BANK LTD. V. P.A. TENDOLKAR (Beg, J.) 389\n\nmade to the Reserve Bank, no reconciliation statements were got prepared for fear that any such reconciliation would bring to light false entries in account books.\n\nSecondly, it appears that one R. P. Joshi was appointed as Manager or Chief Officer but unceremoniously removed from service shortly after his appointment because with a view to set right matters he !ltarted taking steps which might have brought to light several irrigularities in the loan accounts of the Directors themselves.\n\nso' far as reconciliation is concerned. the position appears to have been that the discrepancy in bank accounts could not possibly be explained by cheques, bills or other instruments instransit. The discrepancy, as it turned out, was a result of malCTng false entries and making unauthorised advances out of the cash. The subsequent taking of loan documents was the only type of reconciliation that was possible.\n\nThat R. P. Joshi was removed from service shortly after his appointment is admitted. The reason given is that his behaviour towards the customers was found to be not quite good. But it has been established by evidence that the supervision of his conduct during the initial period of probation was entrusted to a committee of Directors of whom Tendolkar was one. Tendolkar denied that he was a member of that committee.\n\nBut Kalghatgi in his evidence stated that Tendolkar was one of them but declined to admit that he also was a member thereof. It has been possible for these Directors to give these answers because the record in the rough minutes books relating to the appointment of this Committee is not signed by any of the Directors. But I am satisfie4 on the evidence that there was such a committee. The disinclination on the part of these Directors to admit that they were members of the said committee leads to the conclusion that they do not wish directly to be associated with the decision to terminate R. P. Joshi's service, whiclr lands some supoort to the sugge!ltion on behalf of the Liquidator that the principal or operative reason for the said decision was that he started looking into loan account of the Directors and pointing out irregularities in them\".\n\nHe went on to observe :\n\n\"As I have already stated, the making of loans and advances to the Directors may not in itself be irregular or dishonest, provided that no difference is made in the matter of procedure and scrutiny between the loans to\n\nDirectors and loans to other persons. If (certain preferences or concessions are made in favour of the Directors including the omission to adopt proper procedure and .scrutiny, it is a legitimate criticism to make that the\n\nDirectors have taken undue advantage of their position as Directors which undoubtedly is a departure from the standard of care and rectitude expecte~ of them. As I have already oerved, if men at the top are guilty of departure from proper conduct, they place themselves in a position which makes it difficult, if not impossible, for them to correct their subordinates. There is. therefore. force in the argument that this particular si'tuation in which the Directors found themselves might be one of the reasons for not taking stern action against dishonest members of the staff. This circumstance is enough, in my opinion, to disentitle the Directors from saying that their only fault was honest error of judgment or that they :have acted reasonably in the circumstances of this case.\n\nI hold therefore that the Directors, other than the Managing Director, are also liable for the loss because they must be held to have failed in their duty of providing for good and efficient managment oi affairs of the Company and because they cannot in the circumstances claim that they were entitled to rely upon either the Managing Director or any members of the supervisory staff\".\n\nThe learned Company Judge as well as the Division Bench had referred to the difficulties encountered in determining the actual total loss to the Company because of want of any reliable statement of account. This state of the records of the Bank was itself evidence of breach oi their duties by the Managing Director and the Board of Directors to see that the business of the Bank was honestly and efficiently conducted.\n\nThe learned Company Judge, after considering all the items of proved loss to the Company and making appropriate deductions for assets which could be considered even of doubtful value, had found that. at least a loss of Rs. 2,50,000 was caused by the mismanagement of the Managing Director and the Co-Directors. The 1ea, rned Company Judge had ordered the Managing Director as well as the Directors Tendolkar and Ajgaonkar and Porwal and Kalghatgi to contribute jointly and severally a sum of Rs. 2,50,000 with interest at 6 per cent per annum from the date of his order on 8-11-1963 until payment, to the assets of the Company, but the learned Judge limited the liabilities of Porwal and Kalghatgi to Rs. 15,000 each, provided they paid this sum within three months of his order.\n\nSUPREME BANK LTD, V, P.A. TENDOLKAR (Beg, J.)\n\n3!H\n\nThe Division Bench found the estimate of the Company Judge about the total loss due to mismanagement to be not only reasonable, but record findings. showmg that loss incurred under the two heads of loss for the whole period was. more. Speaking about the loss shown bty , proved shortage of cash and manipulation c:J. balances with the other banks and the extent of the liability of the Managing Director for these it said :\n\n\"Though the total loss to the Bank under the aforesaid two heads (shortage of cash and manipulation of balances with other Banks) may be estimated at Rs.\n\n2,65,000, he is liable for only that portion of the said loss which occurred after he became the Managing Director in July,\n\n1946. Unfortunately, neither the Official Liquidator nor the witnesses focussed their attention to apportionment of the loss between the period prior to July 1946 and the period subsequent to July\n\nI 946\".\n\nIt rejected the plea of the Managing Director that he had executed promisory notes in favour of the Bank for Rs. 53,000 and Rs. 58,500, on 19-11-1954, and 3-12-1954 respectively, under flOJllC pressure, threat, or coercion. It relied upon a statement in writing of the Managing Director (A. 25) addressed to the Special Officer on 8-12-1954 in which the amounts of the two pronotes totalling upto Rs. 1,11,500 to the Bank constituted an admission and undertaking to repay atlea5t this amount to the Bank. It observed that even on 8-12-1954 the Managing Director did not deny his liability to pay this amount. It then held :\n\n\"Hence, this can safely be taken as his liability for his negligence and breach of duty. Rs. 14,000 has been realised from him by the sale of his car and truck and another sum ol Rs. 24,000 has been realised by the sale deed executed by him in favour of the Bank conveying his house. Deducting these two sums, he is still liable for a sum of Rs. 73,500. Thus, his liability to contribute to the assets of the Company can safely be fixed at Rs. 73,500 though it is likely that the extent of Joss resulting from his neglige11ce and breach of duty as Managing Director, is much larger. He is also liable to pay interest on this sum of Rs. 73,500 at 6 per cent per annum from the order ol the learned Company Judge till payment\".\n\nThe Division Bench, after holding that the Managing Director S. K. Samant was liable to contribute atleast Rs. 73,500 more with interest, actually reduced the liability of S. K. Samant individually to Rs. 58,500 and of Directors Tendolkar and Ajgaonker\n\njointly and severally to Rs. 50,000 only. After that, it added that, .out of the sum of Rs. 5 8,500 payable initially by S. K. Samant,\n\nth~ liabilities of the Co-Direct.ors Tendolkar and Ajgaonkar would be joint and several with the Managing Director S. K. Samant to the extent of Rs. 50,000 only. This meant that the joint and several liabilities of Ajgaonkar with the Managing Director S. K. Sama.nt would only come into play if S. K. Samant failed to discharge his\n\nown liability to the extent of Rs. 58,500. The result of the orders .of the Division Bench was that the amount to be repaid to the\n\nBank by the Managing Director and the four Directors totall~, d up to Rs. 1,23,500. This total liability was determined after deducting Rs. 24,000 already realised from the sale of the house and\n\nRs. 14,000 from the sale of a car and truck of S. K, Samant.\n\nC It was contended before us that the Division Bench had erred in reducing the total liability of the Board of Directors from Rs. 2,50,000 to Rs. 1,61,500 (i.e. Rs. 1,23,500 plus Rs. 38,000) on a rather arbitrary view that this is all that could be definitely proved to be the total loss to the Company due to the misfeasance -Of the Board, as a whole, after all .the Directors had had clear and definite notice of the irregularities commit1ted in the management .of the Bank from the Reserve Bank's first report, although the .Division Bench had itself held that the total loss covered by the\n\ntwo heads of 'shortage of cash' and 'manipulation of balances with -other banks' over the whole period of management by the Board was Rs. 2,65,000. The Division Bench confined the liabilities of the whole Board of Directors, apart from those of the Managing Director individually, to only Rs. 65,000 \"proved to have taken place subsequent to March 1951, when they became aware of Ex.\n\nA 1 ithe first report of the Reserve Bank\".\n\nThe learned Company Judge had separately considered the cases of Porwal, who joined as Director in 1951 after the first Inspection Report by the Reserve Baitlc had already been given, F and of R. N. Kalghatgi, who became a Director only in July 1953, -0n the death of his elder brother G. N. Kalghatgi. They had pleaded that they were ignorant of the mal-practices and misappropriations which had taken place before they joined the Board of Directors. The Company Judge had noted that no suggestion <>f dishonest conduct had bee.n made against them and .that they a had not borrowed any money from the Company. Nevertheless, as\n\nthey were fixvc! with the knowledge of the contents of the several reporta of the Reserve Bank, meDtionecl above. they were held liable to-contribute Rs. 15,000 each, as mentioned above, or their negligence .ind breach of duty to provide and ensure honest -and efficient management of the affairs <Ji the Bank. The Division .:L\n\nBench had, in view of the short period for which they .had tune- H ~·.·.· . . tioned on the delinquent Board of Directors, reduced the eontrl- tolle made by R. W. Porwal and H. N. Kalghatgi .to\n\nSUPREME BANK LTD •. v. P.A. TENOOLKAR (Beg, J.) 393\n\nA Rs. 10,000 and Rs. 5,000 respectively with interest at 6 per cent\n\nper annum from 8-11-1963, the date of the order of the Company Judge, until the date of payment. Having regard to the mitigating circwnstances, and, particularly, the shortness of the period for which these two Directors served on the delinquent Board of Directors, with the nature of activities of which they could not B possibly have been ignorant after the reports of the Reserve Bank, we consider the orders of the Division Bench reducing the liabilities of these two Directors to be just and reasonable. It may also be mentioned here that Porwal and Kalghatgi appear to have accepted the justice oi. assessment of their liabilities as they had not appeal_ed against the order of the Division Bench so that no c question of any further reduction of their liabilities arise before us.\n\nWhile we think that the Division Bench was justified itli placing a larger share of the burden of contribution on the Managing Director, upon the facts and circumstances of this case, it had manifestly erred in passing an order which not only reduced the total liability of the Directors, but had, without giving any good reason for it, reduced the individual remaining liaty of S. K.\n\nSamant to Rs. 58,500 only. It had iteslf held, that, even according to the admission of the Managing Director, he was liable to the extent of Rs. 1,11,500 and that, as this was a fair measure of the 'extent of the loss caused by the Managing Director, the amount still payable by him was Rs. 73,500 (i.e. after deducting Rs. 38,000 for the amounts already realised from Samant).\n\nWe may here indicate the nature of the evidence, discussed at length by the learned Company Judge, on which findings relating to mismanagement by the Board of Directors were based. Shri A. L. Bhatia (P.W. 1), Banking Officer of the Reserve Bank of F India, had . duly proved facts disclosed in the reports, dated 7-3-1951(Al), dated 5-3-1953 (A2), dated 13-9-1954 (A3), and dated 13-1-1955 (A4), which were made after carrying out inspections of the records disclosing the manner in which the business of the .Bank was conducted. He had been fully crossexamined on the contents of the reports. Shri B. D. Joshi, G Chartered Accountant (PW. 2), who stated that he had been appointed to examine and audit the accounts of the Company by the Board of Directors, at the instance of the CID, for the period from 1948 onwards, had proved the contents of his report (A9) dated 10-5-1957. He was also thoroughly cross-examined on behalf of the Directors. Shri K. Y. Wagle (PW. 3), Auditor, was H examined biy the Official Liquidator to prove and support the contents of his report (A. 21) dated 16-2-1955. Shri v. R. Kotbaqi, Advocate (PW. 4) who, as indicated above, had been appointed as the Special Officer, under Section 37 of the Act, and who functioned from 7-12-1954 to 4-4-1955 in that capacity, had duly proved and was fully cross-examined about the admissions made in writing (Ex. A. 25) by S. K. Samant. No objection had been taken on behalf of the Directors to the admissibility of any of the reports or other documents exhibited on behalf of the Official Liquidator.\n\nIn addition to the considerable evidence given by the witnesses mentioned ablove, the learned Company Judge, in order to give the fullest possible opportunity to , the Directors to meet the prima-facia case of misfeasance, by misconducting the affairs of the Bank in a manner which could not be honest and which caused heavy losses to the Bank, had ordered the Directors, who had produced no witness in defence, to appear and give evidence in court, particularly because the defence of the Directors seemed to the learned Judge to be proceeding on the wrong assumption that the whole burden of proof rested upon the liquidator. The learned Judge, in this connection, referred to the provisions of SeCllion 45H of the Act which laid down :\n\n\"45H. Special provisions for assessing damages against delinquent directors, etc.- (1 ) Where an application is made to the High Court under Section 235 of the Indian Companies Act, 1913 (7 cf 1913), against any promoter, director, manager, liquidator or officer of a banking company {or repayment or restoration of any money or property and the applicant makes out a prima facie case against such person to repay and restore the money or property uniless he proves that he is not liable to make ithe repayment or restoration either wholly or in part : Provided that where such an order is made jointly against two or more such persons, they shall be jointly and severally liable to make the repayment or restoration of the moiley or property.\n\n(2) Where an application is made to the High Court under Section 235 of the Indian Companies Act, 1913 (7 of 1913), and the High Court has re11Son to believe that a property belongs ID any promotor, Director, Manager, liquidator or officer of the banking Company, person as an ostensible owner, then the High Court may, at any time. whether the property stands in the name of such person, or any other whether before or after making an order under sub-section ( 1) direct the attachment of such property, or such portion thereof, as it thinks fit and the property so artached shall remain subject to attachment unless the ostensible owner can prove to the satisfaction ol. the High Court that he is the\n\nSUPREME BANK LTD. v. P.A. TENOOLKAR (Beg,/.) 395\n\n.real owner and the provisions of the Code of Civil Procedure, 1908 (Act 5 of 1908), relatin~ to attaclunent of property shall, as far \"as may be, apply to such attachment\".\n\nThe Directors, apparently unwilling to appear in evidence, had B questioned the power of the learned Company Judge to order them to appear and give evidence in open Court. Their appeal ag_ainst the order for the examination of the Directors had been dismissed.\n\nThere was no further appeal against that order which became binding on \"the parties. The Division Bench, however, to support its view that the Directors other than the Managing Director could C not be made liable before the Reserve Bank report came to their knowledge in March 1951, observed that a good deal of evidence, which may have been available if the official Liquidator had asked for the public examination of the Directors under Section 45G of the Act, could not be placed before the Court. The Division Bench had also held that the allegations of improper conduct by the Directors, in not exercising proper supervision, D did not form the subject matter of any separll'le issue or poinr formulated by the Company Judge.\n\nFurthe_rmore, the Division Bench held that allegations of improper conduct on the part of Directors, in obtaining excessive loans for themselves, which the Directors were not called upon to meet, should be ianored in determining the liability of the Directors for makin111 good loss due E to shortage of cash and manipulation of bank balances. It had, nevertheless, held the Directors liable inasmuch as they could not\n\n\"totally abdicate their powers and .functions and divest themselves of responsibility for proper management of the Company\". The Division Bench had also commented upon the vagueness of alle-\n\nF gations against the Directors individually.\n\nWe find, as the judgment ol the learned Company Judge also shows, that each allegation in the misfeasance application was supported by sufficient particulars and evidence. In paragraph 12 of the application, it was stated that, although the books of the Bank showed a cash balance of Rs. 1.50,4 71-15-7, yet, the actual cash found on 26-11-1954 when the Bank closed business was G Rs. 645.04. In addition, there was a cash deficit of Rs. 8773-15-8 revealed in the earlier report, so that the total dellcit of cash was Rs. 1,58,600-14-11. In paragraph 13, the unexplained difference between the accounts at the Branches, with particulars given, was\n\nshown to be Rs. 1,44,500. In paragraph 14, details of unreconciled dift'erences in accounts with other Banks, referred to in the H Reserve Bank report of 13-9-1954, were given. Paragraph 15 Jiave the details of allotment ol new shares to the Directors and their friends without payment of any cash whatsoever for these shares, in 1946, although fictitious entries were made to shov; payment.• 10,-L7%Sup. Cl/73\n\nbty the Chairman by G. N. Kalghatgi, and by L. S. Ajgaonkar. It was stated here that the Directors were fully aware of the fictitious nature of these entries. To explain them away, debits were made to a suspense account for the purpose of preparing the balance sheet ending on 31-12-1947. It was not only alleged but shown that the Directors were debarred by Article 14 7 of the Articles of Association from transferring unclaimed dividends to any funds or other accounts before the expiry of a year and that this had been done to cover up the fictitious entries.\n\nIt was asserted there that the Auditor's repot had also concealed the true facts and that this was a deliberately fraudulent conduct. Paragraph 17 of the application gave a list of amounts shown to have been withdrawn by the Directors and their friends within a week before the closing of its business by the Bank. In earlier paragraphs of the petition, details of reports of Shri K. Y. Wagle, dated 16-2-1955, and of B. D. Joshi, given on 10-5-1957, and the explanations given bty\n\nthe Directors, were mentioned. The ports of the Reserve Bank of India were also mentioned in the application.\n\nThe Official Liquidator could not possibly have done anything more in his application than to rely on reports available to him and to prove the correctness of 'their contents by producing, as witnesses, those individuals who had conducted the investigations and made the reports. He was not personally aware of the affairs of the Bank before he was appointed to wind up the Company. We think that, in the circumstances of the case, sufficient particulars had been furnished in the misfeasance application. The Directors not only had an opportunity of meeting the allegations contained in the petition, but they also had knowledge of the material brought on record afterwards.\n\nIt is true that there was no separate issue on the extent of the liability of the Managing Director and the Directors due to neglect in exercising proper control and supervision over officers of the Bank. But, we think that the gravemen of the charges against the Directors was more serious than that. The learned Company Judge' had framed three issues apart from two on the preliminary questions. disposed of by us already. These three issues were framed as follows :\n\n\"1. Whether the Official Liquidator proves that on the date the Company closed its business, viz., on 27-11-1954 there was shortage in cash and if so, in what sum?\n\n2. Whether the Liquidator proves that loss was occasioned to the Company by misapplication of cash or funds shown to have been credited to the accounts of the Company with the other Banks but not so actnally credited? _,\n\nSUPREME BANK LTD. V. P.A. TENDOLKAR (Beg,/.) 397\n\n3. Whether and if so, which of the respondents is or are liable to make good the shortage in cash and loss occasioned to the Company; if found liable, are the respondents so liable jointly and severally and if severally, to what extent in the case of each of them ?\".\n\nThe third issue involved determination of liabilities under the various heads on which evidence was led by both sides.. The observations of the learned Company Judge about the failure of the Board of Directors to exercise proper control over the activities of the employees and the effect of setting bad examples before the employees were made as an answer to the attempts made by the Directors themselves to shift responsibility for the losses incurred, due to dishonest dealings which were not questioned, upon the shoulders of the employees of the Bank. The want of proper supervision was not, as is clear~ from the issues, a separate or easily separable head of liability. No separate liability for it was determined. The two heads of liability, covered by the 'first two issues, were wide enough to cover the. various causes of shortage and misapplication of funds and modes of falsification of accounts and other documents to conceal the true state of affairs left for elucidation by evidence. The remainder was, apparently, meant to be covered by the third issue.\n\nWe may point out that the report-cum-application made by the Official Liquidator for proceedings against the delinquent Directors did record the Liquidator's opinion that loss had been caused to the Company, since its formation, by the acts and omission of the Directors, so '!hat the High Court could order the production of the Directors for such examination as the High Court considered fit and proper. The High Court did make, an order for their examination in Court. The Directors had not only had an opportunity of showing cause why they should not be so examined but had questior.ed the order for their examination by an appeal which failed. It is immaterial that the particular examination of the Directors. was not described in the orders made as \"public examination\" within the meaning of Section 45 G of the Act.\n\nWe think that the Division Bench had erred inasmuch as it pro- G ceeded on the assumption that the Liquidator has to make a specific or separate application for publlic examination of Directors.\n\nAll that Section 45G oi the Act requires is the submission of a repott showing that loss has been caused to the Banking Company in the opinion of the Official Liquidator. After that, it is the opinion of the Court, on the question whether the Director con- H cerned should be publicly examined, that matters. In the case before us, the Company Judge was certainly .of opinion that the interests of justice required the examination of the Directors which had beenordered. We think that the Division Bench had erred inl\n\nholding that the Directors had not had due opportunity of meeting allegations made against them.\n\nIt is true that rthe issues were rather broadly framed and could have been fuller. But, after considering the nature of charges and their particulars, the cases set up by the Directors in defence, the evidence led, and the very full and fair opportunities given by rthe learned Company Judges to the Directors to defend themselves, we are unable to agree with the Division Bench that the Directors were in any way handicapped by alleged vaguness of charges or a failure to frame issues more only or that a good deal of evidence\n\nled could be ignored for these reasons. It was pointed out bjy this Court, in Negubai Ammal & Ors. v. B. Shama Rao & Ors.,(') with regard to the rule that evidence should not be looked into at' C all on matters neither pleaded nor put in issue :\n\n\"The true scope of this rule is that evidence let in on issues on which the parties actually went to. trial should not made the foundation for decision of another and different issue, which was not present to the minds ot the parties and on which they had no opportunity of adducing evidenr.e. But, that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto.\"\n\nWe / think that the learned Compiµiy Judge was right in coming •io the conclusion, on the evidence on record, that the promoter or founder Directors who were there since the inception of the Bank, were cognizant of the nature of the dealings by the Managing Director and the officers of the Hank.\n\nThe evidence showed that they had been discussing matters relating to the management of the Company at the meetings of the Board where\n\nitems of \"policy\", which benefited th~ Directors at the expense of the deposirs. must have been discussed. They could not have been ignorant of the fact that the Account Books contained fictitious entries showing payments for shares by them when they had not actually paid for them. Nor could they bc so innocent as not to know of the window dressing and presentation of false balance sheets so as to conceal the true state of affairs from the depositors for years.\n\nConsider; tble importance was attached, Ori behalf of the Directors, to the following statement in the Inspection report (Ex. A3) dated 27-8-1954 under Section 35(1) of the Act; '\"Ibei cash in hand at the Head office was verified on 17th May 1954, and it was foulld that it was shon to the extent of Rs. 53-15-9\".\n\nApparently, this statement was made on the strength of entries\n\n(I) [19S6) S.C.ll. 451 at 461.\n\nSUPREME BANK LTD, V. P.A. TENDOLKAR (Beg, J.) 399\n\nA. in the account which were not really reliable. If the statement could be correct, it would only mean that practically whole of the total deficit in cash at the bank shown as R.s. 1,73,000 in the report of Shri Wagle (Ex. A.21) dated 26-11-1954 represented misappropriation which took place between May and November,\n\n1954. The report of Shri Wagle (Ex. A.21) also showed that B when the Auditor's clerk counted the cash on 24-3-1954, it was Rs. 15,712-13-2 whereas the Day Book written threaiter showed a closing balance of Rs. 3,07,555-2-10. It appears that cooking up of accountS and presentation of false lance sheets were the usual practice of the Bank. c Any Director conscious of his 11\\anaglerial responsibilities, who had cared to examine the affairs of the Bank, could not have failed to find out whm was really happening in the Bank. The fact that these practices were tolerated for such a long period without any check by the Board of Directors indicates that the promoter Directors must be participants in th.e benefits of wide- D spread misappropriation even though they may have so operated as not to leave any traces of actual misappropriation by them in the records of the Bank. The circumstancial evidence against them is too damaging, considerable, and unanswered.\n\nThe result is that we think that the learned Company Judge was correct iri assessing the total liability of those members of the Board of Directors who were founder or promoter Directors. We also think that the Division Bench correctly came to the conclusion that it was jllllt and proper to place a greater share of liability upon the Managing Director. We, however, think that the Division Bench erred in reducing the liability of the Managing Director and the Directors as a whole. We think that the remaining liability of the Managing Director to pay Rs. 73,500 with interest at six per cent per annum from the date of the order of the Company Judge until payment is a correct measure of the initial separate liability of the Managing Director S. K. Samant\n\nas held by the Division Bench.\n\nBut in case this amount cannot be realised from S. K. Samant in the fit instance, the remainder should become ihe joint and several liability of the remaining two Direct!5rs before. the Company Judge, namely, P. A. Tendolkar and L. S. Ajgaonkar.\n\nAs we concur with the assessment of the total liability of the delinquent Board of Directors at Rs. 2,50,000 by 'the learned B Company Jndge, with which the Division Bench had not differed, we thii1k that this should be the total amount which the Direcfors who Were alive when the Company Judge passed his order ar~ liallle to contribute to the assets of the Company, '\n\nThe result is that we allow the tliree appeals of the Liquidator bearing Civil Appeal Nos. 195-197 oi. 1967 and set aside the orders of the Division Bench determining the liabilities of S. K.\n\nSamant and P.A. Tendolkar and L. S. Ajgaonkar. We substitute :he following determination of their respective liabilities and directions :\n\n(I) The total remaining liabilities of the Managing Director S. K. Samant and Directors P. A. Tendolkar and L. S. Ajgaonkar, R. K. Porwal and R. N. Kalghatgi are held to be Rs. 2,50,000 minus Rs. 38,000: which has already been realised by the sale _of a house and a truck and car of S. K. Samant that is to say Rs. 2, 12,000.\n\n(2) We hold that as, out of this remaining sum of Rs. 2,12,000 the liabilities of Porwal and Kalghatgi have. been correctly determined and restricted to Rs. 10,000 and Rs. 5,000 respectively, and discharged, these amounts will be deducted from the amount to be contribll'ted by the remaining three Directors S.\n\nSamant, P. A.\n\nTendolkar, and Ajgaonkar, and no further contribution will be demanded from Porwal and Kalkhatgi who have already paid these amounts. Thus, the remaining further liability of S. K. Samant and\n\nP. A.\n\nTendolkar and Ajgaonkar is red11ced to Rs. 1,97,000 .. ( 3) Out of this remaining liability Of Rs. 1,97 ,000 the .initially separate Jiabiility of Managing Director S. K. Samant is Rs. 73,500 toge!her ll(ith interest at six per cent per 'annum from the date of the order of the learned Company Judge until payment. ( 4) The still remaining liability to the extent of Rs. 1,23,500 with interest at six per cent per annum from the date of the order of the Company Judge, upto the date of payment will be the joint and several liability of the Man.aging Director S. K. Samant and the Directors Tendolkar and Ajgaonkar.\n\n(5) The Directors Tendolkar and Ajgaonkar are held jointly and severally liable in case the amount, if any, which, out of the initially separate liability of the Managing Director S. K. Samant, that is to say J!ls. 73,500, cannot be recoved from S. K. Samailt only. ( 6) The case is fC'Dl•nded to the learned Company . Jiidge for pa.lling such orders againat the Managing\n\nDirector Samant and Director Ajgaonkar, under\n\nSUPREME BANK LTD. V. P.A. TENOOLKAR (Beg, J.)\n\n40 I\n\nSection 235 of the Act of 1913, as may be needed for discharging the Ha_!>ilities determined above, but no. such orders will be passed against the heirs and legal representatives of deceased Director P. A. Tendolkar under Section 235 of the Act of 1913, although their liabilities are declared. The Official Liquidator and L. S. Ajgaonkar are, however, left free to seek such other remedies, if necessary, by appropriate proceedings under the law, against the estate or assets of P. A. Tendolkar, as may be open to them.\n\nThe separate appeal (Civil Appeal) No. 300 of 1967 by L. S. Ajgaonkar is hereby dismissed.\n\nThe separate appeal (Civil Appeal) No. 234 of 1967 oJf.\n\nP. A. Tendolkar, now represented by his heirs, is all0wed only to the extent that the order passed under Section 235 of the Act of 1913 for compelling P .. A. Tendolkar to contnoute his share is withdrawn 'as it has become infructuous and 'it is dismissed as regards the rest of the claim. ·\n\nCosts of the appeals in this Court shall be payable by all the Respondents with the exception of the legal representatives of P. A. Tendolkar. There will be no order as to costs in Civil Appeal No. 234 of 1967. One set of hearing fee.\n\nV.P.S.", "total_entities": 268, "entities": [{"text": "orFICIAL LIQUIDATOR, SUPREME BANK LTD", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "OFFICIAL LIQUIDATOR, SUPREME BANK LTD", "offset_not_found": false}}, {"text": "P.A. TENDOLKAR (DEAD) BY L. RS. AND ORS", "label": "RESPONDENT", "start_char": 43, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "P. A: TENDOLKAR (DEAD) BY LRs. AND ORS", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 105, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 119, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "s. 235", "label": "PROVISION", "start_char": 185, "end_char": 191, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 196, "end_char": 209, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 543", "label": "PROVISION", "start_char": 223, "end_char": 229, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act", "label": "STATUTE", "start_char": 433, "end_char": 454, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 45(G) and 45(0)", "label": "PROVISION", "start_char": 469, "end_char": 488, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45(G)", "label": "PROVISION", "start_char": 583, "end_char": 591, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 595, "end_char": 600, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "S. 45", "label": "PROVISION", "start_char": 679, "end_char": 684, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 708, "end_char": 714, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45H", "label": "PROVISION", "start_char": 1141, "end_char": 1147, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 1155, "end_char": 1182, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 235", "label": "PROVISION", "start_char": 1188, "end_char": 1194, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1949", "statute": "the Banking Companies Act, 1949"}}, {"text": "Companies Act, 1913", "label": "STATUTE", "start_char": 1211, "end_char": 1230, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 1239, "end_char": 1244, "source": "regex", "metadata": {"linked_statute_text": "Companies Act, 1913", "statute": "Companies Act, 1913"}}, {"text": "Rescrvq Bank", "label": "ORG", "start_char": 1661, "end_char": 1673, "source": "ner", "metadata": {"in_sentence": "The official Jiquidator relied upon several reports made by the Rescrvq Bank and by others under orders of the High Court."}}, {"text": "s. 450", "label": "PROVISION", "start_char": 2266, "end_char": 2272, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 3371, "end_char": 3379, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 235", "label": "PROVISION", "start_char": 3608, "end_char": 3614, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 3784, "end_char": 3789, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 3807, "end_char": 3820, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 3910, "end_char": 3915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45(0)(2)", "label": "PROVISION", "start_char": 4646, "end_char": 4657, "source": "regex", "metadata": {"statute": null}}, {"text": "Feltem", "label": "OTHER_PERSON", "start_char": 6043, "end_char": 6049, "source": "ner", "metadata": {"in_sentence": "East of England Bmzk-Feltem's Executors case, [1865] 1 Equi>ry Cc..ses 219."}}, {"text": "s. 235", "label": "PROVISION", "start_char": 6722, "end_char": 6728, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act 1913", "label": "STATUTE", "start_char": 6736, "end_char": 6754, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 543", "label": "PROVISION", "start_char": 6772, "end_char": 6778, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act 1913", "statute": "the Companies Act 1913"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 6786, "end_char": 6799, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 235", "label": "PROVISION", "start_char": 8059, "end_char": 8065, "source": "regex", "metadata": {"statute": null}}, {"text": "L.S. Rarrumwnny Iyer", "label": "OTHER_PERSON", "start_char": 10158, "end_char": 10178, "source": "ner", "metadata": {"in_sentence": "154, L.S. Rarrumwnny Iyer ,.,"}}, {"text": "Directora", "label": "OTHER_PERSON", "start_char": 11831, "end_char": 11840, "source": "ner", "metadata": {"in_sentence": "the promoter or founder Directora who were there since the inception of the Bank, were cognizant of the nature of the dealings by the Managing Direcror and the officers of the Bank."}}, {"text": "s. 450", "label": "PROVISION", "start_char": 14985, "end_char": 14991, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 15007, "end_char": 15020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45G", "label": "PROVISION", "start_char": 15305, "end_char": 15311, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 235", "label": "PROVISION", "start_char": 16810, "end_char": 16816, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramshwar .Nath", "label": "LAWYER", "start_char": 17381, "end_char": 17395, "source": "ner", "metadata": {"in_sentence": "S.· C, Sundraswamy, Ramshwar .Nath and K.Suryanarayana II Rao, for the appellants (in C, As."}}, {"text": "K.Suryanarayana II Rao", "label": "LAWYER", "start_char": 17400, "end_char": 17422, "source": "ner", "metadata": {"in_sentence": "S.· C, Sundraswamy, Ramshwar .Nath and K.Suryanarayana II Rao, for the appellants (in C, As."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 17598, "end_char": 17612, "source": "ner", "metadata": {"in_sentence": "v. P.A. TENDOLKAR (Beg, J.) 369\n\nC. K. Daphtary, S. K. Mehta, K. R. Nagaraja and Qamuruddin, for appellant (in C.A. No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 17614, "end_char": 17625, "source": "ner", "metadata": {"in_sentence": "v. P.A. TENDOLKAR (Beg, J.) 369\n\nC. K. Daphtary, S. K. Mehta, K. R. Nagaraja and Qamuruddin, for appellant (in C.A. No.", "canonical_name": "S. K. Samanth"}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 17627, "end_char": 17641, "source": "ner", "metadata": {"in_sentence": "v. P.A. TENDOLKAR (Beg, J.) 369\n\nC. K. Daphtary, S. K. Mehta, K. R. Nagaraja and Qamuruddin, for appellant (in C.A. No."}}, {"text": "Qamuruddin", "label": "OTHER_PERSON", "start_char": 17646, "end_char": 17656, "source": "ner", "metadata": {"in_sentence": "v. P.A. TENDOLKAR (Beg, J.) 369\n\nC. K. Daphtary, S. K. Mehta, K. R. Nagaraja and Qamuruddin, for appellant (in C.A. No."}}, {"text": "V. S. Desai", "label": "RESPONDENT", "start_char": 17727, "end_char": 17738, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and P. C. Bhartari, respondent No."}}, {"text": "P. C. Bhartari", "label": "RESPONDENT", "start_char": 17743, "end_char": 17757, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and P. C. Bhartari, respondent No."}}, {"text": "B R. B. Datar", "label": "LAWYER", "start_char": 17844, "end_char": 17857, "source": "ner", "metadata": {"in_sentence": "B R. B. Datar, for respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 17926, "end_char": 17929, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.-These are five appeals by grant of certificates under Article 133(l)(a) of the Constitution by the Mysore High Court where the orders of the leamed Company Judge, in misfeasance c proceedings, under Section 45H of .the Banking Companies Act, 1949, (hereinafter referred to as 1the Act'), read with Section 235 of the Indian Companies Act, 1913, (hereinafter referred to as the Act of 1913') had been modified by a Division Bench."}}, {"text": "Article 133(l)(a)", "label": "PROVISION", "start_char": 17988, "end_char": 18005, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 18033, "end_char": 18050, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.-These are five appeals by grant of certificates under Article 133(l)(a) of the Constitution by the Mysore High Court where the orders of the leamed Company Judge, in misfeasance c proceedings, under Section 45H of .the Banking Companies Act, 1949, (hereinafter referred to as 1the Act'), read with Section 235 of the Indian Companies Act, 1913, (hereinafter referred to as the Act of 1913') had been modified by a Division Bench."}}, {"text": "Section 45H", "label": "PROVISION", "start_char": 18133, "end_char": 18144, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 18153, "end_char": 18180, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 235", "label": "PROVISION", "start_char": 18232, "end_char": 18243, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1949", "statute": "the Banking Companies Act, 1949"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 18251, "end_char": 18277, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Bank of India Ltd., Balgaum", "label": "ORG", "start_char": 18629, "end_char": 18664, "source": "ner", "metadata": {"in_sentence": "These proceedings were instituted bi)- >the Official Liquidator againilt seven Directors, including the Chairman of the Board of Directors and D\n\nthe Managing Director, and the Cashiers, the Accountant, too Branch Managers, another officer, and an auditor of the Supreme Bank of India Ltd., Balgaum, (hereinafter referred to as 'the Bank') under liquidation."}}, {"text": "27-5-1939", "label": "DATE", "start_char": 18751, "end_char": 18760, "source": "ner", "metadata": {"in_sentence": "The Bank, incorporated on 27-5-1939, commenced business on 6th October, 1939."}}, {"text": "6th October, 1939", "label": "DATE", "start_char": 18784, "end_char": 18801, "source": "ner", "metadata": {"in_sentence": "The Bank, incorporated on 27-5-1939, commenced business on 6th October, 1939."}}, {"text": "27-11-1954", "label": "DATE", "start_char": 18828, "end_char": 18838, "source": "ner", "metadata": {"in_sentence": "It suspended business on 27-11-1954 as a result of gross mis-management which enabled large sums of money to be misappropriated and false and fictitious ell'lries to be made in its account books."}}, {"text": "S. G. Pant", "label": "OTHER_PERSON", "start_char": 19058, "end_char": 19068, "source": "ner", "metadata": {"in_sentence": "Out of the seven Directors mentioned above, five, namely, S. G. Pant, 'the Chairman of the Board of Directors, S. K. Sawant, the M?naging Director from July, 1946."}}, {"text": "S. K. Sawant", "label": "LAWYER", "start_char": 19111, "end_char": 19123, "source": "ner", "metadata": {"in_sentence": "Out of the seven Directors mentioned above, five, namely, S. G. Pant, 'the Chairman of the Board of Directors, S. K. Sawant, the M?naging Director from July, 1946.", "canonical_name": "S. K. Samanth"}}, {"text": "P. A. Tendo[kar", "label": "JUDGE", "start_char": 19164, "end_char": 19179, "source": "ner", "metadata": {"in_sentence": "P. A. Tendo[kar, D. R.\n\nAngolkar, and L. S. Ajgaonkar, were promoter or founder Directors.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "D. R.\n\nAngolkar", "label": "OTHER_PERSON", "start_char": 19181, "end_char": 19196, "source": "ner", "metadata": {"in_sentence": "P. A. Tendo[kar, D. R.\n\nAngolkar, and L. S. Ajgaonkar, were promoter or founder Directors.", "canonical_name": "D. R.\n\nAngolkar"}}, {"text": "L. S. Ajgaonkar", "label": "OTHER_PERSON", "start_char": 19202, "end_char": 19217, "source": "ner", "metadata": {"in_sentence": "P. A. Tendo[kar, D. R.\n\nAngolkar, and L. S. Ajgaonkar, were promoter or founder Directors."}}, {"text": "R. W. Forwal", "label": "OTHER_PERSON", "start_char": 19275, "end_char": 19287, "source": "ner", "metadata": {"in_sentence": "The sixth Director, R. W. Forwal, joined the Board in 1961.", "canonical_name": "R. W. Forwal"}}, {"text": "R. N. Kalghatgi", "label": "OTHER_PERSON", "start_char": 19338, "end_char": 19353, "source": "ner", "metadata": {"in_sentence": "The seventh Director, R. N. Kalghatgi, took charge of his office in July, 1953, on the death of his elder brother G. N. Kalghatgi.", "canonical_name": "R. N. Kalghatgi"}}, {"text": "G. N. Kalghatgi", "label": "OTHER_PERSON", "start_char": 19430, "end_char": 19445, "source": "ner", "metadata": {"in_sentence": "The seventh Director, R. N. Kalghatgi, took charge of his office in July, 1953, on the death of his elder brother G. N. Kalghatgi.", "canonical_name": "R. N. Kalghatgi"}}, {"text": "8-11-1963", "label": "DATE", "start_char": 19501, "end_char": 19510, "source": "ner", "metadata": {"in_sentence": "Before the Company Judge could give his decision, on 8-11-1963, S. G. Pant, the Chairman of the Board of Directors, had expired on 29-8-1961."}}, {"text": "29-8-1961", "label": "DATE", "start_char": 19579, "end_char": 19588, "source": "ner", "metadata": {"in_sentence": "Before the Company Judge could give his decision, on 8-11-1963, S. G. Pant, the Chairman of the Board of Directors, had expired on 29-8-1961."}}, {"text": "D. R. Angolkar", "label": "OTHER_PERSON", "start_char": 19594, "end_char": 19608, "source": "ner", "metadata": {"in_sentence": "and D. R. Angolkar, Director, had died on 10-10-1962.", "canonical_name": "D. R.\n\nAngolkar"}}, {"text": "10-10-1962", "label": "DATE", "start_char": 19632, "end_char": 19642, "source": "ner", "metadata": {"in_sentence": "and D. R. Angolkar, Director, had died on 10-10-1962."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 19709, "end_char": 19720, "source": "regex", "metadata": {"statute": null}}, {"text": "P.A. Tendolkar", "label": "JUDGE", "start_char": 19795, "end_char": 19809, "source": "ner", "metadata": {"in_sentence": "During the pendency of the applications for certification, under Article 133 of the Constitution, for appeals to this Court, another founder Director, P.A. Tendolkar died, 10-8-1966.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "10-8-1966", "label": "DATE", "start_char": 19816, "end_char": 19825, "source": "ner", "metadata": {"in_sentence": "During the pendency of the applications for certification, under Article 133 of the Constitution, for appeals to this Court, another founder Director, P.A. Tendolkar died, 10-8-1966."}}, {"text": "27-8-1960", "label": "DATE", "start_char": 19999, "end_char": 20008, "source": "ner", "metadata": {"in_sentence": "The Official Liquidator had alleged, in the application for misfeasance proceedings, dated 27-8-1960, that \"the Directors and the employees Of the Bank had misapprooriated or become liable or acoountablle for a total sum of Rs."}}, {"text": "7-3-1951", "label": "DATE", "start_char": 21277, "end_char": 21285, "source": "ner", "metadata": {"in_sentence": "we consider the issue raised and decision given on these by the learned Company Judge and then by the Division Bench,\n\nOn 7-3-1951, after the coming into force of."}}, {"text": "Banking Companies Act 1949", "label": "STATUTE", "start_char": 21323, "end_char": 21349, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "16-3-1949", "label": "DATE", "start_char": 21354, "end_char": 21363, "source": "ner", "metadata": {"in_sentence": "the Banking Companies Act 1949, on 16-3-1949, the Reserve Bank of India had given its short inspection report ( A-1 ) on the affairs of the Bank under Section 22 of the Act."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 21369, "end_char": 21390, "source": "ner", "metadata": {"in_sentence": "the Banking Companies Act 1949, on 16-3-1949, the Reserve Bank of India had given its short inspection report ( A-1 ) on the affairs of the Bank under Section 22 of the Act."}}, {"text": "Section 22", "label": "PROVISION", "start_char": 21470, "end_char": 21480, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act 1949", "statute": "the Banking Companies Act 1949"}}, {"text": "5-3-1953", "label": "DATE", "start_char": 22606, "end_char": 22614, "source": "ner", "metadata": {"in_sentence": "On 5-3-1953, a second report (A-2), under Section 22 of the Act, was given by the Reserve Bank, in which it was observed."}}, {"text": "Section 22", "label": "PROVISION", "start_char": 22645, "end_char": 22655, "source": "regex", "metadata": {"statute": null}}, {"text": "13-9-1954", "label": "DATE", "start_char": 23221, "end_char": 23230, "source": "ner", "metadata": {"in_sentence": "On 13-9-1954, a very detailed inspection report (A-3), under Section 35, sub.s(l) of the Aot, carried out on 26-3-1954, was sent by the Resenle Bank to the Bank, with a covering letter, in which the following conclusion was recorded :-\n\n\"On the basis of the above report, it appears that the banking company is conducting its affairs in a manner detrimental to the interests of its depositors."}}, {"text": "Section 35", "label": "PROVISION", "start_char": 23279, "end_char": 23289, "source": "regex", "metadata": {"statute": null}}, {"text": "26-3-1954", "label": "DATE", "start_char": 23327, "end_char": 23336, "source": "ner", "metadata": {"in_sentence": "On 13-9-1954, a very detailed inspection report (A-3), under Section 35, sub.s(l) of the Aot, carried out on 26-3-1954, was sent by the Resenle Bank to the Bank, with a covering letter, in which the following conclusion was recorded :-\n\n\"On the basis of the above report, it appears that the banking company is conducting its affairs in a manner detrimental to the interests of its depositors."}}, {"text": "Resenle Bank", "label": "ORG", "start_char": 23354, "end_char": 23366, "source": "ner", "metadata": {"in_sentence": "On 13-9-1954, a very detailed inspection report (A-3), under Section 35, sub.s(l) of the Aot, carried out on 26-3-1954, was sent by the Resenle Bank to the Bank, with a covering letter, in which the following conclusion was recorded :-\n\n\"On the basis of the above report, it appears that the banking company is conducting its affairs in a manner detrimental to the interests of its depositors."}}, {"text": "Bank of India", "label": "ORG", "start_char": 23625, "end_char": 23638, "source": "ner", "metadata": {"in_sentence": "The Reserve Bank of India, therefore, proposes to give it a notice in writing in terms oi the first proviso to subsection (2) of Section 22 of the Act that a licence to carry on banking business in India cannot be granted to it''. ,,.-"}}, {"text": "Section 22", "label": "PROVISION", "start_char": 23742, "end_char": 23752, "source": "regex", "metadata": {"statute": null}}, {"text": "26th November. 1954", "label": "DATE", "start_char": 23975, "end_char": 23994, "source": "ner", "metadata": {"in_sentence": "After suspension of payments by the Bank on 26th November."}}, {"text": "1-12-1954", "label": "DATE", "start_char": 24021, "end_char": 24030, "source": "ner", "metadata": {"in_sentence": "1954, the Bank had applied, on 1-12-1954, 'to the High Court of Bombay, under Section 37 of the Act, praying for the grant of a moratorium and for opportunity to be given to reconstruct the Banking Company as a going concern."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 24040, "end_char": 24060, "source": "ner", "metadata": {"in_sentence": "1954, the Bank had applied, on 1-12-1954, 'to the High Court of Bombay, under Section 37 of the Act, praying for the grant of a moratorium and for opportunity to be given to reconstruct the Banking Company as a going concern."}}, {"text": "Section 37", "label": "PROVISION", "start_char": 24068, "end_char": 24078, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 24253, "end_char": 24270, "source": "ner", "metadata": {"in_sentence": "An iD'terim order was passed by the Bombay High Court granting moratorium for a period of two months and staying all actions against the Company for this period."}}, {"text": "V. R. Kothagi", "label": "OTHER_PERSON", "start_char": 24384, "end_char": 24397, "source": "ner", "metadata": {"in_sentence": "Shri V. R. Kothagi, an Advocate of Belgaum, was appointed as Special Officer of the Bank under Section 37(3) of the Act, with powers to file suits."}}, {"text": "Belgaum", "label": "GPE", "start_char": 24414, "end_char": 24421, "source": "ner", "metadata": {"in_sentence": "Shri V. R. Kothagi, an Advocate of Belgaum, was appointed as Special Officer of the Bank under Section 37(3) of the Act, with powers to file suits."}}, {"text": "Section 37(3)", "label": "PROVISION", "start_char": 24474, "end_char": 24487, "source": "regex", "metadata": {"statute": null}}, {"text": "Amrit Lal Bhatia", "label": "OTHER_PERSON", "start_char": 24604, "end_char": 24620, "source": "ner", "metadata": {"in_sentence": "Under the directions of the Bombay High Court the Reserve Bank deputed Shri Amrit Lal Bhatia to inspect the records and the working of the Bank and to submit a rep<)rt under the proviso to sub.s (2) of Section 37 of the Act."}}, {"text": "Section 37", "label": "PROVISION", "start_char": 24730, "end_char": 24740, "source": "regex", "metadata": {"statute": null}}, {"text": "13-1-1955", "label": "DATE", "start_char": 24779, "end_char": 24788, "source": "ner", "metadata": {"in_sentence": "This report, submitted on 13-1-1955\n\n(A-4), disdosed a deplorable state of accounts G which contained a number ef false and fraudulent entries, want of supervision by either the officials or the Directors, unauthenticated erasures and alterations inthe accounts, and a shortage of cash to the extent of 2.01 lakhs."}}, {"text": "20-12-1954", "label": "DATE", "start_char": 25182, "end_char": 25192, "source": "ner", "metadata": {"in_sentence": "H On 20-12-1954, the Directors of the Bank, wfth the concurrence of the Special Officer, had appointed Shri K. Y. Wagle as Officer to examine the records of the Company with a view to\n\ne\\plore the possibilities of its reconstruction."}}, {"text": "K. Y. Wagle", "label": "OTHER_PERSON", "start_char": 25285, "end_char": 25296, "source": "ner", "metadata": {"in_sentence": "H On 20-12-1954, the Directors of the Bank, wfth the concurrence of the Special Officer, had appointed Shri K. Y. Wagle as Officer to examine the records of the Company with a view to\n\ne\\plore the possibilities of its reconstruction."}}, {"text": "6-2-1955", "label": "DATE", "start_char": 25432, "end_char": 25440, "source": "ner", "metadata": {"in_sentence": "This report, dated J 6-2-1955 (A-21) said :\n\n\"On going through the books of accounts, it is observed that the mis-appropriation penetrates imo the books from 1948 and still earlier and the amounts misappropriated are through entries from (a) Cash, ( b) Bank accounts with other Bankers, ( c) Branch accounts\"."}}, {"text": "8-3-1956", "label": "DATE", "start_char": 26423, "end_char": 26431, "source": "ner", "metadata": {"in_sentence": "On 8-3-1956, a deposi!or of tlte Bank applied to the Bombay High Court for the winding up of the Banking Company."}}, {"text": "13-3-1956", "label": "DATE", "start_char": 26538, "end_char": 26547, "source": "ner", "metadata": {"in_sentence": "On 13-3-1956, a provisional liquidator was appointed, and, on J 6-4-1956, the Bank was ordered to be wound up."}}, {"text": "J 6-4-1956", "label": "DATE", "start_char": 26597, "end_char": 26607, "source": "ner", "metadata": {"in_sentence": "On 13-3-1956, a provisional liquidator was appointed, and, on J 6-4-1956, the Bank was ordered to be wound up."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 26738, "end_char": 26758, "source": "ner", "metadata": {"in_sentence": "As a result of reorganisation of States, the winding up proceedings were transferred to the High Court of Mysore, and, the Official Liquidator at the Mysore High Court was appointed as the Liquidator of the flank."}}, {"text": "22-7-1958", "label": "DATE", "start_char": 26864, "end_char": 26873, "source": "ner", "metadata": {"in_sentence": "On 22-7-1958, the Official Liquidator brought to the notice of the Company Judge an elaborate report\n\n(A-9), dated 10-5-1957, made by M/s. D. D. Joshi & Co., Auditors, appointed by the Direction of the Bank themselves."}}, {"text": "10-5-1957", "label": "DATE", "start_char": 26976, "end_char": 26985, "source": "ner", "metadata": {"in_sentence": "On 22-7-1958, the Official Liquidator brought to the notice of the Company Judge an elaborate report\n\n(A-9), dated 10-5-1957, made by M/s. D. D. Joshi & Co., Auditors, appointed by the Direction of the Bank themselves."}}, {"text": "D. D. Joshi & Co.", "label": "ORG", "start_char": 27000, "end_char": 27017, "source": "ner", "metadata": {"in_sentence": "On 22-7-1958, the Official Liquidator brought to the notice of the Company Judge an elaborate report\n\n(A-9), dated 10-5-1957, made by M/s. D. D. Joshi & Co., Auditors, appointed by the Direction of the Bank themselves."}}, {"text": "S. K. Samant", "label": "LAWYER", "start_char": 27557, "end_char": 27569, "source": "ner", "metadata": {"in_sentence": "(2) The Managing Director Shri S. K. Samant, the Accountant Shri R. S. Deshpande and the three Cashiers.", "canonical_name": "S. K. Samanth"}}, {"text": "R. S. Deshpande", "label": "OTHER_PERSON", "start_char": 27591, "end_char": 27606, "source": "ner", "metadata": {"in_sentence": "(2) The Managing Director Shri S. K. Samant, the Accountant Shri R. S. Deshpande and the three Cashiers."}}, {"text": "S. N. Ajrekar", "label": "OTHER_PERSON", "start_char": 27661, "end_char": 27674, "source": "ner", "metadata": {"in_sentence": "V. K. Nadgouda, S. N. Ajrekar took full advanta2e of the weakness of the Directors, the neglij!ance of the Auditors, and fraudulently mis.appropriated the monies individually and collectively\"."}}, {"text": "24th March, 1954", "label": "DATE", "start_char": 28648, "end_char": 28664, "source": "ner", "metadata": {"in_sentence": "( c) The Auditors, when they counted the cash on 24th March, 1954, could have known that the actual cash on hand verified tly them was far short of <the cash balance shown by the Day Book of that day had they tallied the cash counted by them with the Day Book."}}, {"text": "D. D. Joshi Co", "label": "ORG", "start_char": 29478, "end_char": 29492, "source": "ner", "metadata": {"in_sentence": "In D. D. Joshi Co's report it is also stated :\n\n\"On the event of the commencement of our work, the Directors had resolved to repay a part ( 10% ) of the deposit amounts to the depositors, This was the best opportunity to bring forth oass, books and other records the J?05session of the depositors.. for getting the deposits verified for our purposes."}}, {"text": "Section 45H", "label": "PROVISION", "start_char": 31417, "end_char": 31428, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 31450, "end_char": 31461, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 31477, "end_char": 31490, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s1", "label": "PROVISION", "start_char": 31499, "end_char": 31501, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 109 and 112", "label": "PROVISION", "start_char": 31833, "end_char": 31853, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K. Samanth", "label": "LAWYER", "start_char": 32132, "end_char": 32145, "source": "ner", "metadata": {"in_sentence": "S. K. Samanth.", "canonical_name": "S. K. Samanth"}}, {"text": "Section 235", "label": "PROVISION", "start_char": 32896, "end_char": 32907, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 32915, "end_char": 32928, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 543", "label": "PROVISION", "start_char": 32957, "end_char": 32968, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 32976, "end_char": 32989, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 64", "label": "PROVISION", "start_char": 33033, "end_char": 33043, "source": "regex", "metadata": {"statute": null}}, {"text": "1-4-1956", "label": "DATE", "start_char": 33207, "end_char": 33215, "source": "ner", "metadata": {"in_sentence": "that Act, in a' case in which the winding up of the Company had begun, as it did in the instant case, before the commencement of the 1956 Act on 1-4-1956."}}, {"text": "8-11-19~3", "label": "DATE", "start_char": 33346, "end_char": 33355, "source": "ner", "metadata": {"in_sentence": "But, in respect of the Managing Director and those Directors who were alive when the learned Company Judge gave his decision on 8-11-19~3, it was held that the proceedings were covered by the special provisions of Section 45(0) of the Banking Companies\n\nAct applicable to them."}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 33432, "end_char": 33445, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 33521, "end_char": 33534, "source": "regex", "metadata": {"statute": null}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 33601, "end_char": 33686, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian 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"Section 45", "label": "PROVISION", "start_char": 35309, "end_char": 35319, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1913", "label": "STATUTE", "start_char": 35331, "end_char": 35358, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 35904, "end_char": 35917, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1913", "statute": "the Banking Companies Act, 1913"}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 36297, "end_char": 36310, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1913", "statute": "the Banking Companies Act, 1913"}}, {"text": "Section 235", "label": "PROVISION", "start_char": 36563, "end_char": 36574, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 36582, "end_char": 36595, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 36665, "end_char": 36678, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45", "label": "PROVISION", "start_char": 36751, "end_char": 36761, "source": "regex", "metadata": {"statute": null}}, {"text": "1-10-1959", "label": "DATE", "start_char": 36785, "end_char": 36794, "source": "ner", "metadata": {"in_sentence": "having expired before the Act XXXIII of 1959, by which Section 45 (O)(ii) was amended on 1-10-1959, time barred claims couhl not be revived whether the case was governed by the limitation laid down in Section 235 of the Act of 1913, or that in Section 45 (0) of the Act."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 36897, "end_char": 36908, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45", "label": "PROVISION", "start_char": 36940, "end_char": 36950, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 36988, "end_char": 36999, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45(0)", "label": "PROVISION", "start_char": 37117, "end_char": 37130, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45(0)(ii)", "label": "PROVISION", "start_char": 37240, "end_char": 37257, "source": "regex", "metadata": {"statute": null}}, {"text": "East of England Bank", "label": "ORG", "start_char": 39104, "end_char": 39124, "source": "ner", "metadata": {"in_sentence": "The liability of a Director for such wrong doing was held to b~ of personal character which vanished with the death of a Director, Reliance had been placed, by the Company Judge, on : In Re, East of England Bank-Fe/tom's Executors Case,( 1) which had been followed in Re : United English and Scottisl1 Assurance Companyex-purte Hawkins,(\") and in Re: British Guardian Life Assurance Company.(')"}}, {"text": "British Guardian Life Assurance Company", "label": "ORG", "start_char": 39264, "end_char": 39303, "source": "ner", "metadata": {"in_sentence": "The liability of a Director for such wrong doing was held to b~ of personal character which vanished with the death of a Director, Reliance had been placed, by the Company Judge, on : In Re, East of England Bank-Fe/tom's Executors Case,( 1) which had been followed in Re : United English and Scottisl1 Assurance Companyex-purte Hawkins,(\") and in Re: British Guardian Life Assurance Company.(')"}}, {"text": "Angolkar", "label": "OTHER_PERSON", "start_char": 39988, "end_char": 39996, "source": "ner", "metadata": {"in_sentence": "The learned Judge, •therefore, held that proceedings could not continue against the heirs of either the Chairman of the Board, S. G. Pant, or the Director Angolkar, who had died before the Company Judge gave his decision on 8-11-1963."}}, {"text": "Chafrman Pant", "label": "OTHER_PERSON", "start_char": 40170, "end_char": 40183, "source": "ner", "metadata": {"in_sentence": "The correctness of the decision of the Company Judge to exempt heirs and legal representatives of the Chafrman Pant and the Director Angolkar was not questioned by any party in the five appeah before the Division Bench."}}, {"text": "Pant", "label": "OTHER_PERSON", "start_char": 40365, "end_char": 40369, "source": "ner", "metadata": {"in_sentence": "Their possible liabilities, as persons upn whom the assets and properties of Pant and Angolkar may\n\n(I) 1865 (I) Equity C'Ses 219."}}, {"text": "s 787", "label": "PROVISION", "start_char": 40445, "end_char": 40450, "source": "regex", "metadata": {"statute": null}}, {"text": "Tendolkar", "label": "PETITIONER", "start_char": 40896, "end_char": 40905, "source": "ner", "metadata": {"in_sentence": "before us in respect of the liabiility, if any, of the heirs and legal representatives of Director Tendolkar who died on 10-8-1966 pending the grant of his application for certification of fitness of the case under Article 13 3 of the Constitution for an appeal to this Court.", "canonical_name": "Tendolkar"}}, {"text": "Article 13", "label": "PROVISION", "start_char": 41012, "end_char": 41022, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 165", "label": "PROVISION", "start_char": 42161, "end_char": 42172, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 42187, "end_char": 42200, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235", "label": "PROVISION", "start_char": 42228, "end_char": 42239, "source": "regex", "metadata": {"statute": null}}, {"text": "Sharne", "label": "OTHER_PERSON", "start_char": 42593, "end_char": 42599, "source": "ner", "metadata": {"in_sentence": "Edwards;(') Re : Sharne(')."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 42728, "end_char": 42745, "source": "ner", "metadata": {"in_sentence": "a Division Bench of the Madras High Court held that, as the position of a Director of a Company was analogous to that of a trustee with regard to powers over the funds of the Company, and, as his office was of a fiduciary character, he would be liable for breaches of trust if he misused his powers."}}, {"text": "SUPREME BANK LTD. V. P.A. TENDOLKAR", "label": "PETITIONER", "start_char": 43345, "end_char": 43380, "source": "ner", "metadata": {"in_sentence": "ff I\n\nSUPREME BANK LTD."}}, {"text": "New F/emirg Spinning & Weaving Co.\n\nLtd.", "label": "PETITIONER", "start_char": 43403, "end_char": 43443, "source": "ner", "metadata": {"in_sentence": "V. P.A. TENDOLKAR (Beg, J.) 379\n\nIn the New F/emirg Spinning & Weaving Co.\n\nLtd.\n\nVs."}}, {"text": "Kessorji Nalik", "label": "RESPONDENT", "start_char": 43450, "end_char": 43464, "source": "ner", "metadata": {"in_sentence": "Kessorji Nalik & Ors.,(')"}}, {"text": "Section 235", "label": "PROVISION", "start_char": 43858, "end_char": 43869, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act 1913", "label": "STATUTE", "start_char": 43877, "end_char": 43895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 306", "label": "PROVISION", "start_char": 44013, "end_char": 44024, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act 1913", "statute": "the Companies Act 1913"}}, {"text": "Indian Succession Act", "label": "STATUTE", "start_char": 44032, "end_char": 44053, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235", "label": "PROVISION", "start_char": 44287, "end_char": 44298, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act 1913", "statute": "the Companies Act 1913"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 44306, "end_char": 44319, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Peerdan luharmal Bank Ltd.", "label": "RESPONDENT", "start_char": 44616, "end_char": 44642, "source": "ner", "metadata": {"in_sentence": "Supra); and in Re : The Peerdan luharmal Bank Ltd. (Supra)."}}, {"text": "Abhyankar", "label": "OTHER_PERSON", "start_char": 44882, "end_char": 44891, "source": "ner", "metadata": {"in_sentence": "In Abhyankar's case (Supra) the Defendant against whom a suit for damages for defamation had been decreed had died during the pendency of the appeal against the decree pssed."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 45358, "end_char": 45378, "source": "ner", "metadata": {"in_sentence": "The High Court referred to several cases, including a Full Bench decision of the Allahabad High Court in Padarath Vs."}}, {"text": "Edge", "label": "JUDGE", "start_char": 45414, "end_char": 45418, "source": "ner", "metadata": {"in_sentence": "Raja Ram,(') where Edge, C.J. had said :\n\n\"I have always understood the law to 1:1e that, in those case in which an action would abate upon the death of the plaintiff before judgment, the action would not abate if final judgment had been obtained before the death of the plaintiff\",\n\nThen the Court held :\n\n\"The result of these authorities would cfearly seem to be that, where the claim has been perfected by a\n\njudgment, t)l.e nature of the relief claimed on appeal\n\n(I) l.L.R. IX Born."}}, {"text": "S. I. JJ.ao Sahib", "label": "OTHER_PERSON", "start_char": 46139, "end_char": 46156, "source": "ner", "metadata": {"in_sentence": "In S. I. JJ.ao Sahib's case (Supra) it was held that a reversioner's right was \"personal\" which vanished with the death of the plaintiff."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 46561, "end_char": 46572, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 46847, "end_char": 46858, "source": "regex", "metadata": {"statute": null}}, {"text": "Winfield", "label": "OTHER_PERSON", "start_char": 46961, "end_char": 46969, "source": "ner", "metadata": {"in_sentence": "The maxim Actio persona/is moritur cum persona, as pointed in Winfield's \"Law of Tort (Eighth Edn."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 48773, "end_char": 48784, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 50171, "end_char": 50182, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 543", "label": "PROVISION", "start_char": 50208, "end_char": 50219, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 50227, "end_char": 50240, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235", "label": "PROVISION", "start_char": 50377, "end_char": 50388, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 543", "label": "PROVISION", "start_char": 50412, "end_char": 50423, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 50431, "end_char": 50444, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235", "label": "PROVISION", "start_char": 51517, "end_char": 51528, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 51860, "end_char": 51871, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 542", "label": "PROVISION", "start_char": 51952, "end_char": 51963, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 51971, "end_char": 51984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 543", "label": "PROVISION", "start_char": 53441, "end_char": 53452, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 542", "label": "PROVISION", "start_char": 53486, "end_char": 53497, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 53505, "end_char": 53518, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235", "label": "PROVISION", "start_char": 53744, "end_char": 53755, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 543", "label": "PROVISION", "start_char": 53797, "end_char": 53808, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 54481, "end_char": 54492, "source": "regex", "metadata": {"statute": null}}, {"text": "City Equitable Life Insurance Co.", "label": "ORG", "start_char": 55920, "end_char": 55953, "source": "ner", "metadata": {"in_sentence": "H In Re: City Equitable Life Insurance Co.,(') which is regard as the locus classicus on the subject, was relied upon by\n\n(1) [1925] Ch."}}, {"text": "Romer", "label": "JUDGE", "start_char": 56079, "end_char": 56084, "source": "ner", "metadata": {"in_sentence": "Here, Romer, J., after considering earlier authorities, said:\n\n\"In order, therefore, to ascertain the duties that a person appointed to the board of an e&tablished company undertakes to perform, it is necessary to consider not only the nature of the company's business, but also the manner in which the work of the company is in fact distributed between the Directors and the other officials of the Company, provided always that this distribution is a reasonable one in the circumstances, and is not inconsistent witb."}}, {"text": "Neville", "label": "JUDGE", "start_char": 57160, "end_char": 57167, "source": "ner", "metadata": {"in_sentence": "But, as pointed out by Neville J. in Re."}}, {"text": "Lindley M.R.", "label": "OTHER_PERSON", "start_char": 58147, "end_char": 58159, "source": "ner", "metadata": {"in_sentence": "In the words of Lindley M.R.; 'If Directors act within their powers;."}}, {"text": "Ialsbury L.C.", "label": "OTHER_PERSON", "start_char": 59882, "end_char": 59895, "source": "ner", "metadata": {"in_sentence": "In that context, Lord }Ialsbury L.C. had oberved as follows :\n\n\"It is obvious if there is such a duty of detecting frauds it must render anything like an intelligent devolution of labour impossibfo ..... I cannot think it can be expected of a Director that he should be watching either the inferior officers of the bank or verifying the calculations of the auditor himself."}}, {"text": "Davey", "label": "OTHER_PERSON", "start_char": 60428, "end_char": 60433, "source": "ner", "metadata": {"in_sentence": "In this very case, Lord Davey said :\n\n\"I think the respondent (Cory) was bound to give his attention to and exercise, his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so."}}, {"text": "Cory", "label": "RESPONDENT", "start_char": 60467, "end_char": 60471, "source": "ner", "metadata": {"in_sentence": "In this very case, Lord Davey said :\n\n\"I think the respondent (Cory) was bound to give his attention to and exercise, his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so."}}, {"text": "Danham & Co.", "label": "ORG", "start_char": 60914, "end_char": 60926, "source": "ner", "metadata": {"in_sentence": "In Re : Danham & Co.,(') a Director was held not liable for the fraud of his Co-Directors in issuing false and fraudulent reports and balance sheets."}}, {"text": "Palmer", "label": "OTHER_PERSON", "start_char": 61345, "end_char": 61351, "source": "ner", "metadata": {"in_sentence": "In Palmer's \"Company Law\" (21st Edn."}}, {"text": "articles 109 and 118", "label": "PROVISION", "start_char": 62923, "end_char": 62943, "source": "regex", "metadata": {"statute": null}}, {"text": "article 125", "label": "PROVISION", "start_char": 64527, "end_char": 64538, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K. Semant", "label": "LAWYER", "start_char": 64623, "end_char": 64635, "source": "ner", "metadata": {"in_sentence": "The Managing Director S. K. Semant, who had tried to prove that it was the Board of Directors which really and actually conducted the affairs of the Company and that he was merely a tool, had relied on this article G which reads as follows :\n\n\"Powers of Directors.", "canonical_name": "S. K. Samanth"}}, {"text": "R. P. Joshi", "label": "OTHER_PERSON", "start_char": 67833, "end_char": 67844, "source": "ner", "metadata": {"in_sentence": "Secondly, it appears that one R. P. Joshi was appointed as Manager or Chief Officer but unceremoniously removed from service shortly after his appointment because with a view to set right matters he !"}}, {"text": "Kalghatgi", "label": "OTHER_PERSON", "start_char": 68970, "end_char": 68979, "source": "ner", "metadata": {"in_sentence": "But Kalghatgi in his evidence stated that Tendolkar was one of them but declined to admit that he also was a member thereof.", "canonical_name": "N. Kalghatgi"}}, {"text": "Ajgaonkar", "label": "OTHER_PERSON", "start_char": 72299, "end_char": 72308, "source": "ner", "metadata": {"in_sentence": "The 1ea, rned Company Judge had ordered the Managing Director as well as the Directors Tendolkar and Ajgaonkar and Porwal and Kalghatgi to contribute jointly and severally a sum of Rs."}}, {"text": "Porwal", "label": "OTHER_PERSON", "start_char": 72313, "end_char": 72319, "source": "ner", "metadata": {"in_sentence": "The 1ea, rned Company Judge had ordered the Managing Director as well as the Directors Tendolkar and Ajgaonkar and Porwal and Kalghatgi to contribute jointly and severally a sum of Rs."}}, {"text": "SUPREME BANK LTD", "label": "PETITIONER", "start_char": 72668, "end_char": 72684, "source": "ner", "metadata": {"in_sentence": "SUPREME BANK LTD, V, P.A. TENDOLKAR (Beg, J.)\n\n3!H\n\nThe Division Bench found the estimate of the Company Judge about the total loss due to mismanagement to be not only reasonable, but record findings."}}, {"text": "P.A. TENDOLKAR", "label": "JUDGE", "start_char": 72689, "end_char": 72703, "source": "ner", "metadata": {"in_sentence": "SUPREME BANK LTD, V, P.A. TENDOLKAR (Beg, J.)\n\n3!H\n\nThe Division Bench found the estimate of the Company Judge about the total loss due to mismanagement to be not only reasonable, but record findings.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "19-11-1954", "label": "DATE", "start_char": 73771, "end_char": 73781, "source": "ner", "metadata": {"in_sentence": "58,500, on 19-11-1954, and 3-12-1954 respectively, under flOJllC pressure, threat, or coercion."}}, {"text": "3-12-1954", "label": "DATE", "start_char": 73787, "end_char": 73796, "source": "ner", "metadata": {"in_sentence": "58,500, on 19-11-1954, and 3-12-1954 respectively, under flOJllC pressure, threat, or coercion."}}, {"text": "8-12-1954", "label": "DATE", "start_char": 73963, "end_char": 73972, "source": "ner", "metadata": {"in_sentence": "It relied upon a statement in writing of the Managing Director (A. 25) addressed to the Special Officer on 8-12-1954 in which the amounts of the two pronotes totalling upto Rs."}}, {"text": "Tendolkar", "label": "WITNESS", "start_char": 75213, "end_char": 75222, "source": "ner", "metadata": {"in_sentence": "58,500 and of Directors Tendolkar and Ajgaonker\n\njointly and severally to Rs."}}, {"text": "Ajgaonker", "label": "WITNESS", "start_char": 75227, "end_char": 75236, "source": "ner", "metadata": {"in_sentence": "58,500 and of Directors Tendolkar and Ajgaonker\n\njointly and severally to Rs."}}, {"text": "S. K. Sama.nt", "label": "LAWYER", "start_char": 75626, "end_char": 75639, "source": "ner", "metadata": {"in_sentence": "This meant that the joint and several liabilities of Ajgaonkar with the Managing Director S. K. Sama.nt would only come into play if S. K. Samant failed to discharge his\n\nown liability to the extent of Rs.", "canonical_name": "S. K. Samanth"}}, {"text": "S. K, Samant", "label": "LAWYER", "start_char": 76082, "end_char": 76094, "source": "ner", "metadata": {"in_sentence": "14,000 from the sale of a car and truck of S. K, Samant.", "canonical_name": "S. K. Samanth"}}, {"text": "R. W. Porwal", "label": "OTHER_PERSON", "start_char": 78237, "end_char": 78249, "source": "ner", "metadata": {"in_sentence": "tioned on the delinquent Board of Directors, reduced the eontrl- tolle made by R. W. Porwal and H. N. Kalghatgi .to\n\nSUPREME BANK LTD •. v. P.A. TENOOLKAR (Beg, J.) 393\n\nA Rs.", "canonical_name": "R. W. Forwal"}}, {"text": "H. N. Kalghatgi", "label": "OTHER_PERSON", "start_char": 78254, "end_char": 78269, "source": "ner", "metadata": {"in_sentence": "tioned on the delinquent Board of Directors, reduced the eontrl- tolle made by R. W. Porwal and H. N. Kalghatgi .to\n\nSUPREME BANK LTD •. v. P.A. TENOOLKAR (Beg, J.) 393\n\nA Rs.", "canonical_name": "R. N. Kalghatgi"}}, {"text": "S. K.\n\nSamant", "label": "LAWYER", "start_char": 79565, "end_char": 79578, "source": "ner", "metadata": {"in_sentence": "While we think that the Division Bench was justified itli placing a larger share of the burden of contribution on the Managing Director, upon the facts and circumstances of this case, it had manifestly erred in passing an order which not only reduced the total liability of the Directors, but had, without giving any good reason for it, reduced the individual remaining liaty of S. K.\n\nSamant to Rs.", "canonical_name": "S. K. Samanth"}}, {"text": "Samant", "label": "OTHER_PERSON", "start_char": 79942, "end_char": 79948, "source": "ner", "metadata": {"in_sentence": "38,000 for the amounts already realised from Samant)."}}, {"text": "A. L. Bhatia", "label": "WITNESS", "start_char": 80138, "end_char": 80150, "source": "ner", "metadata": {"in_sentence": "Shri A. L. Bhatia (P.W. 1), Banking Officer of the Reserve Bank of F India, had ."}}, {"text": "Reserve Bank of F India", "label": "ORG", "start_char": 80184, "end_char": 80207, "source": "ner", "metadata": {"in_sentence": "Shri A. L. Bhatia (P.W. 1), Banking Officer of the Reserve Bank of F India, had ."}}, {"text": "7-3-1951(Al", "label": "DATE", "start_char": 80265, "end_char": 80276, "source": "ner", "metadata": {"in_sentence": "duly proved facts disclosed in the reports, dated 7-3-1951(Al), dated 5-3-1953 (A2), dated 13-9-1954 (A3), and dated 13-1-1955 (A4), which were made after carrying out inspections of the records disclosing the manner in which the business of the .Bank was conducted."}}, {"text": "-3-1953", "label": "DATE", "start_char": 80286, "end_char": 80293, "source": "ner", "metadata": {"in_sentence": "duly proved facts disclosed in the reports, dated 7-3-1951(Al), dated 5-3-1953 (A2), dated 13-9-1954 (A3), and dated 13-1-1955 (A4), which were made after carrying out inspections of the records disclosing the manner in which the business of the .Bank was conducted."}}, {"text": "B. D. Joshi", "label": "WITNESS", "start_char": 80551, "end_char": 80562, "source": "ner", "metadata": {"in_sentence": "Shri B. D. Joshi, G Chartered Accountant (PW."}}, {"text": "K. Y. Wagle", "label": "WITNESS", "start_char": 80903, "end_char": 80914, "source": "ner", "metadata": {"in_sentence": "Shri K. Y. Wagle (PW."}}, {"text": "16-2-1955", "label": "DATE", "start_char": 81038, "end_char": 81047, "source": "ner", "metadata": {"in_sentence": "3), Auditor, was H examined biy the Official Liquidator to prove and support the contents of his report (A. 21) dated 16-2-1955."}}, {"text": "Section 37", "label": "PROVISION", "start_char": 81160, "end_char": 81170, "source": "regex", "metadata": {"statute": null}}, {"text": "7-12-1954", "label": "DATE", "start_char": 81207, "end_char": 81216, "source": "ner", "metadata": {"in_sentence": "4) who, as indicated above, had been appointed as the Special Officer, under Section 37 of the Act, and who functioned from 7-12-1954 to 4-4-1955 in that capacity, had duly proved and was fully cross-examined about the admissions made in writing (Ex."}}, {"text": "4-4-1955", "label": "DATE", "start_char": 81220, "end_char": 81228, "source": "ner", "metadata": {"in_sentence": "4) who, as indicated above, had been appointed as the Special Officer, under Section 37 of the Act, and who functioned from 7-12-1954 to 4-4-1955 in that capacity, had duly proved and was fully cross-examined about the admissions made in writing (Ex."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 82405, "end_char": 82416, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 82424, "end_char": 82450, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 235", "label": "PROVISION", "start_char": 83066, "end_char": 83077, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 83085, "end_char": 83111, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 83801, "end_char": 83830, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 45G", "label": "PROVISION", "start_char": 84639, "end_char": 84650, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "26-11-1954", "label": "DATE", "start_char": 85925, "end_char": 85935, "source": "ner", "metadata": {"in_sentence": "1.50,4 71-15-7, yet, the actual cash found on 26-11-1954 when the Bank closed business was G Rs."}}, {"text": "31-12-1947", "label": "DATE", "start_char": 86929, "end_char": 86939, "source": "ner", "metadata": {"in_sentence": "To explain them away, debits were made to a suspense account for the purpose of preparing the balance sheet ending on 31-12-1947."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 87011, "end_char": 87021, "source": "regex", "metadata": {"statute": null}}, {"text": "B. D. Joshi", "label": "OTHER_PERSON", "start_char": 87635, "end_char": 87646, "source": "ner", "metadata": {"in_sentence": "In earlier paragraphs of the petition, details of reports of Shri K. Y. Wagle, dated 16-2-1955, and of B. D. Joshi, given on 10-5-1957, and the explanations given bty\n\nthe Directors, were mentioned."}}, {"text": "Section 45", "label": "PROVISION", "start_char": 91535, "end_char": 91545, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45G", "label": "PROVISION", "start_char": 91766, "end_char": 91777, "source": "regex", "metadata": {"statute": null}}, {"text": "27-8-1954", "label": "DATE", "start_char": 94695, "end_char": 94704, "source": "ner", "metadata": {"in_sentence": "A3) dated 27-8-1954 under Section 35(1) of the Act; '\"Ibei cash in hand at the Head office was verified on 17th May 1954, and it was foulld that it was shon to the extent of Rs."}}, {"text": "Section 35(1)", "label": "PROVISION", "start_char": 94711, "end_char": 94724, "source": "regex", "metadata": {"statute": null}}, {"text": "17th May 1954", "label": "DATE", "start_char": 94792, "end_char": 94805, "source": "ner", "metadata": {"in_sentence": "A3) dated 27-8-1954 under Section 35(1) of the Act; '\"Ibei cash in hand at the Head office was verified on 17th May 1954, and it was foulld that it was shon to the extent of Rs."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 95200, "end_char": 95204, "source": "regex", "metadata": {"statute": null}}, {"text": "Wagle", "label": "OTHER_PERSON", "start_char": 95234, "end_char": 95239, "source": "ner", "metadata": {"in_sentence": "1,73,000 in the report of Shri Wagle (Ex."}}, {"text": "24-3-1954", "label": "DATE", "start_char": 95447, "end_char": 95456, "source": "ner", "metadata": {"in_sentence": "A.21) also showed that B when the Auditor's clerk counted the cash on 24-3-1954, it was Rs."}}, {"text": "P. A. Tendolkar", "label": "JUDGE", "start_char": 97311, "end_char": 97326, "source": "ner", "metadata": {"in_sentence": "the Company Judge, namely, P. A. Tendolkar and L. S. Ajgaonkar.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "P. A. Tendolkar", "label": "JUDGE", "start_char": 98140, "end_char": 98155, "source": "ner", "metadata": {"in_sentence": "We substitute :he following determination of their respective liabilities and directions :\n\n(I) The total remaining liabilities of the Managing Director S. K. Samant and Directors P. A. Tendolkar and L. S. Ajgaonkar, R. K. Porwal and R. N. Kalghatgi are held to be Rs.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "R. K. Porwal", "label": "OTHER_PERSON", "start_char": 98177, "end_char": 98189, "source": "ner", "metadata": {"in_sentence": "We substitute :he following determination of their respective liabilities and directions :\n\n(I) The total remaining liabilities of the Managing Director S. K. Samant and Directors P. A. Tendolkar and L. S. Ajgaonkar, R. K. Porwal and R. N. Kalghatgi are held to be Rs.", "canonical_name": "R. W. Forwal"}}, {"text": "N. Kalghatgi", "label": "OTHER_PERSON", "start_char": 98197, "end_char": 98209, "source": "ner", "metadata": {"in_sentence": "We substitute :he following determination of their respective liabilities and directions :\n\n(I) The total remaining liabilities of the Managing Director S. K. Samant and Directors P. A. Tendolkar and L. S. Ajgaonkar, R. K. Porwal and R. N. Kalghatgi are held to be Rs.", "canonical_name": "N. Kalghatgi"}}, {"text": "S.\n\nSamant", "label": "LAWYER", "start_char": 98687, "end_char": 98697, "source": "ner", "metadata": {"in_sentence": "5,000 respectively, and discharged, these amounts will be deducted from the amount to be contribll'ted by the remaining three Directors S.\n\nSamant, P. A.\n\nTendolkar, and Ajgaonkar, and no further contribution will be demanded from Porwal and Kalkhatgi who have already paid these amounts.", "canonical_name": "S. K. Samanth"}}, {"text": "P. A.\n\nTendolkar", "label": "JUDGE", "start_char": 98699, "end_char": 98715, "source": "ner", "metadata": {"in_sentence": "5,000 respectively, and discharged, these amounts will be deducted from the amount to be contribll'ted by the remaining three Directors S.\n\nSamant, P. A.\n\nTendolkar, and Ajgaonkar, and no further contribution will be demanded from Porwal and Kalkhatgi who have already paid these amounts.", "canonical_name": "P .. A. Tendolkar"}}, {"text": "Kalkhatgi", "label": "OTHER_PERSON", "start_char": 98793, "end_char": 98802, "source": "ner", "metadata": {"in_sentence": "5,000 respectively, and discharged, these amounts will be deducted from the amount to be contribll'ted by the remaining three Directors S.\n\nSamant, P. A.\n\nTendolkar, and Ajgaonkar, and no further contribution will be demanded from Porwal and Kalkhatgi who have already paid these amounts.", "canonical_name": "N. Kalghatgi"}}, {"text": "P. A.", "label": "OTHER_PERSON", "start_char": 98899, "end_char": 98904, "source": "ner", "metadata": {"in_sentence": "Thus, the remaining further liability of S. K. Samant and\n\nP. A."}}, {"text": "Tendolkar", "label": "PETITIONER", "start_char": 98906, "end_char": 98915, "source": "ner", "metadata": {"in_sentence": "Tendolkar and Ajgaonkar is red11ced to Rs.", "canonical_name": "Tendolkar"}}, {"text": "S. K. Samailt", "label": "LAWYER", "start_char": 99769, "end_char": 99782, "source": "ner", "metadata": {"in_sentence": "73,500, cannot be recoved from S. K. Samailt only. (", "canonical_name": "S. K. Samanth"}}, {"text": "Jiidge", "label": "OTHER_PERSON", "start_char": 99842, "end_char": 99848, "source": "ner", "metadata": {"in_sentence": "Jiidge for pa.lling such orders againat the Managing\n\nDirector Samant and Director Ajgaonkar, under\n\nSUPREME BANK LTD."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 99996, "end_char": 100007, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 235", "label": "PROVISION", "start_char": 100218, "end_char": 100229, "source": "regex", "metadata": {"statute": null}}, {"text": "P. A. Tendolkar", "label": "PETITIONER", "start_char": 100667, "end_char": 100682, "source": "ner", "metadata": {"in_sentence": "P. A. Tendolkar, now represented by his heirs, is all0wed only to the extent that the order passed under Section 235 of the Act of 1913 for compelling P .. A. Tendolkar to contnoute his share is withdrawn 'as it has become infructuous and 'it is dismissed as regards the rest of the claim. ·", "canonical_name": "P .. A. Tendolkar"}}, {"text": "Section 235", "label": "PROVISION", "start_char": 100772, "end_char": 100783, "source": "regex", "metadata": {"statute": null}}, {"text": "P .. A. Tendolkar", "label": "JUDGE", "start_char": 100818, "end_char": 100835, "source": "ner", "metadata": {"in_sentence": "P. A. Tendolkar, now represented by his heirs, is all0wed only to the extent that the order passed under Section 235 of the Act of 1913 for compelling P .. A. Tendolkar to contnoute his share is withdrawn 'as it has become infructuous and 'it is dismissed as regards the rest of the claim. ·", "canonical_name": "P .. A. Tendolkar"}}]}
{"document_id": "1973_3_402_410_EN", "year": 1973, "text": "UTIAR PRADESH CO-OPERATIVE FEDERATION A v.\n\nTHE STATE OF U.P. & ORS.\n\nJanuary 19, 1973\n\n[S. M. SIKRI, C.J., A, N. RAY, D. G. PALEKAR, M. H. BEG AND\n\nS. N. DWIVEDI, JJ.J\n\nU.P. Cooperative Societies Act, 1965 (Prior to amendment by U.P.\n\nAct No. 1 of 1972) & Rules-Stt.:te Government power to nomintile upfo 2/3rds of total number of .menibers of the committee of the managemenr.\n\nU.P. Cooperative Societies Rules 1968-Reductionof share capital\n\nuless a member is removed acco; ding to Rules share clipit(, ll not affected.-Shares ke, pt in ecurity remained in specie-No reduction of share capitc .. l.\n\nThe petitioner challenged the order passed by the U.P. State GoVi:rn- ment an 26-1-1971 nominating 2/3rds of the total number of members of the committee of the management of the petitioner purp6rting to act under section 34 of the U .P. Cooperative Societies Act,\n\n1965. The subscribed paid up capital of the Federation o, n 30-6-1969 was Rs. 34. 04 lakhs.\n\nOf this, the Slate Government owned shares of the value of Rs. 20 lakhs. The percentage of the State Government in the share holding was 58. 75%.\n\nThe State Government's contention was that the membership of some co-operative bank had been U!rmioated a!Dd. thel'efore the share capital was reduced by Rs. 53,000/-. The State Government also contended that another member.\n\nDistrict C.ooperative Federation, Saharanpur retired Rs. 50,000/- out of his share capital with the Federation. The State Government, therefore, claimed that its share holding had gone to 60% and, thel'efore, had a right under s. 34 to nominate its nominees to .the comqiittee of the management.\n\nThe petitioner challenged the order on the ground that the condition precedent of the State Government holding 60% of the sh-ares in the share capital of the Federation was :not fulfilled.\n\nIt also raised several other grounds including tbe constitutional validity of Sec. 34 of the Act.\n\nAllowing the writ petition, HELD : (i) The p'rovisions of the Act and Rules indicate that the co-operative banks did not cease to be the members. as there Was no resolution removing the b3!1>ks from membership. Rule 3 2 indicates that there is no reduction of share capital as the shares of the bank& were not transferred to any other pel'son. The shares still stood in the name of the co-operative banks and the share capital was not reducod by Rs. 53,000/-.\n\n[408H; 409A-CJ\n\n(ii) Saharanpur District Cooperatiye Federation was still a member,\n\nas it was no't removed from membeTship.\n\nIt share mQOCy cannot . be taken out of share capital fund god treated as security money. The shares were not kept in security.\n\nEven if the shares were in seity, the shares remained in specie. The share capital of the petitioner. was not reduced by Rs. 50,000/·. [409F-H; 410A--C]\n\n(iii) As the shares in both the cases were still part of the share capitlll, the State Government was not justified to exercise right ilnder section 34 of the Act.\n\n[410D-F]\n\nORIGINAL/CIVIL APPELLATE JURISDICTION : Writ Petition C No. 243 of 1971 and Civil Appeal No. 592 of 1972.\n\nWrit Petition No. 243 of 1971\n\nPetition 11nder Article 32 of the Constitution of India for the enforcement of fundamental rigbts and Civil Appeal No. 592 of 1972.\n\nAppeal py a special leave from the judgment and order dailed December 8, 1970 of the Allahabad High Court Civil Misc. Writ No. 4700.\n\nA. K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dluiram Pal Singh Chauhan, for the petitioner .and appellant.\n\nC. K. Daphtary, B. Sen and 0. P. Rana, for respondents Nos. 1-4, 10-11 (in W.P. No. 243) and respondents Nos. 1 & 2 (in F C.A. No. 592).\n\nThe Judgment of the Court was delivered by\n\nRAY, J.-The Civil Appeal is by special leave from the judgment dated 8 December, 1970 of llhe High Court at Allahabad G dismissing the petition of the appellants. The appellants in 'the Allahabad High Court impeac!ted the first order dated 19 September, 1970 passed under section 34 of the Uttar Pradesh Cooperative Societ.ies Act, 1965 referred to as the Act nominating\n\ntwo-thirds o( the total number of members of the committee of management of the Uttar Pradesh Co-operative Federation. The H apiJellants are the Uttar, Pradesh Co:operative Peileration. itd., Luckn9w referred to as the .Federation and.Veerpal Singh w)!O are both also the petitioners. in the writ petitio~ .\n\nThis writ petition is directed. against the second order of. the Uttar Pradesh State Government dated 26 June, 1971 passed under section 34 of the Act nominating two-thirds of the total number of members of the committee of management of the Federation.\n\nThe question which falls for determination in the writ petition and the civil appeal is whether the State Government under section 34 of the Act could nominate two-thirds of the total number of members of the committee of management of the Federation.\n\nThe annual general meeting of the Federation was held on 30th March 1970. The committee of management of the Federa-\n\n\\ A\n\ntion was elected at the annual general meeting.\n\nThe appellant c petitioner Veerpal Singh on 8 April 1970 was unanimously elected as Chairman of the Federation.\n\nOn 19 September, 1970 the State Government passed an order under section 34 of the Act and nominated two-thirds of the members of the committee of management of the Federation. It may be stated here that under section 34 of the Act where the D share capital subscribed to by tho State Goveinment is ,60 per tent or more of the total share capital of the co-operative society the State Government shall have the right to nominate up to two-thirds of the total numbers of members ot the. committee of management.\n\nThe State Government passed the order on that basis that it had share capital of more than 60 per cent in the Federation. ll:\n\nThe Federation moved the Allahablad High Court against the said order of. the State Government. The High Court stayed the operation of the said order nominating two-thirds of the members of the committee of management. The High CoUtt dismissed the petition of the Federation on 8 December, 1970. On 18 December, 1970 the State Government cancelled the order dated 19 Septem- 1 ber, 1970.\n\nThe Additional Registrar, Co-operative Societies, Uttar Pradesh submitted an inspection report to the effect that the State Govtrnment had been misi)Jformed about the share capital of the Slate Government in the Federation. The report stated that in fabt the share capital of the State Government in the Federation G was never 60 per cent. The report further stated that the mMter should be thoronghly investigated and guilty persons should be punished.\n\nThe appellallt petitioner Veerpal Singh wrote a letter on 12 June, 1971 to the Chief Minister of Uttar Pradesh and asked for immediate acition pursuant to the report of the Additional Registrar ot Co-operative Societies. In that letter V eerpal Singh stated that Om Prakash Tyap, DOputy Registrar, Co-cperative Societies had\n\nF ..\n\nU.P. CO-OPERATWE FEDERATION V. U.P. STATE (Ray,].) 40S\n\nbeen working as Secretary of the Federation Since 1970. Veerpal\n\nSingh also !lated in the letter that on being elected Chairman he examined the accounts and found that Om Prakash Tyagi had been responsible for mal-practices.\n\nOn 26 June, 1971 the Stale Government passed the second orders under section 34 of the Act nominating two-thirds of the total number of members of the committee of management of the Federation. After the State Govent had passed the said order nominating two-thirds of the total number of members of the committee of management the elected members of the committee under rule 38 (b) of the by-laws of the Federation were moved by draw of lots to accommodate the nominated members. The appellant petitioner Veerpal Singh survived the process of draw by lots and retained his membership of the committee of management of the Federation.\n\nIn the Allahabad High Court the appellants challenged the first order of the State Government dated 19 September, 1970 on inter alia the ground thait the share holding of the State Government on facts and in law was not 60% and therefore the State\n\nGovernment was not competent to pass an order under section 34 of the Act. The Allahabad High Court held that if the appellants . denied and disputed facts as to ownership biy the State Government of 60 per cent or more of the Capital of the Federation the High Court could not normally decide controverted facts and the petition would fail. The High CoUit however held that the State Government was justified in taking the view that the share holding had crossed the mark of 60 per cent and therefore the order was valid.\n\nThe petitioners in the writ petition challenged the second order dated 26 June, 1971 passed by the State Government under section\n\n34 of the Act nominating two-thirds of the total number of members of the committee of management. The contentions are four.\n\nFt, that section 34 of the Act gives a naked power without any guidance as to when that power is to be exercised and under what\n\ncircumstance~. Secondly, it is said that the naked power under G section 34 infringes Article 14 of the Constitution by subjecting societies to directors of societies being picked and chosen by the G?verrunent without any principle being involved. Thirdly, it is said that the exercise of power was arbitrary and on extraneous grounds without any hearing being given. Fourthly the condition precedent of the, State Government holding 60 per 'cent of shares m the share capital of the Federation was not tulfllled.\n\nIt i~ not necessary to express any opinion . on the first three c0ntent1ons because in our OPinion the fourth contentiou 111cceeds:\n\nThe subscribed and paid up share capital of the federation on 30 June, 1969 was Rs. 34.04 lakhs.\n\nOf this the State Government owned shares of the value of Rs. 20 Jakhs. The percentage of the State Government in the share holding was 58. 75 per cent.· The State Government case was that in January, 1970 the Federa- .ti001 terminated the membership of the co-operative banks.\n\nThe co-operative banks at that time held shares worth Rs. 53,000.\n\nSubsequently, an individual co-operative society brought shares worth Rs. 1,000 in the Federation. Thus, the total paid up share Capital of the Federation came down to Rs. 33.52 lakhs, according to the version of 1the Government. The further Government case is that in the first week of September, 1970 the District Co-operative Federation, Saharanpur retired Rs. 50,000 out of its share capital ol Rs. 1,51,000 in the Federation. The result, according to the Government, was that the total paid up share capital of the Federation was further reduced to Rs. 33.01 lakhs. On this basis the State Government contended that the share capital of the State Government worth Rs. 20 lakhs was more than 60 per cent. The State Government on this footing of ownership of 60 per cent or more of the share caprtal of the Federation passed order under section 34 of the Act and nominated two-thirds of the total number of members of the committee of management of •the Federation.\n\nThe petitioners as well as the appellants on the other hand contended that neither the shares owned by the co-operative banks to the extent of Rs. 53,000 nor the shares worth Rs. 50,000 owned by the District Co-operative Federation. Saharanpur could be said\n\nby the Government 'lo be reduced. from the total share capital to allow the State Government to take the plea that the State\n\nGovernment owned 60 per cent' or more of the total share capital in the Federation. It is further contended by the petitioners as well as the appellants that on 26 June, 1971 the total share capital of the Federation was Rs. 40,17,000. According to them, this share capital included the share holdings of the co-operative banks at Rs. 53,000 and the further share holdings of Rs. 50,000 be- 1onging to the Saharanpur Federation. The petitioners therefore contended that the share capital of the State Government at Rs. 20 lakhs was not more than 49.81 per cent at the relevant date on 26 June, 1971.\n\nTwo .questions arise. First, whether it could be said that the share holding ol the co-operative banks at Rs. 53,000 was reduced from the share capital on the relevant dates in , September, 1970 or in the month of June, 1971. Second, whether the sum of\n\nRs. 50,000 out of share capital held by the District Co-operative H Federation, Saharanpur in .the share capital of the Federation had been retired with the resuk of reduction of the share capital of\n\nthe Federation.\n\nA Under section 34 of the Act where the share capital subscribed by the State Government is 60 per cent or morll of the total share capital of a co-operative society the State Government shall have the right to nominate up to two-thirds of the total number of members of the committee of management.\n\nUndr section 34 of the Act the State Government in such a cas~_has also the pawer to nominate a Government servant or a non-official as a Chairman B of the commitee. This power of nominating a Chairman i& notwithstanding the provisions contended in section 30 of the Act- Section 30 of the Act speaks of Chairman, Vice-Chairman of the society elected, nominated or appointed in accordance with the provisions of the Act, rules and -bye-laws.\n\nSection 34 further provides that the State Government may exercise right mentioned C therein during the period oi five years from the time the share of the State Government in the share capital of the Federation becomes 60 per cent or more or until such share in the capital goes. down to less than 50 per cent whichever is earlier.\n\nIt may be noticed here that section 34 of the Act has been D amended by Uttar PradCl!h Act I of 1972. The rights of the parties in the present appeal as well as the petition are governed by section 34 of the Act as it stood prior to the amendment.\n\nIn view of the fact that the first order of the State Government dated 19 September, 1970 which was challenged in the Allahabad High Court was cancelled by the State Government ii! the month Of December, 1970 only the validity of the second order. dated'. 26 June, 1971 requires consideration.\n\nThe case of the Government is that under the Act a cooperative bank cannot be a member oi a co-operative society.\n\nPrior to the Act co-operative banks could be share-holders of a co-operative society.\n\nIt is said on behalf of the Government that the Federation modified its bye-laws and made them consistent with the Act by deletfug the co-operative bank from the category of persons who could become members of the Federation.\n\nOn 30 June, 1970 it is said that Rs. 53,000 befug the share money of the co-operative bank was transferred from the share capital account into the suspense account in the books of the Federation.\n\nTherefore, the case oi the Government is th'at the share capital of the Federation stood_ reduced by Rs. 53,000 on 30 June, 1970.\n\nIt appears that prior to the comfug into force of the Act the District Co-operative Banks were members of the Federation.\n\nAfter the Act came into force the bye-laws of the Federation were\n\namended.\n\nUnder bye-law 5 of the Federation the membershipwas limited to two classes, viz., the District Co-operative Feation and the Marketing Societies.\n\nThe District Co-operative Banks therefore were not eligible to be members under the amended\n\nbye-laws.\n\nThe question therefore arises as to what would happen to the shares of the cc>-operative banks who had become members prior to the coming into force of the Act.\n\nSection 17 of the Act speaks of persons who may be members of a co-operative society.\n\nSuch persons are an individual, any other cc>-operative society, the State QQvemment, the Central Govermnent, the State Warehousing Corporation and a body corporate not covered by any other clause and approved by the Registrar. It is also enacted that a joint stock company or an individual shall not be admitted as an ordinary member. Seotion 22 of the Act contemplates restriCtions on individuals in regard to holding of shares. Section 23 of the Act speaks of restrictions on transfer of shares or of intere&t. Section 24 of the Act deals with transfer of interest on death of a member. Section 27 of the Act speaks of removal or expulsion of a member by the Registrar of the Society.\n\nRule 56 .of the Uttar Pradesh Co-operative Societies Rules, 1968 referred to as the Rules broadly deals with removal of members from membership of the society and expulsion of a member from the membership of the society. Rule 56(a)(i) states that a person may be removed from membership if he has ceased to fulfil the qualifications laid down under the Aot, rules and bye-laws of the society or (iv) his membership of the society is inconsistent with the provisions of rule 8 (b). Rule 57 states that a person sought to be removed or expelled under Rule 5 6 shall be called upon by the committee of management to show cause why he should not be removed or expelled. Rule 58 states that the committee of management may by a resolution p11$sed in the meeting remove or expel a memb:er, Rule 59 states that no resolution for removal or expulsion shall be effective unless it is carried by a majority of twc>-thirds of the members present and voting.\n\nRule 63 states that a member of the cc>-operative society shall cease to be a member inter alia on his removal or expulsion from society or retirement, transfer or forfeiture of all the shares held by him.\n\nThe provisions in the Act and the Rules iridicate that the removal can only be under a resolution. There is no provision for .automatic cessation of membership. In the absence of a resolution there is no valid removal of cc>-operative bank from membership.\n\nIn the case of removal of a member the shares of such a memb\\er may under section 23 ( 3) of the Act be transferred to or acquired or retained by a member. Chapter VI ot the Rules con- 1isting of Rules 6S to 82 deals with shares. Rule 82 states that where member of a co-operative society ceases to be such a member th~ value ol his share or interest in the share capital of\n\nthe society to be p'aid ito him or his nominee shall be equal to the actual amount paid by the member to the society. These provisions indicate that there is no reduction of the share capital. There was no removal of co-operative banks from the membership of the Federation. There was no resolution to that effect. The shares owned by the co-operative banks are 1'till in existence.\n\nThese shares have not been yet transferred to tiny one. The shares have not been transferred to, acquired or retained by any person. The shares still stand in the name of the co-operative banks. The share capital is not reduced. It is therefore not valid on the part of pie State Government to reduce the shares worth Rs. 53,000 owned by the co-operative banks, and not to take the same into consideration in calculating the total share capital.\n\nThe other plea of the St11te Government is that shares worth Rs. 50,000 belonging to the Saharanpur District Co-operative Federation were retired with the result that there was reduction of total share capital by a sum of. Rs. 50,000. Retirement of shares is dealt w.ith by rule 66 of the Rules. It is stated in the rule that under section 23 ( 3) of the Act a co-operative society may retire the shares 'Of a member in the instances mentioned therein. The fourth instance in rule 66 is that if a member of a co-operative society has ceased to be a shareholder on account of adjustment of his membership to any other class under rule 44( c) or if he has been removed from membership under rule 56(a), his shares may be retired. Again under Rule 70 a Central Co-operative Society may reduce the share capital according to a scheme approved by the Registrar. Such a scheme may provide for (~) extinguishing or reducing the liability on any of its Ghares in respect of share capital not paid up, or (ii) cancelling any paid up share capital or (iii) paying back any paid up share capital which is in excess of the needs of the central society.\n\nThe Saharanpur District Co-opera1tive Federation never ceased to be a member.\n\nThere has been no removal or expulsion. If the Saharanpur District Co-operative Federation is still a member its share money cannot be taken out of share capital fund and treated as security money.\n\nRetirement of sh.are money under G Rule 66 is in four cases. First, if a member at the time of his admission to memb!:rship enters into share participation agreement between the society and the membler his share may be retired,\n\nSecondly, the shares of a member in a salary earning co-operative society in the event of. transfer of such member from the . area of operation of the society or cessat:on of his service by virtue of which he held membership of the society may be retired. Thirdly, H the shares of a member of a co-operative socJety organised in educational institutions if the member ceases to be a studet or a member of the sta!f of the institution by the virtue of which he\n\nwas holding membership of the society may be retired. None ol these three contingencies of retirement of shares applies to the case of the Saharanpur District Co-operative Federation. The fourth instance mentioned in rule 66 is the retirement of a member who has been removed from membership or has ceased to be a shareholder on account of adjustment of membership under rule 44( c) _ The District Co-operative Federation, Saharanpur does not fall in thi>. class also.\n\nThe amount of Rs. 50,000 representing the shares of the District Co-operative Federation, Saharanpur was said by the State Government to be kept in security. If the shares were in security the shares remained in specie. It could not be said that the shares were :onverted by sale into money. Rule 75 forbids by pothecation of shares as security for any loan. It is therefore not open to the State Government to contend that the shares worth Rs. 50,000 belonging to the District Co-operative Federation, Saharanpu'r were taken off the share capital of the Federation.\n\nThe condition precedent to the exercise of rights_ of the State Government under section 34 is that the State Government owns 60 per cent or more of the share capital of the Federation. The entire basis of exercise of right of the Government was that shares worth Rs. 53,000 owned by the Co-operative anks and shares worth Rs. 50,000 owned by the District Co-operative Federation, Saharanpur were no longer part of the share capital. There is no foundation for the State Government to take up that plea. The shares in both the cases are still part of the share capital. The result is that it could not be said tht the State Government was justllied to exercise right under section 34 of the Act.\n\nFor the foregoing reasons the petition succeeds. The order of the State Government dated 26 June, 1971 is quashed.\n\nThe appeal is also allowed and the judgment of the High Court is set aside for the reasons indicated hereinbefore.\n\nEach party will pay and bear its own costs.\n\nS.B.W.\n\nAppeal allowed.", "total_entities": 84, "entities": [{"text": "UTIAR PRADESH CO-OPERATIVE FEDERATION", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "UTIAR PRADESH CO-OPERATIVE FEDERATION", "offset_not_found": false}}, {"text": "THE STATE OF U.P. & ORS", "label": "RESPONDENT", "start_char": 44, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF U.P. & ORS", "offset_not_found": false}}, {"text": "S. M. SIKRI, C.J.", "label": "JUDGE", "start_char": 89, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "N. RAY", "label": "JUDGE", "start_char": 111, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "D. G. PALEKAR", "label": "JUDGE", "start_char": 119, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 134, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "S. N. DWIVEDI, JJ", "label": "JUDGE", "start_char": 149, "end_char": 166, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Cooperative Societies Act, 1965", "label": "STATUTE", "start_char": 175, "end_char": 206, "source": "regex", "metadata": {}}, {"text": "Cooperative Societies Rules 1968", "label": "STATUTE", "start_char": 384, "end_char": 416, "source": "regex", "metadata": {}}, {"text": "section 34", "label": "PROVISION", "start_char": 816, "end_char": 826, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Societies Rules 1968", "statute": "Cooperative Societies Rules 1968"}}, {"text": "Cooperative Societies Act", "label": "STATUTE", "start_char": 840, "end_char": 865, "source": "regex", "metadata": {}}, {"text": "Slate Government", "label": "ORG", "start_char": 974, "end_char": 990, "source": "ner", "metadata": {"in_sentence": "Of this, the Slate Government owned shares of the value of Rs."}}, {"text": "Saharanpur", "label": "GPE", "start_char": 1368, "end_char": 1378, "source": "ner", "metadata": {"in_sentence": "District C.ooperative Federation, Saharanpur retired Rs."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 1561, "end_char": 1566, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Societies Act,\n\n1965", "statute": "Cooperative Societies Act,\n\n1965"}}, {"text": "Sec. 34", "label": "PROVISION", "start_char": 1899, "end_char": 1906, "source": "regex", "metadata": {"statute": null}}, {"text": "Saharanpur District", "label": "GPE", "start_char": 2402, "end_char": 2421, "source": "ner", "metadata": {"in_sentence": "[408H; 409A-CJ\n\n(ii) Saharanpur District Cooperatiye Federation was still a member,\n\nas it was no't removed from membeTship."}}, {"text": "section 34", "label": "PROVISION", "start_char": 2931, "end_char": 2941, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3119, "end_char": 3129, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3137, "end_char": 3158, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 3370, "end_char": 3379, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dluiram Pal Singh Chauhan, for the petitioner .and appellant."}}, {"text": "A. P. Singh Chauhan", "label": "LAWYER", "start_char": 3381, "end_char": 3400, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dluiram Pal Singh Chauhan, for the petitioner .and appellant."}}, {"text": "V. C. Prashar", "label": "LAWYER", "start_char": 3402, "end_char": 3415, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dluiram Pal Singh Chauhan, for the petitioner .and appellant."}}, {"text": "Dluiram Pal Singh Chauhan", "label": "LAWYER", "start_char": 3420, "end_char": 3445, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dluiram Pal Singh Chauhan, for the petitioner .and appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3483, "end_char": 3497, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen and 0."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 3499, "end_char": 3505, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen and 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 3513, "end_char": 3520, "source": "ner", "metadata": {"in_sentence": "P. Rana, for respondents Nos."}}, {"text": "RAY", "label": "JUDGE", "start_char": 3665, "end_char": 3668, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, J.-The Civil Appeal is by special leave from the judgment dated 8 December, 1970 of llhe High Court at Allahabad G dismissing the petition of the appellants."}}, {"text": "section 34", "label": "PROVISION", "start_char": 3937, "end_char": 3947, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Veerpal Singh", "label": "PETITIONER", "start_char": 4272, "end_char": 4285, "source": "ner", "metadata": {"in_sentence": "Veerpal Singh w)!O are both also the petitioners.", "canonical_name": "V eerpal Singh"}}, {"text": "Uttar Pradesh State Government", "label": "ORG", "start_char": 4411, "end_char": 4441, "source": "ner", "metadata": {"in_sentence": "the Uttar Pradesh State Government dated 26 June, 1971 passed under section 34 of the Act nominating two-thirds of the total number of members of the committee of management of the Federation."}}, {"text": "26 June, 1971", "label": "DATE", "start_char": 4448, "end_char": 4461, "source": "ner", "metadata": {"in_sentence": "the Uttar Pradesh State Government dated 26 June, 1971 passed under section 34 of the Act nominating two-thirds of the total number of members of the committee of management of the Federation."}}, {"text": "section 34", "label": "PROVISION", "start_char": 4475, "end_char": 4485, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 4724, "end_char": 4734, "source": "regex", "metadata": {"statute": null}}, {"text": "30th March 1970", "label": "DATE", "start_char": 4911, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "The annual general meeting of the Federation was held on 30th March 1970."}}, {"text": "8 April 1970", "label": "DATE", "start_char": 5070, "end_char": 5082, "source": "ner", "metadata": {"in_sentence": "The appellant c petitioner Veerpal Singh on 8 April 1970 was unanimously elected as Chairman of the Federation."}}, {"text": "September, 1970", "label": "DATE", "start_char": 5145, "end_char": 5160, "source": "ner", "metadata": {"in_sentence": "On 19 September, 1970 the State Government passed an order under section 34 of the Act and nominated two-thirds of the members of the committee of management of the Federation."}}, {"text": "section 34", "label": "PROVISION", "start_char": 5204, "end_char": 5214, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 5349, "end_char": 5359, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahablad High Court", "label": "COURT", "start_char": 5803, "end_char": 5824, "source": "ner", "metadata": {"in_sentence": "ll:\n\nThe Federation moved the Allahablad High Court against the said order of."}}, {"text": "8 December, 1970", "label": "DATE", "start_char": 6056, "end_char": 6072, "source": "ner", "metadata": {"in_sentence": "The High CoUtt dismissed the petition of the Federation on 8 December, 1970."}}, {"text": "18 December, 1970", "label": "DATE", "start_char": 6077, "end_char": 6094, "source": "ner", "metadata": {"in_sentence": "On 18 December, 1970 the State Government cancelled the order dated 19 Septem- 1 ber, 1970."}}, {"text": "19 Septem- 1 ber, 1970", "label": "DATE", "start_char": 6142, "end_char": 6164, "source": "ner", "metadata": {"in_sentence": "On 18 December, 1970 the State Government cancelled the order dated 19 Septem- 1 ber, 1970."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 6217, "end_char": 6230, "source": "ner", "metadata": {"in_sentence": "The Additional Registrar, Co-operative Societies, Uttar Pradesh submitted an inspection report to the effect that the State Govtrnment had been misi)Jformed about the share capital of the Slate Government in the Federation."}}, {"text": "12 June, 1971", "label": "DATE", "start_char": 6680, "end_char": 6693, "source": "ner", "metadata": {"in_sentence": "The appellallt petitioner Veerpal Singh wrote a letter on 12 June, 1971 to the Chief Minister of Uttar Pradesh and asked for immediate acition pursuant to the report of the Additional Registrar ot Co-operative Societies."}}, {"text": "V eerpal Singh", "label": "PETITIONER", "start_char": 6858, "end_char": 6872, "source": "ner", "metadata": {"in_sentence": "In that letter V eerpal Singh stated that Om Prakash Tyap, DOputy Registrar, Co-cperative Societies had\n\nF ..\n\nU.P. CO-OPERATWE FEDERATION V. U.P. STATE (Ray,].)", "canonical_name": "V eerpal Singh"}}, {"text": "Om Prakash Tyap", "label": "OTHER_PERSON", "start_char": 6885, "end_char": 6900, "source": "ner", "metadata": {"in_sentence": "In that letter V eerpal Singh stated that Om Prakash Tyap, DOputy Registrar, Co-cperative Societies had\n\nF ..\n\nU.P. CO-OPERATWE FEDERATION V. U.P. STATE (Ray,].)", "canonical_name": "Om Prakash Tyagi"}}, {"text": "Veerpal\n\nSingh", "label": "PETITIONER", "start_char": 7066, "end_char": 7080, "source": "ner", "metadata": {"in_sentence": "Veerpal\n\nSingh also !", "canonical_name": "V eerpal Singh"}}, {"text": "Om Prakash Tyagi", "label": "OTHER_PERSON", "start_char": 7178, "end_char": 7194, "source": "ner", "metadata": {"in_sentence": "lated in the letter that on being elected Chairman he examined the accounts and found that Om Prakash Tyagi had been responsible for mal-practices.", "canonical_name": "Om Prakash Tyagi"}}, {"text": "section 34", "label": "PROVISION", "start_char": 7305, "end_char": 7315, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 7878, "end_char": 7898, "source": "ner", "metadata": {"in_sentence": "In the Allahabad High Court the appellants challenged the first order of the State Government dated 19 September, 1970 on inter alia the ground thait the share holding of the State Government on facts and in law was not 60% and therefore the State\n\nGovernment was not competent to pass an order under section 34 of the Act."}}, {"text": "19 September, 1970", "label": "DATE", "start_char": 7971, "end_char": 7989, "source": "ner", "metadata": {"in_sentence": "In the Allahabad High Court the appellants challenged the first order of the State Government dated 19 September, 1970 on inter alia the ground thait the share holding of the State Government on facts and in law was not 60% and therefore the State\n\nGovernment was not competent to pass an order under section 34 of the Act."}}, {"text": "section 34", "label": "PROVISION", "start_char": 8172, "end_char": 8182, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n34", "label": "PROVISION", "start_char": 8766, "end_char": 8777, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8910, "end_char": 8920, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 9095, "end_char": 9105, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 9116, "end_char": 9126, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "30 June, 1969", "label": "DATE", "start_char": 9740, "end_char": 9753, "source": "ner", "metadata": {"in_sentence": "on the first three c0ntent1ons because in our OPinion the fourth contentiou 111cceeds:\n\nThe subscribed and paid up share capital of the federation on 30 June, 1969 was Rs."}}, {"text": "District Co-operative Federation, Saharanpur", "label": "ORG", "start_char": 10429, "end_char": 10473, "source": "ner", "metadata": {"in_sentence": "The further Government case is that in the first week of September, 1970 the District Co-operative Federation, Saharanpur retired Rs."}}, {"text": "section 34", "label": "PROVISION", "start_char": 10962, "end_char": 10972, "source": "regex", "metadata": {"statute": null}}, {"text": "Saharanpur Federation", "label": "ORG", "start_char": 11883, "end_char": 11904, "source": "ner", "metadata": {"in_sentence": "50,000 be- 1onging to the Saharanpur Federation."}}, {"text": "District Co-operative H Federation, Saharanpur", "label": "ORG", "start_char": 12376, "end_char": 12422, "source": "ner", "metadata": {"in_sentence": "50,000 out of share capital held by the District Co-operative H Federation, Saharanpur in .the share capital of the Federation had been retired with the resuk of reduction of the share capital of\n\nthe Federation."}}, {"text": "section 34", "label": "PROVISION", "start_char": 12558, "end_char": 12568, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 12856, "end_char": 12866, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 13100, "end_char": 13110, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 13123, "end_char": 13133, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 13294, "end_char": 13304, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 13656, "end_char": 13666, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 13818, "end_char": 13828, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad", "label": "GPE", "start_char": 13995, "end_char": 14004, "source": "ner", "metadata": {"in_sentence": "In view of the fact that the first order of the State Government dated 19 September, 1970 which was challenged in the Allahabad High Court was cancelled by the State Government ii!"}}, {"text": "30 June, 1970", "label": "DATE", "start_char": 14604, "end_char": 14617, "source": "ner", "metadata": {"in_sentence": "On 30 June, 1970 it is said that Rs."}}, {"text": "Section 17", "label": "PROVISION", "start_char": 15541, "end_char": 15551, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 16059, "end_char": 16069, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 16142, "end_char": 16152, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 16218, "end_char": 16228, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar Pradesh Co-operative Societies Rules, 1968", "label": "STATUTE", "start_char": 16333, "end_char": 16381, "source": "regex", "metadata": {}}, {"text": "section 23", "label": "PROVISION", "start_char": 17804, "end_char": 17814, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VI ot the Rules", "label": "STATUTE", "start_char": 17886, "end_char": 17909, "source": "regex", "metadata": {}}, {"text": "Saharanpur District Co-operative Federation", "label": "ORG", "start_char": 19026, "end_char": 19069, "source": "ner", "metadata": {"in_sentence": "50,000 belonging to the Saharanpur District Co-operative Federation were retired with the result that there was reduction of total share capital by a sum of."}}, {"text": "section 23", "label": "PROVISION", "start_char": 19269, "end_char": 19279, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Co-operative Society", "label": "ORG", "start_char": 19687, "end_char": 19715, "source": "ner", "metadata": {"in_sentence": "Again under Rule 70 a Central Co-operative Society may reduce the share capital according to a scheme approved by the Registrar."}}, {"text": "Saharanpur District Co-opera1tive Federation", "label": "ORG", "start_char": 20083, "end_char": 20127, "source": "ner", "metadata": {"in_sentence": "The Saharanpur District Co-opera1tive Federation never ceased to be a member."}}, {"text": "District Co-operative Federation, Saharanpu'r", "label": "ORG", "start_char": 21986, "end_char": 22031, "source": "ner", "metadata": {"in_sentence": "50,000 belonging to the District Co-operative Federation, Saharanpu'r were taken off the share capital of the Federation."}}, {"text": "section 34", "label": "PROVISION", "start_char": 22166, "end_char": 22176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 22758, "end_char": 22768, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_411_417_EN", "year": 1973, "text": "KAILASH RAl v.\n\nJAi JAi R.AM & OTHERS\n\nJanuary 22, 1973\n\n(I. D. DUA AND C. A. VAIDIAL!NGAM, JJ.]\n\n4 11\n\n!J.P. Zamindari A.bolitio11 and Land Reforms A.ct, 1950, s. 18(1)- (a)-'PosseS<ion', 'held', 'deemed to be held', meaning of.\n\nThe appellant filed a suit against the respondents for his share in certain property and the decree in the suit recognised his right as a cosharer along with the respondents. After the\n\nU. P.\n\nZamindari Abolition and Land Reforms Act, 1950, came 'into force the appellant filed a suit for division of the holdings on the ground that all the plots were joint bhumidhari and that his share should be separated.\n\nThe resJ><1Ddents contested the claim on the ground that they alone had bhumidbari rights in the properti.S. The trial court dismissed the suit.\n\nThe first appellate court upheld the appellant's claim under s.18(1) (a) of the Act and decreed the suit. In second appeal, the High Court called for a finding from the first appellate court and the first. appellate court submitted its finding that the respondents were in exclusive possession of the khudkasht and sir plots in dispute. Accepthng the finding, the High Court allowed the appeal and dismissed the suit.\n\nAllowing the appeal to this Court, HELD: (I) Under s. lS(l)(a) all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or en intermediary's grove on 30th June, 1952, shall he deemed to be settled by the State Gove\\tmnent with such intermediary. Tho said intermediary is entitled to take or retain possession as bhumidhar.\n\nIn order to claim the rights under the clause it is necessary th1lt the lands should be (a) in possessi'on of an intermediary as K.hudkasht or sir, or (b) held by an intermediary as khudkasht or sir, or (c) deemed to be held by an intermediary as Khuclkasht or sir. Khudkasht means land other than sir cultivated by a Iandlprd either by himself or by servants or by hired labour. [4150-f]\n\n(2) In law, the possession of one co-sharer is possession botb on his behalf as well as on behalf of all the other oosharers, unless ouster is pleaded and established. In this case, the finding is that the respondents had not raised the plea of ouster, and there is IJlO indication in the Act or the U.P. Tenancy Act, 1939, that bhumidhari rights are not intended to be conferred on all the co-•harers or co-proprietors who are entitled to the prorties, though only some of them may be in actual cultivation. [416A-C]\n\n( 3) Even when one cc>-sharer is in possession of the land the other co-s}Jarers must be considered to b.e in CQMtructive possession of the land. The expression 'possession' in s.18(1)(a) takes in not only actual physical possession but also constructive possession that a person has in law.\n\n[416CE]\n\n(4) Section lS(l)(a) takes in two other contingencies, namely, lands held as khudkasbt or lands deemed to be beld as khudkasht. Enn assuming that in view of the finding submitted by the first appellate court that the respondents were in possession, and on that basis, the appellant could not be considered to be also in possession nevertheleSI tho lands and could be considered to be held or deemed to be held by th~ appellant also. If the expression 'held' occurring in\n\ncl. (a) means 11-4.796Sup.C.l./73\n\nactual possession then the same mcairring must be given to the same word occurring in (b) also. But, in the latter part of cl. (b) the Legislature has used the exprcssiun 'personal cultivation' with reference to Avadh, whereas it has not used any such cxprenion in the first part of cl. (b). Therefore, the expression 'held' must have a meaning different from' pcrsoinat cultivation;' and can only taken to .connote the existence of a right or title in a person~ and the appellant's right and title as holder of the lands had already been declared. It can also b.e held that the lands can be considered to be 'deemed to be held'. by the appellant.\n\nThe expression 'deemed to be held' has been used by the Legislature to treat persons like the appellaint bhumldhars by creating a fiction. [417A-DJ\n\nBudhan Singh & A\"' v. Nabi Bux & f!nr., [1970] 2 S.C.R. 10 followed.\n\nRania Kant Singh and others v. Deputy Director of Consolidation and others, A. I. R. 1966 All. 172 over ruled.\n\n(5) It was not necessary for the appellant to file an appeal against the order of the High Court calling for a. finding from the first appellate court. That order was passed at an intermediary stage and the appellant was justified In waiting for the final decision of the High Court.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1229 of 1967.\n\nAppeal by a special leave from the judgment and order dated September 19, 1966 of the Allahabad High Court in Second Appeal No. 397 of 1966.\n\nI. P. Goyal and G. S. Chatter; ee, for llhe appellant.\n\nS. K. Bagga, S. Bagga and M. Veerappa, for respondent No. 3.\n\nThe Judgment of the Court was delivered by.\n\nVAIDIALINOAM, J. The question that arises for consideration in this appeal, by special leave, relates to the proper interpretation to be placed on section 18, sub-section 1, clause (a) of the U.P.\n\nZamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as the Abolition Act.\n\nIn order to appreciate the claim of the plaintiff based upon the proVision quoted above, it is necessary to set out the pedigree which is as follows :-\n\nI Ram Prasad\n\nChirlut\n\nI Gan pat\n\n(Dofd1sR'5pl)\n\nBaijnath\n\n. I B1shnudat\n\nI Balkaran\n\nRamldhare\n\n- Mst. Pharamdei\n\nM I . st. R1mrat1\n\nKaiJJah rPlfrApplt.)\n\nI Hanuman\n\nChulai -Msr. Retraji\n\nI Manudat\n\nC I . ann\n\nI I Patesharl Ja1ja Ran1 (Defdts-Re•Pdts )\n\nIt will be noted from the above pedigree that the plaintiff in the son of Ms. Ramrati and the grandson of Ram Adhare. After the death of Ram Adhare, the defendents-respondents got their names rocorded over the properties on the allegation that Ram Adhare was a member of a joint family with them. Mst. Ramrati, mother of the appellant, filed suit No. 918 of 1945 in the court of Civil Judge for a declaration that she was entitled to the prope1; ty inherited from her father, Ram Adharc.\n\nRelief for possession of the properties was also claimed.\n\nAs she died during the pendency of the suit, the appellant before us, Kailash Rai, got himself substituted as heirson of Ramrati. On May 16, 194 7, the Additional Civil Judge decreed the appellant's claim. On June 13, 1947, the plaintiff obtained dakhaldahani through court. The respondents, who are defendants in the said suit, filed an appeal in the High Court which was dismissed on March 18, 1952.\n\nOn July l, 1952, the Abolition Act came into force.\n\nThe appellant filed suit No. 1132 of 1953 in the court of the Munsif.\n\nGorakhpur for the division of the holdings on the ground that all the plots were joint bhumidhari and that his one-fourth share should be separated. The defendants contested the claim on the ground that they alone have got bhumidhari rights in the pro- -perties and the plaintiff has no right, title or interest. The learned\n\nMunsif accepting the defence dismissed the suit.\n\nOn appeal by Kailash Rai, the learned District Judge of Gorakhpur upheld his claim under section 18(1) (a) and decreed his suit, thus reversing the judgment of the trial court. The defendants carried the matter in Second Appeal No. 397 of 1956 to the Allahbad High Court.\n\nIn the first instance, the High Court by its order dated July 27, 1965, called for a finding from the District Court on the following question:- ''Whether the defendant-appellant were in exclusive possession of the khudkasht and sir plots in dispute and if so, since when ?\"\n\nThe District Court submitted i•q finding to the effect that the defendants were in exclusive possession of the khudkasht and sir\n\nplot~ in dispute since 1947. The High Court accepted the finding; and by its judgment and order dated September 19, 1966, allowed the defendants' appeal and dismissed the plaintiff's suit on the ground that he was not in cultivatory possession of the plots in dispute.\n\nThis appeal is against the said judgment of the High Court.\n\nThe contention of Mr. J. P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admittedly co-sharers and the appellant's right, title and interest have been declared in suit No. 918 of 1945, the possession by the defendants, who are some of the co-sharers, is, in the eye of law, possession for and on behalf of the appellant also. If so, the appellant is a person, who is in possession of the lands as khudkasht. In any event, the Jands must be considered to be held or deemed to be held' by the appellant as khudkasht so as to attract section 18 ( 1 ) -\n\n(a) of the Abolition Act. His further contention is that suit No. 1132 of 1953 out of which these proceedings arise, is really a suit under section 176 of the Abolition Act for partition of the bhumidhari rights 1as between the co-sharers.\n\nMr. S. K. Bagga, learned counsel for the defendants, urged that the appellant should have really filed an appeal against the order of the High Court dated July 27, 1965, in and by which .it called for a finding regarding the possession of the properties. Not hav·\n\ning challenged that order, the counsel ursed, it is longer open to the appellant to challenge the final order of the High Court accepting the finding submitted by the District Court. The counsel further contended that the decision of the High Court is in accordance with the view held in a previous decision reported in Rama Kant Singh and others v. Deputy Director of Consolidation and\n\nothers('). When Uie defendants have been found to be in cultivatory possession of the. properties, the view of the High Court negativing the appellant\"s claim is, according to Mr. Bagga, fully justified.\n\nThis will be the convenient stage to. refer to the material provisions of the Abolition Act. Section 3 defines the various expressions. In clause 26, it is provided that certain other eitpressions\n\nreferred to therein, including khudkasht and sir, shall have the meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Tenancy Act). Section 3(9) of the Tenancy Act defines khudkasht as \"land other than sir culti- •akd by a landlard, and under-proprietor or a permanent tenureholder as 1>UCh either himself or by servants or by hired labour\".\n\nSir is defined in section 6 occurring in chapter II of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates from a date to be specified by notification. Section 18 ( 1) of the Abolition Act, which is relevant for our purpose, runs as follows:-\n\n\"18. Settlement of certain lands with intermediaries or cultivators as bhumidhars-(1) $Ubject to the provisions of sections 10, 15, 16 and 17, all lands-\n\n(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove,\n\n(b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, -~~~~~~--:\n\n(!) A.I.R. 1966 All. 173\n\nKAlLASH RA! v. JAi RAM (Vaidialing(lnl, l.) 415\n\n( c) held by a fixed-rate tenant or a rentfree grantee as such, or ( d) held as such by-\n\n(; J an occupany tenant, 1 Possessing the right to QU a hereditary tenant, . . l transfer the holding bi tin) atenantonJ'attadawam1 or1stam f sale. rarireferrc toinsection 17.\n\n( e) held by a grove-holder,\n\n, on the date immediately preceding t!ie date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or groveholder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof.\"\n\n• • * • * ,._\n\nThere is no controversy that the date of vesting is 1-7-1952 and the date immediately preceding the date of vesting is 30-6--\n\n1952. Under section 18(l)(a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30-6-\n\n1952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subjei:t to the provisions of the Abolition Act. In order to claim rights under clause (a), it is nece!isary that the lands should be (1 ) in possession of an intermediary as khudkanst or sir or ( 2) held by an intermediary as khudkasht or sir or ( 3) deemed to be held by an intermediary as :l::hudkasht or sir. If any one of these alternatives is established, clause (a J, will stand attracted. Khudkasht, as We have already pointed out, means land, other than sir cultivated a landlord 'either by himself or by servants or by hired Jabour.\n\nThe question is whether the appellant can be considered to be in \"possession\" of the lands as khudkasht or whether it can be considered that the lands are \"held or deemed to be held by him\" as khudkasht. The finding sent by the District Court is no doubt prima-facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High ourt, as possession is with the defendants, the plaintiff-appellant cannot get any relief.\n\nIt should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster. This finding, so far as we would see, has not been disturbed by the High Court. The decree in suit No. 918 of 1045 clearly\n\nSUPREME COURT REPORTS (1973] 3 s.c.It.\n\nrecognises the right of the appellant as a co-sharer along with the defendants. In law the possession of one co-sharer is posession both on his behalf as well as on behalf of all the other co-sharers.. unless ouster is pleaded and established. In this case, as pointed! out by us earlier, the finding is that the defendants have not raised'. the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very we!l visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone\n\ni~ entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights ? In our opinion. the normal principal that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression 'possession' in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of t11e lands and when no plea of ouster had been raised or established, such posses&on is also on behalf of the plaintiff-appellant. Under such c$'c11m.stances, the lands can be considered to be the possession of the appellant or, at any rate, in his constructive possession.\n\nClause (a), as we have pointed out, takes in two other contigencies also, namely, lands held as khudkasht or lands deemed to be held as khndkasht. Evea assuming that, in view of the finding of the District Court, the defendants are in possession and on that\n\n'basis the plaintiff cannot be considered to be also in possession, nevertheless, tlie lands in question can be considered to be held or deemed to be held by the appellant also. The expression 'held' occurs in section 9 of ilie Abolition Act. In interpreting the said expression, this court in Budhan Singh & Anr. v. Nabi \"Bux & A nr. (1 ) has held tliat it means 'lawfully held'.\n\nThis court has further observed that- ·\n\n\"According to Webster's New Twentieth Century l[)ictionary tl!e word 'held' is technically understood to mean to possess by lep; al title. Therefore by interpreting the word 'held' as 'lawfully held' tliere was no addition of any word to tlie section. According to tlie words of s. 9 and in tl!e context of ilie scheme of the Act it is proocr to construe tl!e word 'held' in the section as !lawfully held'.\"\n\n\nMr. Bagga, however, contended that the expression 'held' in clause (a) denotes actual possession. As the fincling on that point is against. the appellant, the lands cannot be considered to be 'held' by him. We are not inclined to accept this contention. In clause ( b) occurs tho words 'held' as a grow by'. If the expression 'held' occuring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of clause (b), the leplature has used the expression 'personal cultivation' with reference to A vadh, whereas it has not used any such expression in tho first part of clause (b). Therefore, the expression 'held' must have a meaning different from personal cultivation. In our opinion, the expression 'held' can only be taken to connote the existence of a right or title in a person. The appellant's right and title as holder of tlie lands has been declared and settled in suit No. 918 of 1945.\n\nIt can also be held that the lands can be considered to be 'deemed to be held' by the appellant. The expression 'deemed to be beid' has been used by the legislature to treat persons like tho appellant bhumidhars by creating a fiction.\n\nWe cannot accept the contention of Mr. Bagga that tho appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellants court. That order was passed at an intermediary stage and the. appellant was justified in waiting for the final decision of the High Court to be i:iven. It is now necessary to consider tho decision of the Allahabad High CoUrt in Rama Kant Singh and other.s v. Deputy Director of Consolidation and others(') following which the present decision under appeal has been rendered. It is no doubt true that the aid decision does support the respondents in the sense that it holds that only that co-proprietor who is in cultivatory possession, becomes\n\nk.hudkasht holder and that possession over proprietary rights by il.!elf does not confer khudkasht flolder's rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which\n\nalone will attract clause (a) of section 18(1). There is no .:onsidcration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the said decision.\n\nIn the result, the judgment and order of the High Court under appeal are st as!d? and the decision of . the District Judge, Gorakhpur, m Civil Appeal No. 494 of 1955 will stand restored.\n\nThere will be no order as to c_osts in this appeal.\n\nV.P.S.\n\n(I) A.l.R. 1966 All. 172.", "total_entities": 62, "entities": [{"text": "KAILASH RAl", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "KAILASH RAl", "offset_not_found": false}}, {"text": "JAi JAi R.AM & OTHERS", "label": "RESPONDENT", "start_char": 16, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "JAI JAI RAM & OTHERS", "offset_not_found": false}}, {"text": "January 22, 1973", "label": "DATE", "start_char": 39, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "KAILASH RAl v.\n\nJAi JAi R.AM & OTHERS\n\nJanuary 22, 1973\n\n(I. D. DUA AND C. A. VAIDIAL!NGAM, JJ.]"}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 58, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 18(1)", "label": "PROVISION", "start_char": 161, "end_char": 169, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 424, "end_char": 470, "source": "regex", "metadata": {}}, {"text": "s.18(1)", "label": "PROVISION", "start_char": 848, "end_char": 855, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "30th June, 1952", "label": "DATE", "start_char": 1394, "end_char": 1409, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal to this Court, HELD: (I) Under s. lS(l)(a) all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or en intermediary's grove on 30th June, 1952, shall he deemed to be settled by the State Gove\\tmnent with such intermediary."}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 2263, "end_char": 2280, "source": "regex", "metadata": {}}, {"text": "s.18(1)(a)", "label": "PROVISION", "start_char": 2654, "end_char": 2664, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Avadh", "label": "GPE", "start_char": 3498, "end_char": 3503, "source": "ner", "metadata": {"in_sentence": "b) the Legislature has used the exprcssiun 'personal cultivation' with reference to Avadh, whereas it has not used any such cxprenion in the first part of cl. ("}}, {"text": "[1970] 2 S.C.R. 10", "label": "CASE_CITATION", "start_char": 4124, "end_char": 4142, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4700, "end_char": 4720, "source": "ner", "metadata": {"in_sentence": "Appeal by a special leave from the judgment and order dated September 19, 1966 of the Allahabad High Court in Second Appeal No."}}, {"text": "I. P. Goyal", "label": "PETITIONER", "start_char": 4756, "end_char": 4767, "source": "ner", "metadata": {"in_sentence": "I. P. Goyal and G. S. Chatter; ee, for llhe appellant.", "canonical_name": "I. P. Goyal"}}, {"text": "G. S. Chatter", "label": "OTHER_PERSON", "start_char": 4772, "end_char": 4785, "source": "ner", "metadata": {"in_sentence": "I. P. Goyal and G. S. Chatter; ee, for llhe appellant."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 4812, "end_char": 4823, "source": "ner", "metadata": {"in_sentence": "S. K. Bagga, S. Bagga and M. Veerappa, for respondent No.", "canonical_name": "S. K. Bagga"}}, {"text": "S. Bagga", "label": "LAWYER", "start_char": 4825, "end_char": 4833, "source": "ner", "metadata": {"in_sentence": "S. K. Bagga, S. Bagga and M. Veerappa, for respondent No.", "canonical_name": "S. K. Bagga"}}, {"text": "M. Veerappa", "label": "OTHER_PERSON", "start_char": 4838, "end_char": 4849, "source": "ner", "metadata": {"in_sentence": "S. K. Bagga, S. Bagga and M. Veerappa, for respondent No."}}, {"text": "VAIDIALINOAM", "label": "JUDGE", "start_char": 4919, "end_char": 4931, "source": "ner", "metadata": {"in_sentence": "VAIDIALINOAM, J. The question that arises for consideration in this appeal, by special leave, relates to the proper interpretation to be placed on section 18, sub-section 1, clause (a) of the U.P.\n\nZamindari Abolition and Land Reforms Act, 1950 (U.P. Act No."}}, {"text": "section 18", "label": "PROVISION", "start_char": 5066, "end_char": 5076, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 5082, "end_char": 5091, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 5117, "end_char": 5163, "source": "regex", "metadata": {}}, {"text": "Ram Prasad\n\nChirlut", "label": "PETITIONER", "start_char": 5391, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "In order to appreciate the claim of the plaintiff based upon the proVision quoted above, it is necessary to set out the pedigree which is as follows :-\n\nI Ram Prasad\n\nChirlut\n\nI Gan pat\n\n(Dofd1sR'5pl)\n\nBaijnath\n\n."}}, {"text": "Hanuman\n\nChulai", "label": "RESPONDENT", "start_char": 5547, "end_char": 5562, "source": "ner", "metadata": {"in_sentence": "I Hanuman\n\nChulai -Msr."}}, {"text": "Ramrati", "label": "OTHER_PERSON", "start_char": 5946, "end_char": 5953, "source": "ner", "metadata": {"in_sentence": "Ramrati, mother of the appellant, filed suit No."}}, {"text": "Ram Adharc", "label": "OTHER_PERSON", "start_char": 6120, "end_char": 6130, "source": "ner", "metadata": {"in_sentence": "918 of 1945 in the court of Civil Judge for a declaration that she was entitled to the prope1; ty inherited from her father, Ram Adharc."}}, {"text": "Kailash Rai", "label": "PETITIONER", "start_char": 6262, "end_char": 6273, "source": "ner", "metadata": {"in_sentence": "As she died during the pendency of the suit, the appellant before us, Kailash Rai, got himself substituted as heirson of Ramrati.", "canonical_name": "KAILASH RAl"}}, {"text": "May 16, 194 7", "label": "DATE", "start_char": 6325, "end_char": 6338, "source": "ner", "metadata": {"in_sentence": "On May 16, 194 7, the Additional Civil Judge decreed the appellant's claim."}}, {"text": "June 13, 1947", "label": "DATE", "start_char": 6401, "end_char": 6414, "source": "ner", "metadata": {"in_sentence": "On June 13, 1947, the plaintiff obtained dakhaldahani through court."}}, {"text": "March 18, 1952", "label": "DATE", "start_char": 6578, "end_char": 6592, "source": "ner", "metadata": {"in_sentence": "The respondents, who are defendants in the said suit, filed an appeal in the High Court which was dismissed on March 18, 1952."}}, {"text": "July l, 1952", "label": "DATE", "start_char": 6598, "end_char": 6610, "source": "ner", "metadata": {"in_sentence": "On July l, 1952, the Abolition Act came into force."}}, {"text": "Kailash Rai", "label": "JUDGE", "start_char": 7108, "end_char": 7119, "source": "ner", "metadata": {"in_sentence": "On appeal by Kailash Rai, the learned District Judge of Gorakhpur upheld his claim under section 18(1) (a) and decreed his suit, thus reversing the judgment of the trial court.", "canonical_name": "KAILASH RAl"}}, {"text": "District Judge of Gorakhpur", "label": "COURT", "start_char": 7133, "end_char": 7160, "source": "ner", "metadata": {"in_sentence": "On appeal by Kailash Rai, the learned District Judge of Gorakhpur upheld his claim under section 18(1) (a) and decreed his suit, thus reversing the judgment of the trial court."}}, {"text": "section 18(1)", "label": "PROVISION", "start_char": 7184, "end_char": 7197, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahbad High Court", "label": "COURT", "start_char": 7346, "end_char": 7365, "source": "ner", "metadata": {"in_sentence": "397 of 1956 to the Allahbad High Court."}}, {"text": "July 27, 1965", "label": "DATE", "start_char": 7425, "end_char": 7438, "source": "ner", "metadata": {"in_sentence": "In the first instance, the High Court by its order dated July 27, 1965, called for a finding from the District Court on the following question:- ''Whether the defendant-appellant were in exclusive possession of the khudkasht and sir plots in dispute and if so, since when ?\""}}, {"text": "September 19, 1966", "label": "DATE", "start_char": 7876, "end_char": 7894, "source": "ner", "metadata": {"in_sentence": "The High Court accepted the finding; and by its judgment and order dated September 19, 1966, allowed the defendants' appeal and dismissed the plaintiff's suit on the ground that he was not in cultivatory possession of the plots in dispute."}}, {"text": "J. P. Goyal", "label": "PETITIONER", "start_char": 8127, "end_char": 8138, "source": "ner", "metadata": {"in_sentence": "The contention of Mr. J. P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admittedly co-sharers and the appellant's right, title and interest have been declared in suit No.", "canonical_name": "I. P. Goyal"}}, {"text": "section 18", "label": "PROVISION", "start_char": 8682, "end_char": 8692, "source": "regex", "metadata": {"statute": null}}, {"text": "section 176", "label": "PROVISION", "start_char": 8842, "end_char": 8853, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 8947, "end_char": 8958, "source": "ner", "metadata": {"in_sentence": "Mr. S. K. Bagga, learned counsel for the defendants, urged that the appellant should have really filed an appeal against the order of the High Court dated July 27, 1965, in and by which .it called for a finding regarding the possession of the properties.", "canonical_name": "S. K. Bagga"}}, {"text": "Bagga", "label": "OTHER_PERSON", "start_char": 9776, "end_char": 9781, "source": "ner", "metadata": {"in_sentence": "properties, the view of the High Court negativing the appellant\"s claim is, according to Mr. Bagga, fully justified."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9894, "end_char": 9903, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 26", "label": "PROVISION", "start_char": 9940, "end_char": 9949, "source": "regex", "metadata": {"statute": null}}, {"text": "United Provinces Tenancy Act, 1939", "label": "STATUTE", "start_char": 10096, "end_char": 10130, "source": "regex", "metadata": {}}, {"text": "Section 3(9)", "label": "PROVISION", "start_char": 10177, "end_char": 10189, "source": "regex", "metadata": {"linked_statute_text": "the United Provinces Tenancy Act, 1939", "statute": "the United Provinces Tenancy Act, 1939"}}, {"text": "section 6", "label": "PROVISION", "start_char": 10406, "end_char": 10415, "source": "regex", "metadata": {"linked_statute_text": "the United Provinces Tenancy Act, 1939", "statute": "the United Provinces Tenancy Act, 1939"}}, {"text": "II of the Tenancy Act", "label": "STATUTE", "start_char": 10437, "end_char": 10458, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 10460, "end_char": 10469, "source": "regex", "metadata": {"linked_statute_text": "II of the Tenancy Act", "statute": "II of the Tenancy Act"}}, {"text": "Section 18", "label": "PROVISION", "start_char": 10568, "end_char": 10578, "source": "regex", "metadata": {"linked_statute_text": "II of the Tenancy Act", "statute": "II of the Tenancy Act"}}, {"text": "sections 10, 15, 16 and 17", "label": "PROVISION", "start_char": 10775, "end_char": 10801, "source": "regex", "metadata": {"linked_statute_text": "II of the Tenancy Act", "statute": "II of the Tenancy Act"}}, {"text": "section 17", "label": "PROVISION", "start_char": 11359, "end_char": 11369, "source": "regex", "metadata": {"linked_statute_text": "II of the Tenancy Act", "statute": "II of the Tenancy Act"}}, {"text": "section 18(l)(a)", "label": "PROVISION", "start_char": 11866, "end_char": 11882, "source": "regex", "metadata": {"statute": null}}, {"text": "30-6-\n\n1952", "label": "DATE", "start_char": 12044, "end_char": 12055, "source": "ner", "metadata": {"in_sentence": "Under section 18(l)(a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30-6-\n\n1952, shall be deemed to be settled by the State Government with such intermediary."}}, {"text": "SUPREME COURT REPORTS (1973] 3 s.c", "label": "COURT", "start_char": 13616, "end_char": 13650, "source": "ner", "metadata": {"in_sentence": "918 of 1045 clearly\n\nSUPREME COURT REPORTS (1973] 3 s.c."}}, {"text": "is no indication in the Abolition Act or the Tenancy Act", "label": "STATUTE", "start_char": 14024, "end_char": 14080, "source": "regex", "metadata": {}}, {"text": "30-6-1952", "label": "DATE", "start_char": 14497, "end_char": 14506, "source": "ner", "metadata": {"in_sentence": "Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone\n\ni~ entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights ?"}}, {"text": "section 9", "label": "PROVISION", "start_char": 15850, "end_char": 15859, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16342, "end_char": 16346, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High CoUrt", "label": "COURT", "start_char": 18101, "end_char": 18121, "source": "ner", "metadata": {"in_sentence": "It is now necessary to consider tho decision of the Allahabad High CoUrt in Rama Kant Singh and other.s v. Deputy Director of Consolidation and others(') following which the present decision under appeal has been rendered."}}, {"text": "section 18(1)", "label": "PROVISION", "start_char": 18678, "end_char": 18691, "source": "regex", "metadata": {"statute": null}}, {"text": "District Judge, Gorakhpur", "label": "COURT", "start_char": 18984, "end_char": 19009, "source": "ner", "metadata": {"in_sentence": "the District Judge, Gorakhpur, m Civil Appeal No."}}]}
{"document_id": "1973_3_418_423_EN", "year": 1973, "text": "VBERPAL SINGH v.\n\nREGISTRAR, COOPERATIVE SOCIETIES, U.P. & ORS.\n\nJanuary 22, 1973\n\n[S. M. S!KRI, C. J., A. N. RAY, D. G. PALEK.AR, M. H. BEG AND\n\nS. N. DWIVEDI, JJ.] Cooperative Societies Act s. JS-Registrar's powers in regard to suspension of President and Committees of management of Cooperative Society and appointment of administration-Conditions for exercise of power undo s. 35(2).\n\nThe Deputy Registrar Cooperative Societies, Meerut, by order dated 14 July, 1971 suspended the President and the Commit~ of manage ment of Jahangirabad Cooperative Marketing Society Ltd., and further appo'JIQ!ed an administrator to carry on the functions of. the society.\n\nA writ petition was filed by Y and others in the High Court of Allahabad under Art. 226 of the Constitution challenging the aforesaid order of the Deputy Registrar. The petition was dismissed, whereupon an appeel was filed in this Court by special leave. V, who was the President of the J ahangirabad Cooperative Marketing Society also filed a writ petition ilJl this Court challenging the Deputy Registrar's order dated 14 July, 1971. The questions that fell for consideration in the appeal and writ petition were : ( 1) wbJlther the Deputy Registrar's order suspending the President and committee of management of the Society was valid;\n\n(ii) whether the Deputy Registrar could temporarily appoint an administrator.\n\nHELD : (i) The provisiOlllS in s. 35 (I) of the Cooperative Societies Act, 1965 indicate the circumstances under which the Registrar has power to supersede or suspend the committee of managenient and to appoint an administrator. Section 35(2) of the Act confer~ power on the Registrar to suspend the committee of management duri:ng the period of proceedings for supersession. The Registrar has also power under section 35(2) of the Act to make arrangement as he thinks proper for the management of the society till the proceedings are completed. The power to suspend the committee of managememt during the period Of proceedings is exefcisable when proceedin~ for supersession have commenced. Section 35(1) of the Act shows that when the Registrar is of opinion that the committee of a Cooperative Society makes default or is negligent in the performance of duties or is otherwise •ot functioning properly the Registrar may supersede the committee ot management and has to give an opportunity to the society to be ard in that behalf. The Registrar bas also to obtain the opinion of the general body of the society. Therefore the opinion of the Registrar is to be followed by some definite act which will <'ommence the proceedings for supersess1QD.\n\nThe provisions in the Act indicate that\n\nsom~ definite step like the issue of notice must be taken under the provisions of section 35(!) of the Act with a view to show that proceedings for supersesSion of the committee are set in motion. [422A-EJ It is therefore manifest that power exercisable under s. 35(2) ot the Act is confined to the time during the period of susp<1DSion proc.eedings.\n\nUnless the proceedings have started as indicated earlier the Registrar cannot call in aid the power exertjsable under s. 35(2) of the Act.\n\n(422&.FJ\n\n(ii) As no prjlOOCdings had bee!' set in motin in acoordOl!lCe ith the pro'iisions of the statnte, the interim suspens10!1. of the cottee of management was bad. As appointment of administrator during the interim period is not ruled out of the provisions of s. 35(2) of the Act, but the prerequisite condition to t)le appointment of the interim administrator ood not been fulfilled in the present case, because no proceeding for the supersession of the committee of management of the society had commenoed. [4220-H; 423A-BJ\n\n(iii) The administrator appoiinted by the Registrar withdrew t!ie delegation of the petitioner appellant V to the Uttar Pradesh Provincial Cooperative Federation. Since the appointment of the administrator was bad the withdrawal of the delegation of V by the administrator was also bad. [423C.D]\n\nAccordingly the writ petition and the appeal must be a!lQwed and the order of the Deputy Registmr dated 14 July, 1971 must be quashed. -\n\n[423DJ\n\nORIGINAL/CJVIL APPELLATE JURISDICTION : Writ Petition No. 298 of 1971.\n\nPetition under Article 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 593 of D 1972.\n\nAppeal by a special leave from the judgment and order dated November 24, 1971 of <the High Court of Allahabad in W.P. No. 6667 /71.\n\nA.K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dharmpal Singh Chauhan, for the petitioner and appellant.\n\nC. K. Daphtary, B. Sen and 0. P. Rana, for the respondents Nos. 1-3 (in writ petition and Appeals).\n\nThe Judgment of the Court was delibered by\n\nRAY, J. The petitioner in this writ petition impeaches the order dated 14 July, 1971 passed by the Deputy Registrar, Cooperative Societies, Meerut, By that order the Deputy Registrar, Cooperative Societies suspended the President and the committee of management of J ahangirabad Cooperative Marketing Society Ltd., J ahangirabad. The petitioner V eerpal Singh was the President of the Jahangirabad Cooperative Marketing Society. By that order the Deputy Registrar further appointed Ghanshyam Murari Sharma, Additional District Cooperative Officer, Bulandshahr as Administrator ro carry on the functions of the society.\n\nThe appeal is from the order dated 29 November, 1971 of the Allahabad High Court dismissing in limine the petition under Article 226 of the Constitution. In that petition the appellant Yograj Singh and others challenged the aforesaid order dated 14 July, 1971 suspending the President and the committee of management of Jahangirabad Cooperative Marketing Society.\n\nTwo questions fall for determination in the writ petltion and the appeal. First, whether the Deputy Registrar under the Cooperative\n\nSocieties Act, 1965 referred to as the Act could suspend the President and the committee of management of J ahangirabad Cooperative Marketing Society. Secondly, whether the Deputy Registrar could temporarily appoint an administrator.\n\nCounsel on behalf of the petitioner raised three contentions for impeaching the order of suspension. First, it was said that the order of suspension is void because it is made malafiide and exercised for the collateral purpose of withdrawing the petitioner from the committee of management to which he was elected and in which he continued his office. Secondly, it was said that the order of suspension is bad because there were no supersession proceedings as contemplated in section 35 of the Act. The Registrar did not give an opportunity to the Society and did not hear the Society. The Registrar did not obtain the opinion of the general body of the society as to the suspension of the committee. Thirdly, it was said that !lie suspension order could not have the effect of appointment of an administrator under section 35 of the Act.\n\nIn the month of April 1969 there was an inspection of the J ahangirabad Cooperative Marketing Society (hereinafter referred to as the Society). That inspection note has, however, not been disclosed. In the month of October, 1969 the petitioner was reelected as a Director of the management of the society. Again, in the month of October, 1969 the petitioner was appointed as a delegate by the committee of management of the Society to the Provincial Cooperative Federation. Subsequently, the general body of the Provincial Cooperative Federation elected the petitioner to the committee of management of the Federation. In the month of April\n\n1970, the petitioner was also elected Chairman of the Provincial Cooperative Federation.\n\nIn the month of Se_ptember, 1970 at the instance and under the direction of the Deputy Registrar who had been a former Secretary of the Federation and of1Shri Yadav_ the then Minister of Cooperative Society, the Uttar Pradesh Government nominated 10 members and a Chairman of the Federation. The petitioner who was the then Chairman, was however omitted from the list of the U.P.\n\nGovernment. In the month of December, 1970 the new Ministry of the U.P. Government revoked the previous order of Government made in !he m_onth of September, 1970.\n\nIn the month of June, 1971 there was again a new Ministry in which Shri Yadav again became the Minister of Cooperative Society. The Government then nominated 10 members in the committee of management of the Federation under section 34(1 ) of Act and appointed the Additional Registrar of Cooperative Society as the President.\n\n' _., •\n\n~ \\\n\n• ;\n\nA In the month of June, 1971 a lot was drawn to find out which of the Directors of the Provincial Cooperative Federation were to vacate the office in order to make room for the nominees of the Government. The petitioner survived his office in the lot.\n\nThe petitioner made an application for amendmen~ of. the petition. In that application for amendment, allegations were made that Shri Y adav and Tyagi both contrived to suspend the committee of management of the Federation. It was also alleged that the withdrawal of the deJegation of the petitioner to the Provincial Cooperative Federation was ante dated. The order of withdrawal . was dated 15 July, 1971. The letter dated 15 July; 1971 is said to have been sent by the administrator of the Society withdrawing the delegation of thpetitioner to the U.P. Provincial Cooperative Federation. The petitioner denies that alleged fact. In the prayer of the petition for amendment the petitioner asked for quashing the order dated 15 July, 1971. ·\n\nIn view of the fact that the petitioner did not allege facts ta raise any plea of malafide acts on the part of the respondents this Court did not allow any amendment of the peti(ion. The power of suspension of the committee of management is. to be found in section 35(2) of the Act.\n\nSection 35 (2) of the Act is as follows\n\n\"Where the Registrar, while proceeding to take action under sub-section (1) is of opinion that suspension of the committee of management during the period of proceedings is necessary in the interest of the society, he may suspend the committee of management which shall thereupon cease ta function, and make such arrangement as '1e thinks proper for the management of the affairs of the society till the proceedings are completed.: , Provided that if the committee of management sa suspended is not Sl!l'erseded it shall be reinstated and the . period during which it has remained suspended shall count towards its term\".\n\nThe Registrar has power under section 35(1) of the Act to supersede the committee of management. The circumstances under which he can exercise his powers are when in the opinion of the Registrar the society makes default or is negligen~ in the performance of duties imposed on it by the Act or t; he rules or the bye-laws of the society or commits any act which is prejudicial to the interest of the society or its members, or is otherwise not functioning properly, the Registrar after affording the committee of anagement a reasonable opportunity of being heard and obtaining the opinion of the general body of the society in a general meeting called for the purpose in the manner prescribed may, by order in writing, supersede the committee of management.\n\nThese provisions indicate the circumstances under which the .Registrar has power to supersede or suspend the committee of management and to appoint an administrator. Section 35(2) of the Act confers power on the Registrar to suspend the committee of management during the period of proceedings for supersession. The Registrar has also power under section 35(2) of the Act to make arrangemeno as he thinks proper for the management of the society till the proceedings are completed. The power to suspend the committee of management during the period of proceedings is exercisable when proceedings for supersession have commenced. Section 35(1) of the Act shows that when the Registrar is of opinion that the commiHee of a cooperative society makes default or is negligent in the performance of duties or is otherwise not functioning properly the Registrar may supersede the committee of management and has to give an opportunity to the society to be heard in that behalf. The Registrar has also to obtain the opinion of !)le general body of the society. Therefore, the opinion of the Registrar is to be followed by some definite act which will commence the proceedings for supersession. The provisions in the Act indicate that some definite step like the issue of a notice must be taken under the provisions of section 35(1) of the Act with a view to show that proceedings for supersession of !he committee are set in motion.\n\nIt is therefore manifest that power exercisable under section 35 (2) of the Act is confined to the time during the period of supersession proceedings. Unless the proceedings have started as indicated earlier !he Registrar cannot call in aid the power exercisable under section 35 (2) of the Act.\n\nThe second question which has to be decided is whether. the Registrar could appoint an administrator in the present case. The Registrar could not appoint an administrator. The reasons are these. The proceedings for supersession of the committee of managementi have not commenced. The proceedings can commence only when the necessary step to commence it is taken. The interim suspension of the committee of management under section 35(2) of the Act is when when in the opinion of the Registrar the suspension of the committee of management during the period of proceedings is necessary in the interest of the society. As no proceedings have been set in motion in accordance with the pro, visions of the statute, the interim suspension of the committee of management is bad. An appointment of administrator is specifically dealt with in sui>sectlons 3, 4, 5 and 6 of section 35 of the Act. The appointment of administrator is normally after the\n\npersession of the committee of management. It is true that there 1s no specific provision for an appoin!ment of administrator during\n\nthe interim period. But section 35(2) of the Act st.ates that the- Registrar may make such arrangement as he thinks proper for the management of the affilis of the society till the proceedings arecompleted. An appointment of administrator during the intmm period is therefore not ruled out of the provisions of section 35(2) of the Act, but tlle prerequisite condition to the appointment of the interim administrator has not been fulfilled in the present case, because no proceedings for the supersession of the committee of management of the socie-ty have commenced.\n\nThe administrator appointed by tlle Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Cooperative Federation. Under Rule 86 of the Uttar Pradesh Cooperative Societies Rules 1968 a person who is a delegate of a cooperative society shall cease to be such delegate if he is withdrawn by the committee, administrator or administrators appointed by the Registrar under section 35 of the Act.. In the present case the appointment of tlle administrator is bad as indicated earlier. The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator.\n\nFor these reasons, the order dated 14 July, 1971 is set aside and quashed. The petition succeeds. The appar is also allowed.\n\nParties will pay and bear their own costs.\n\nG.C.\n\nAppeal allowed.", "total_entities": 67, "entities": [{"text": "VBERPAL SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "V eerpal Singh", "offset_not_found": false}}, {"text": "REGISTRAR, COOPERATIVE SOCIETIES, U.P.", "label": "RESPONDENT", "start_char": 18, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "REGISTRAR, COOPERATIVE SOCIETIES, U.P. & ORS", "offset_not_found": false}}, {"text": "January 22, 1973", "label": "DATE", "start_char": 65, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "January 22, 1973\n\n[S. M. S!KRI, C. J., A. N. RAY, D. G. PALEK.AR, M. H. BEG AND\n\nS. N. DWIVEDI, JJ.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 104, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 131, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "S. N. DWIVEDI, JJ.", "label": "JUDGE", "start_char": 146, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Cooperative Societies Act", "label": "STATUTE", "start_char": 166, "end_char": 191, "source": "regex", "metadata": {}}, {"text": "s. 35(2)", "label": "PROVISION", "start_char": 378, "end_char": 386, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Societies Act", "statute": "Cooperative Societies Act"}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 711, "end_char": 734, "source": "ner", "metadata": {"in_sentence": "A writ petition was filed by Y and others in the High Court of Allahabad under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 741, "end_char": 749, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Societies Act", "statute": "Cooperative Societies Act"}}, {"text": "J ahangirabad Cooperative Marketing Society", "label": "ORG", "start_char": 949, "end_char": 992, "source": "ner", "metadata": {"in_sentence": "V, who was the President of the J ahangirabad Cooperative Marketing Society also filed a writ petition ilJl this Court challenging the Deputy Registrar's order dated 14 July, 1971."}}, {"text": "14 July, 1971", "label": "DATE", "start_char": 1083, "end_char": 1096, "source": "ner", "metadata": {"in_sentence": "V, who was the President of the J ahangirabad Cooperative Marketing Society also filed a writ petition ilJl this Court challenging the Deputy Registrar's order dated 14 July, 1971."}}, {"text": "s. 35", "label": "PROVISION", "start_char": 1412, "end_char": 1417, "source": "regex", "metadata": {"statute": null}}, {"text": "Cooperative Societies Act, 1965", "label": "STATUTE", "start_char": 1429, "end_char": 1460, "source": "regex", "metadata": {}}, {"text": "Section 35(2)", "label": "PROVISION", "start_char": 1610, "end_char": 1623, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Societies Act, 1965", "statute": "the Cooperative Societies Act, 1965"}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 1792, "end_char": 1805, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Societies Act, 1965", "statute": "the Cooperative Societies Act, 1965"}}, {"text": "Section 35(1)", "label": "PROVISION", "start_char": 2073, "end_char": 2086, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Societies Act, 1965", "statute": "the Cooperative Societies Act, 1965"}}, {"text": "section 35(!)", "label": "PROVISION", "start_char": 2752, "end_char": 2765, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35(2)", "label": "PROVISION", "start_char": 2930, "end_char": 2938, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35(2)", "label": "PROVISION", "start_char": 3140, "end_char": 3148, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35(2)", "label": "PROVISION", "start_char": 3429, "end_char": 3437, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar Pradesh Provincial Cooperative Federation", "label": "ORG", "start_char": 3810, "end_char": 3857, "source": "ner", "metadata": {"in_sentence": "4220-H; 423A-BJ\n\n(iii) The administrator appoiinted by the Registrar withdrew t!ie delegation of the petitioner appellant V to the Uttar Pradesh Provincial Cooperative Federation."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4226, "end_char": 4236, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4244, "end_char": 4265, "source": "regex", "metadata": {}}, {"text": "A.K. Sen", "label": "LAWYER", "start_char": 4478, "end_char": 4486, "source": "ner", "metadata": {"in_sentence": "A.K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dharmpal Singh Chauhan, for the petitioner and appellant."}}, {"text": "A. P. Singh Chauhan", "label": "LAWYER", "start_char": 4488, "end_char": 4507, "source": "ner", "metadata": {"in_sentence": "A.K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dharmpal Singh Chauhan, for the petitioner and appellant."}}, {"text": "V. C. Prashar", "label": "LAWYER", "start_char": 4509, "end_char": 4522, "source": "ner", "metadata": {"in_sentence": "A.K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dharmpal Singh Chauhan, for the petitioner and appellant."}}, {"text": "Dharmpal Singh Chauhan", "label": "LAWYER", "start_char": 4527, "end_char": 4549, "source": "ner", "metadata": {"in_sentence": "A.K. Sen, A. P. Singh Chauhan, V. C. Prashar and Dharmpal Singh Chauhan, for the petitioner and appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 4586, "end_char": 4600, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen and 0."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 4602, "end_char": 4608, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 4613, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, B. Sen and 0."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4731, "end_char": 4734, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delibered by\n\nRAY, J. The petitioner in this writ petition impeaches the order dated 14 July, 1971 passed by the Deputy Registrar, Cooperative Societies, Meerut, By that order the Deputy Registrar, Cooperative Societies suspended the President and the committee of management of J ahangirabad Cooperative Marketing Society Ltd., J ahangirabad."}}, {"text": "V eerpal Singh", "label": "PETITIONER", "start_char": 5076, "end_char": 5090, "source": "ner", "metadata": {"in_sentence": "The petitioner V eerpal Singh was the President of the Jahangirabad Cooperative Marketing Society.", "canonical_name": "V eerpal Singh"}}, {"text": "Ghanshyam Murari Sharma", "label": "OTHER_PERSON", "start_char": 5213, "end_char": 5236, "source": "ner", "metadata": {"in_sentence": "By that order the Deputy Registrar further appointed Ghanshyam Murari Sharma, Additional District Cooperative Officer, Bulandshahr as Administrator ro carry on the functions of the society."}}, {"text": "Bulandshahr", "label": "GPE", "start_char": 5279, "end_char": 5290, "source": "ner", "metadata": {"in_sentence": "By that order the Deputy Registrar further appointed Ghanshyam Murari Sharma, Additional District Cooperative Officer, Bulandshahr as Administrator ro carry on the functions of the society."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 5472, "end_char": 5483, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Yograj Singh", "label": "PETITIONER", "start_char": 5536, "end_char": 5548, "source": "ner", "metadata": {"in_sentence": "In that petition the appellant Yograj Singh and others challenged the aforesaid order dated 14 July, 1971 suspending the President and the committee of management of Jahangirabad Cooperative Marketing Society."}}, {"text": "Societies Act, 1965", "label": "STATUTE", "start_char": 5849, "end_char": 5868, "source": "regex", "metadata": {}}, {"text": "section 35", "label": "PROVISION", "start_char": 6560, "end_char": 6570, "source": "regex", "metadata": {"linked_statute_text": "the Deputy Registrar under the Cooperative\n\nSocieties Act, 1965", "statute": "the Deputy Registrar under the Cooperative\n\nSocieties Act, 1965"}}, {"text": "section 35", "label": "PROVISION", "start_char": 6900, "end_char": 6910, "source": "regex", "metadata": {"statute": null}}, {"text": "Provincial Cooperative Federation", "label": "ORG", "start_char": 7363, "end_char": 7396, "source": "ner", "metadata": {"in_sentence": "Again, in the month of October, 1969 the petitioner was appointed as a delegate by the committee of management of the Society to the Provincial Cooperative Federation."}}, {"text": "Yadav", "label": "OTHER_PERSON", "start_char": 7815, "end_char": 7820, "source": "ner", "metadata": {"in_sentence": "In the month of September, 1970 at the instance and under the direction of the Deputy Registrar who had been a former Secretary of the Federation and of1Shri Yadav the then Minister of Cooperative Society, the Uttar Pradesh Government nominated 10 members and a Chairman of the Federation.", "canonical_name": "Y adav"}}, {"text": "Uttar Pradesh Government", "label": "ORG", "start_char": 7868, "end_char": 7892, "source": "ner", "metadata": {"in_sentence": "In the month of September, 1970 at the instance and under the direction of the Deputy Registrar who had been a former Secretary of the Federation and of1Shri Yadav the then Minister of Cooperative Society, the Uttar Pradesh Government nominated 10 members and a Chairman of the Federation."}}, {"text": "U.P.\n\nGovernment", "label": "ORG", "start_char": 8031, "end_char": 8047, "source": "ner", "metadata": {"in_sentence": "The petitioner who was the then Chairman, was however omitted from the list of the U.P.\n\nGovernment."}}, {"text": "U.P. Government", "label": "ORG", "start_char": 8104, "end_char": 8119, "source": "ner", "metadata": {"in_sentence": "In the month of December, 1970 the new Ministry of the U.P. Government revoked the previous order of Government made in !"}}, {"text": "section 34(1 )", "label": "PROVISION", "start_char": 8425, "end_char": 8439, "source": "regex", "metadata": {"statute": null}}, {"text": "Y adav", "label": "OTHER_PERSON", "start_char": 8934, "end_char": 8940, "source": "ner", "metadata": {"in_sentence": "In that application for amendment, allegations were made that Shri Y adav and Tyagi both contrived to suspend the committee of management of the Federation.", "canonical_name": "Y adav"}}, {"text": "Tyagi", "label": "OTHER_PERSON", "start_char": 8945, "end_char": 8950, "source": "ner", "metadata": {"in_sentence": "In that application for amendment, allegations were made that Shri Y adav and Tyagi both contrived to suspend the committee of management of the Federation."}}, {"text": "U.P. Provincial Cooperative Federation", "label": "ORG", "start_char": 9351, "end_char": 9389, "source": "ner", "metadata": {"in_sentence": "The letter dated 15 July; 1971 is said to have been sent by the administrator of the Society withdrawing the delegation of thpetitioner to the U.P. Provincial Cooperative Federation."}}, {"text": "15 July, 1971", "label": "DATE", "start_char": 9526, "end_char": 9539, "source": "ner", "metadata": {"in_sentence": "In the prayer of the petition for amendment the petitioner asked for quashing the order dated 15 July, 1971. ·"}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 9801, "end_char": 9814, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 35", "label": "PROVISION", "start_char": 9828, "end_char": 9838, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(1)", "label": "PROVISION", "start_char": 10522, "end_char": 10535, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 35(2)", "label": "PROVISION", "start_char": 11417, "end_char": 11430, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 11598, "end_char": 11611, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 35(1)", "label": "PROVISION", "start_char": 11880, "end_char": 11893, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(1)", "label": "PROVISION", "start_char": 12561, "end_char": 12574, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 12731, "end_char": 12741, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 12946, "end_char": 12956, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 13397, "end_char": 13410, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 13839, "end_char": 13849, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 14076, "end_char": 14089, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35(2)", "label": "PROVISION", "start_char": 14363, "end_char": 14376, "source": "regex", "metadata": {"statute": null}}, {"text": "Veerpal Singh", "label": "PETITIONER", "start_char": 14719, "end_char": 14732, "source": "ner", "metadata": {"in_sentence": "The administrator appointed by tlle Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Cooperative Federation.", "canonical_name": "V eerpal Singh"}}, {"text": "Uttar Pradesh Cooperative Societies Rules 1968", "label": "STATUTE", "start_char": 14810, "end_char": 14856, "source": "regex", "metadata": {}}, {"text": "section 35", "label": "PROVISION", "start_char": 15043, "end_char": 15053, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Cooperative Societies Rules 1968", "statute": "the Uttar Pradesh Cooperative Societies Rules 1968"}}, {"text": "Veerpal Singh", "label": "PETITIONER", "start_char": 15212, "end_char": 15225, "source": "ner", "metadata": {"in_sentence": "The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator.", "canonical_name": "V eerpal Singh"}}]}
{"document_id": "1973_3_424_429_EN", "year": 1973, "text": "M/S. KANPUR VANASPATI STORES, KANPUR\n\nTHE COMMISSIONER OF SALES TAX, U.P. LUCKNOW\n\nJanuary 22, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANN,\\ J.J.] B\n\nU.P. Salts Tax Act, Sec. 3A : (•successivt Dealer\". whether includes an importer who is the first cleal\". U, f. Scles Tc~• Act, Sec. 9(1) proviso; \"tax adn1itted\"-Whether restricted to ad1nission in 111e111oran dum of apptal only.\n\nThe assessee, among other things, imports and distributes vanaspati as agent of certain compa:nies..\n\nFor the year 1957-58, he filed a return on a turn over of Rs. 1,66,387.3 P and paid tax of Rs. 1060.30.\n\nBefore the assessing authority, he accepted the liability of Rs. 10,331H9 p.\n\nOn independent enquiries, the Sales Tax Officer came to the conclusion that the turn over was Rs. 58,06,132.31) and the tax liability was to the extent of Rs. 3,62,691. 62P. The tax authority had to resort to best assessment, as the assessce failed to appear, although 30 adjour.nments were given. The assessee filed an appeal to the appellate authority without depositing the tax, as required by proviso to Sec. 9 of the Act.\n\nThe appeal was dismissed for noncompli®ce of Sec. 9.\n\nAt the inst an~ .of the assessee, the question of maintainability of 'IJ'peal was referred to the High Court. During the pendency of the reference, the asses., e filed wnt petitions challeinging the validity of the Notification issued under section 3A and the legality of the proceedings. The High Court htld that the appeal was properly dismissed. Before this Court. the following questions were raised : (i) that the assessee-appellant being an importer cannot be considered as one of the successive dealers in the series of sales as contemplated by Section 3A aind, therefore, the Notification under section 3(A) was ultra vires, and (ii) that the dismissal of appeal, for want of payment of the admitted tax under section 9( I) , of the Act was illegaL\n\nDismissing the appeal, HELD : (i) An importer is one of the dealers.\n\nHe is the first deal.er in the State.\n\nChain of successive dealers begins from the first dealer and it goes to the 1ast dealer.\n\nIn view of this, dealer in this chaiu can be considered as a \"suc'cessive dealer\".\n\nThe series does not begin in the middle. The notification undelr section 3 is a valid notification Ram Ku1nar Rajendra Swaroop Vs. Co111111issjoner of Sr.fes Tax (19 S.T.C. 241) approved. [4266 C-DJ\n\n(ii) Th.e assessee had accepted the liability of Rs. 10,339/- before the tax authorities. Under Rules 41 (2) read with 12 he was bound to submit the quarterly return and also deposit the tax due in accordance with the return.\n\nThe expression \"tax'. admitted\" in proviso . to Section 9(1) means tax admitted before the assessing authority and not hefore the appellate authority. A• par, ment of the admitt, ed tax is one of the cond1tlons for the maintainab11itv of the appenl, Section 9(1) would be rendered wholly useless, if it is interpreted to me:in ta~ admitted in the memorandum of appeal. Ordinarily. no interpretation •hould be placed on a provision which would have the effect of mnkin11 !he provision either otiose or a dead letter. [4260-H; 427A-DJ\n\nChanshyam Dass Balmukand v. The State of U.P. & Ors. (23 S. T.C. 282) and United Timber & Cmheu• Products (P) Ltd. v. Sales\n\n1'ax Officer. Cannanor< (28 S.T.C. 526), overruled.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2300 to 2302 of 1969 and 14 & 15 of 1970.\n\nAppeal by a special leave from the judgment dated August 7, 1968 and 18th August 1969 in Sales Tax Reference No. 574 of J 963. and Special appeal No. 330 of 1963, Misc. Application No. 177 of 1963 and S.A. Nos. 423 and 424 of 1968 respectively.\n\nS. V. Gupte, K. L. Arora, S. K. Bagga and S. Bagga, for the nppellant.\n\nN. D. Karklzanis and 0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J, These are appeals by special leave.\n\nThey are filed by the same assessee.\n\nThey arise from the decision of a Division Bench of the Allahabad High Court. The judgment under appeal not only deals with references made under the U.P. Sales Tax Act 1948 (hereinafter referred to as the Act) but also the two Writ Petitions filed by the assessee.\n\nThe assessee who is a registered dealer under the Act is having his business at Kanpur. It carries on business in hydrogenated oil and washing soap. It also imports and distributes vanaspati as an agent of Malwa Vanaspati and Chemical Company Ltd., Indore.\n\nIn these appeals we are concerned with the assessee's assessment of sales tax for the assessment year 1957-58. Its return for that year disclosed a gross as well as net turnover of Rs. 1,66,387.03 P. Along with its return the assessee paid Rs. l ,060.30P. towards the tax due. Before the assessing authority the assessee admitted that its tax liability was Rs. 10,339.l 9P. It is admitted as well as proved that the assessee had collected from its purchasers the said amount of Rs. 10,339.19P. The Sales Tax Officer after making certain enquiries came to the conclusion that the total turnover of the assessee during the assessment year in 4uestion was Rs. 58,06, l 32.30P. The assessee was given opportunity to show that the estimate made by the Sales Tax Officer was not correct. from the records of the case we find that as many as 30 adjournments were given to the assessee to establish its case but the assessee did not take advantage of those opportunities. The case was finally posted for bearing on 24th March, 1962. That day the assessee was absent; but it made an application for adjournment of the case by 15 days. That adjournment was not granted and it could not have been granted because the assessment would have been.barred by the end of the financial year 1961-62. Hence the\n\nassessing authority, on the basis of its best judgment determined the A tum-over of the assessee at Rs. 58,06,132.30P. and determined its tax liability at Rs. 3,62,691.62P. under section 3A of the Act.,\n\nAgainst the order of assessment the assessee filed an appeal within 30 days from the date of the order of assessment. At the time of filing the appeal the assessee deposited only a sum of Rs. 1, 600. In appears that the office of the AppcJlate Judge raised some objections as to the maintainability of tho appeal. Am:r receiving some explanation from the assessee the appeal was entertained and notice issued to the assessing authority. When the Sales Tax Officer put in his appearance in he appeal he objected to the maintainability of the appeal on the ground that the Priviso to Section 9 of the Act had not been complied with. That objection was accepted and the appeal was dismissed as not mainminable.\n\nThereafter at the instance of the assessee certain questions were referred to the High Court for ascertaining it~ opinion. During the pendency of that refernce the assessee filed a Writ Petition under Article 226 of the Constitution challenging the validity of the Notification issued under Section 3 A. Thereafter another application was made under Article 227 of the ConsHtution challenging the recovery proceedings. Both the Writ Petitions were dismissed. In the reference made by the AppcJlate Judge the High Court came to the conclusion that the appeal was properly dismissed.\n\nMr. Gupte, the learned counsel for the assessee-appellant E advanced the following contentions before us;-\n\n(!) That the appeal was illegally dismissed;\n\n(2) That the assessee-appellant being an importer cannot be considered as one of the successive dealers in the series of sales .as contemplated F by Section 3A; and\n\n(3) That the Notification issued under Section 3A was ultra vires the power granted on the government.\n\nIn order to appreciate the contentions advanced, it is necessary to refer to certain provisions of the Aot\n\nSection 3 ( 1 ) of the Act provides :\n\n\"Subject to the provisions of this Act every dealer shall, for each assessment year, pay a tax at the rate of three pies per rupee on his turnover of such year, which shall be determined in such manner as may be prescribed.\" (Remaining portion of the provision is not relevant for our purpose).\n\nSection 3A(l) reads thus:\n\n\"Notwithstanding anything contained in Section 3, the State Government may, by notification in the official Gazette, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify.\" (Remaininl( por'tion of Section 3A is not relevant for our purpose).\n\nNow we come to Section 9 ( 1) and this section provides :\n\n. \"Any dealer objecting to an order allowing or refusing an application for exemption certificate under clause\n\n(b) of sub-section ( 1) of Section 4 or to an order refusing an application under Sec. 30 or to an order inposing a penalty under Section 15-A or an assessment made.under Section 7, 7-A, 7-B 18 or 21, may within 30 days from the date of service of the cfopy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed :\n\nProvided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the ap- .pe//ant to be due, or of ruch instalments thereof as may\n\nhave become payment : (emphasis supplied)\" (Second Proviso is not relevant fcir our present purpose) . .. we may now turn to rules 12 and 41 (2). Rule 12 provides for the submission of the quarterly returns by an importer. Rule 41 prescribes the mode of submission of returns and assessment. Sub- Rl!ltl 2 of Rule 41 prescribes:-\n\n\"Before submitting. the return under sub-rule ( 1), the dealer shall deposit in the 'treasury the amount of tax calculated by him on the turnover shown in such return and shall submit the treasury challan with the return or submit with the return a cheque for the amount so calculated.\" (Proviso is not relevant for our present purpos~).\n\nHaving referred to the material provisions in the Act and the Rules, let us now turn biack to the contentions advanced before us.\n\nWe shall take up the last two contentions first, namely; that the assessee, who is an importer, not being one of the \"successive dealers\" could not have been brought to tax under section 3A and as H such the notification issued by the Government under section 3A bringing to tax the import of vam1spati rriade by the assessee from Indore under Section 3-A, is ultra vires.\n\nIt may be noted that Section 3 is the general provision.\n\nIt provides for multipoint tax. 12-L796Sup. CI/73\n\nTo this general Rule cartain exceptions are provided. One of the exceptions is that provided under Section 3A.\n\nThat Section permits the Government to Select certain items of goods foia single point levy.\n\nVanaspirti is one of the items of goods for a single point levy.\n\nThe appellant does not contest the competence of the legislature to enact Section 3A. It also does not contest 'th~ validity of the power conferred on the Government to select sale of certain goods for single-point taxation. What is contended on its behalf i. that section 3A provides that single-point levy can be imposed\n\nnly on the \"successive dealers\" in the series of dealers; an importer is not one such dealer; he being the very first dealer in the\n\nState. Undoubtedly, an importer is one of the dealers. He is the first dealer in the State. The chain of successive dealers begins from the first dealer and it goes upto the last dealer. Any one of the dealers in this chain can be considered as a \"successive dealer\".\n\nThe series do not being in the middle. It must necessarily begin at the very beginning. This is also. the view taken by the Allahabad High Court in Ram Kw:nar Rajendra Swaroop vs. Commissioner of Sales Tax ('). It is an obvious conclusion. If an importer is one of the successive dealers, which undoubtedly he is, necessarily the notification issued by the Government must be considered to be a valid notification. In this view we reject the last two contentions :advanced by Mr. Gupte.\n\nNow turning our attention to the first contention advanced by Mr. Gupte, we find there are several difficulties in the way of acoeepting the same. As mentioned earlier the assessee in his 'return\n\nhas shown what its turnover was and at what rate the tax is pay- .able by it. It had admitted before the assessing authority what its turnover was.\n\nFurther it had also admitted before that aulhority that rt was liable to pay tax at the rate of one anna per rupee on its\n\ntumO\\'er which comes to Rs. 10.339.190. It had also admitted before the same authority that it had collected that amount from its purchasers. It did not dispute before the assessing authority the validity of the notification issued under section 3A. Under Rule 41 (2) read with Rule 12 it was bound to submit quarterly returns.\n\nWe take it that it must have submitted its quarterly returns. Under \"Sub-rule 2 of Rule 41 the assessee was bound to deposit the tax due from it according to its returns. In other words even according to the assessee it was bound to deposit into the Treasury or pay cheqUe to the assessing authority of Rs. 10,339.19p. Admittedly, it Jiad not done so: What is urged by the learned counsel is that whatever might be the facts admitted in the return and whatever might be the admissions made before the assessing authority it was open to the assessee to take a different stand in its memorandum of appeal and what is relevant for the purpose of Section 9 is the\n\n(I) 19 ST.C 241.\n\n...\n\n' ..\n\nstand taken by the assessee in the memorandum of appeal. In support of that contention two decisions; One of the Allahabad High Court in Ghansh, vam Dass Balmukund. vs. The State of 1 , Uttar P.radesh & Ors. ( 1) and the other of rthe Kerala High Court in United Timber & Cashew Products (P) Ltd. vs; Sales Tax Officer, Cannanore,(') were cited .. Those decisions undoubtedly sup-_ port the contention of the Appellant but we find it difficult to accept the conclusions r.eached by the Allahabad High Court and the Kera la _High Court. In his decision the learned single Judge or\n\nthe Kerala High Court has merely followed the Allahabad High Court's.decision. If we come to the conclusion that the expression \"tax admitted\" in the proviso to Section'9(1) means that admitted in the memorandum of appeal, section 9 can be made whollyuseless.\n\nAll that an asses.see has to do is not to admrt his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. Further, to find out the true meaning of the expression \"tax admitted\" we must take into consideration the remaining words of the proviso namely \"or such instalments thereof as may become payable\". Those words furnish\n\na key to the interpretation. If one of the conditions for maintainability of the appeal is payment of the instalments which have become payable under Rule 41 (2). It means that th.e admission that has got to be taken into consideration is that made before the assessing authority and not before the a12pellate authority. 1kit\n\napart we do not think that the stand taken by the Appellant before the appellate authority can be considered as a qona fide stand.\n\nWe are of the opinion that the contention taken by the appe'.hat, before the appellate authority that it cannot be brought within the scope of section 3A of the Act was an after-thoµght.\n\nNo such contention was taken before the assessing authority. If the :issessee believed that contention to be true it would not have collected from. its _purchasers the tax @ 1 anna per Rupee Further it is now well settled by the decision of this court that no . one can challenge the .validity of a provision of an Act or Rule made thereunder or .even a notification issued either under the Act or under the Rules made before the authorities constituted urider the - Act. It is true as contended by Mr. Gupte that these decisions were rendered long after 1962 but the fact remains that the decisions in question merely interpret what the law is .\n\nWe find neither merit nor equity in these appeals.\n\nHence these appeals are dismissed with costs; hearing fee one set.\n\nSBW\n\n(I) 23 S.T.C. 282.\n\nAppeals dismissd.\n\n(2) 28 S.T.C. 526. c", "total_entities": 60, "entities": [{"text": "S. KANPUR VANASPATI STORES, KANPUR", "label": "PETITIONER", "start_char": 2, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "M/S. KANPUR VANASPATI STORES, KANPUR", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF SALES TAX, U.P. LUCKNOW", "label": "RESPONDENT", "start_char": 38, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF SALES TAX, U.P. LUCKNOW", "offset_not_found": false}}, {"text": "January 22, 1973", "label": "DATE", "start_char": 83, "end_char": 99, "source": "ner", "metadata": {"in_sentence": "M/S. KANPUR VANASPATI STORES, KANPUR\n\nTHE COMMISSIONER OF SALES TAX, U.P. LUCKNOW\n\nJanuary 22, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANN,\\ J.J.] B\n\nU.P. Salts Tax Act, Sec."}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 102, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 115, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "P. 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{"document_id": "1973_3_430_437_EN", "year": 1973, "text": "VEERPAL SINGH\n\nDEPUTY REGISTRAR, CO-OPERATIVE SOCIETIES,\n\nMEERUT & ORS.\n\nJanuary 23, 1973\n\n[S. M. S!KRI, C. J., A. N. RAY, D. G. PALEKAR, M. H. BEG AND\n\nS. N. DWIVEDI, JJ.)\n\nUlli<r Pradesh Co-operative Societies Act, 1965, Ss. 38 and 128- Deputy Registrar passing orders for removal of members of Boc.V-d of Directr2rS of Dist.\n\nCooperative Societies Federation Buk:ndshahr on the ground that the Unions represented by them were in default within the meaning of bye-law No. 1 (Ta) of the Federation-Deputy Registrar further ordering annulment of resolutions Committee of management en the ground that the proceedings were not in compliance with bye-law!\n\nNo. !O(cha) and No. II-Legality of Deputy Registrar's orders.\n\nThe petitioner was a delegate from the Oo-operative Federation of Unchagaon to the Bulandshahr Dis!¢tl Cooperative!\n\nFederation. In the prest writ petition under Art. 32 of the Constitution he challenged the orders of the Deputy Registrar Cooperative Societies (i) removing him and two other delegates from the membership of the Board of Directors of the Federation i.n exercise of powers under s. 38 of the U.P. Cooperatives Societies Act 1965 on the ground that their Unions were defaulters in respect of their dues to the Federation thus attracting bye-law No. I (Ta) of the Fed., ation; (ii) annulling in exercise of powers u.nder s. 128 of thl! Act. The resolutions of the Committee of Management dated 15th. March 1972 ;,,, favour of the petitioner end the other two other delegates on the g'round tbat the minutes of the meeting in which the resolutions were passed were not -recorded by the Secretary and the proceedings were thus in violation of bye-laws No. 10\n\n(cha) and No. 11.\n\nAllowi; ng the petition,\n\nHEW: (I) The Deputy Regis!rar could not rely on bye-law No. 1 (Ta) to justify the removal of the petitioner and the two othtjdelegates from the membership of the Board of Directors. The Federation was not a credit society. The Federation did not have any loan transaction with the co-operative unions.\n\nThe co-operative unions did not have any loan !ransactions wilh the petitioner. The dues of the co-operative unions were in respect of supplies of goods by the Federation to the C0-opt:rative unions. These were commercial transactions.\n\nThese were commercial debts.\n\nPrice of goods supplied if outstanding does not constitute Joan within the meaning of the bye-law. The impugned 9fder \\Vas eintirely on an illegal basis and wrong interpretation of the bye-law. The order was bad. [435F-H; 436A-B]\n\n(2) The meeting of the Federation on 15th March, 1971 w., properly conducted. The Chairman rightly appointed an lected Director to record the minutes of the meeting 'in view of the wilful absence of the Secretary. Section 188 of the Act also protects the proceedings of the meeting. The Deputy Registrar acted illegally in annulling the ..,_.olutions of the Federation held on 15th March 1971. [436G-lll\n\nVEERPAL V, DY. REGIS. CU-OP, SOCIETIES (Ray, J,) 431\n\nORIGINAL JURISDICTION : Writ Petition No. 214 of 1972.\n\n(Petition under Article 32 of the -Constitution of India for the enforcement of fundamental rights).\n\nA. P. Singh Chauhan and N. N. Sharma, for the petitioner.\n\nA. K. Sen and 0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRAY, J.\n\nThe petitioner in this writ petition under Article 32 of the Constitution asks for quashing of orders of the respondent Deputy Registrar, Co-operative Societies, Meerut dated 2 May, 1972.\n\nBy the said order dated 2 May, 1972 the respondent Deputy Registrar removed Rajendra Singh, Yograj Singh and the petitioner V eerpal Singh from the Board of Directors of the District Co-operative Federation, Bulandshahr referred to as the Bulandshahr Federation and declared them to be disqualified to the office of the Directors of the Bulandshahr Federation for a period of three years from the date of the order.\n\nRajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation.\n\nThe circumstances under which the aforesaid order came t'O be passed are these according to the Deputy Registrar. There was an inspection in the month of February, 1971 by the Deputy Registrar, Co-operative Societies, Uttar Pradesh aboun the constitution, working and financial condition of the Bulandshahr Fede-. ration. The Deputy Registrar found that the three constituent members of the Federation, viz., Sehkari Sangh Raura, Sehkari Sangh Jarcha and the Co-operative Union Unchagaon were defaulters in respect of their dues to the Bulandshahr Federation.\n\nTherefore the delegates from these three constituen~ members at Raura, Jarcha and Unchagaon were not.qualified to be elected as members of the Board of Directors of the Bulandshahr Federation.\n\nThe annual general meeting of the Bulandshahr Federaion in spite of such disqualification of those three delegates elected them as Directors of the Bulandshahr Federation. The Federation in accordance with their resolution dated 3 April 1971 stated that the three constituent members at Raura, Jarcha and Unchagaon were n~ defaulters. The Deputy Registrar stated that if a member union was a defualter such member-union was diqualified and the disqualification attached to the delegates of such a union. The Deputy Registrar gave the Federation notice under scct:ion 3 8(2) of the Uttar Pradesh Co-operative Societies Act 1965 referred to .as the Act to comply with the requirements in the inspcct:ion note.\n\n,, \" 432\n\nSUI'REME, COURT REPORTS Ll973] J. .s.c, K.\n\nThe Federation did not comply with the requirements indicated in the report of the inspection note. The Deputy Registrar therefore passed the said order dated 2 May, 1972 .\n\n' It is necessary to refer to certain other events which took place prior to the passing of the said order. The Bulandshahr Federation held its annual general meeting on 20 March, 1970 .. At the annual general meeting the committee of management was elected.\n\nThe petitioner was elected one of the Directors constituting ' th.: committee of management of the Bulandshahr Federation. In the month of April 1970 the petitioner was unanimously elected as Chairman of the Bulandshahr Federation,\n\nAfter the Deputy Registrar Co-operative societies sent a copy of the inspection rep<?rt dated 10 February 1971 the committee of management of the Bulandshahr Federation considered the inspection report at a meeting held. on 3 April 1971. . The Petitioner Veerpal Singh, Rajendra Singh and Yograj Singh did not parti, cipate at the meeting inasmuch as the inspection note relatcc\\ to their. allege, d disqualification. The committee. of management of the Bulandshahr Federation recorded that Shri L. N. Batra, Sub- Divisional Magistrate, Khurja as a Scrutiny Office~ in his judgment dated 5 March 1970 in _connection, with the nomination papers of Yograj Singh, Rajendra Singh stated that they were not defaulters and they were competent for , membership of the Board of\n\nDiretors. The committre of management of the Bulandshahr Federation further resolved that none of the three persons namely, the petitioner, )' ograj Singh and Rajendra Singh had pe1sonally taken any loan from the Bulandshahr Federation . nor had the constituent members viz., the Unions at J archa, Raura and Unchagaon ever taken any loan from the Bulandshahr Fede ration. The Committee of Management therefore unanimously decided that the petitioncr,'Yograj Singh and Rajendra Singh were not disqualified to be members of the committee of management of the Bulandshahr Federation. The committee of management appointed a committee consisting of Yashpal Singh and Prahlad Swarup for making enquiry in respect' of amounts outstanding against the Unions atJarcha, Raura and Unchagaon as mentioned in the inspection note.\n\nThe ):Jetitioner further alleges that on 10/15 July, 1971 the Deputy Registrar, Co-operative Societies in collusion with the out going Deputy Registrar obtained an order removing the petitione1 under section 38 of the Act from the directorship of the Federation and also disqualifying him for a period of three years from holding any office undg the Federation. The circumstances under which the order dated ,10/15 July 1971 was passed were that the primary society at Unchagaon from which the petitioner was a delegate to the Bulandshahr Federation was in arrears and .'.the\n\nI\"· •\n\n• '-rl\n\n~ ,.\n\n(~ I\n\n,,- .. .,\n\n• ...\n\n• (\n\nIt . ' \\\n\n• .,\n\n, prim.ary society at Unchagaon w~{aske_d. to om ply with the reqmrcments of the Act and remove the arrears, The. Bulandshahr Fcocration was also asked to secure: compliance by the primary society with the'provisions of the .Aci. Neither the Bulandshahr Fedfration nor the prin1ary society at Unchagaon wiped out the arrears, Therefore,: according to the Deputy Registrar, the pei tjciner was disqualified to be a delegate from the primary society at :un'chagam1. 'r . . .\n\nSimultaneously with. the removal of the petitioner from the coininittee of management of the Buland.shahr Federation, the Deputy Registrar passed similar orders for removal of Y ograj from the Bulandshahr Federation. Rajendra Singh' and Yograj Singh were delegates from the Co-operative Unions at J archa and Raura.\n\nI , . .\n\n, Y, ograj Singh therea[tcr made an application under Article 226 of: the Constitution before the Allahabad High Court. and impeached the order dated 10/15 July, 1971 removing him from the. ccimmitee of management of the Bulandshahr Federation. The High Court at Allahabad by its judgment dated 21 February, 1972 quashed the order dated 10/15 July, 1971 by which the Deputy Registrar had removed Yograj Singh from the committee of management. The High Court held that no individual notice had beert given to Y ogra.i Singh and further tlrnt the inspection note was not a notice to the Society within the , meaning of sectkirt 3l!'(l) of the Act.' . ' . , .. , .. ' \" .· . · . t\n\n; In view of the decision of the Allahabad High Court the com- . mittce of management of the Bulandshahr Federation reinstated\n\nYograj Singh, Rajendra Singh and the petitioner on 15 March, 1972.\n\n : On 20 March, 1972 the Deputy Registrar Cooperative Societies issued a, notice to the Federation under section 128 of the Act to annul the resolution of the Federation dated 15 March, 1972 reinstating the . petitioner, Yograj Singh and Rajendra Singh. The Deputy Registrar on the same day issued another notice to the Bulandshahr Federation under section 38 ( 1) of the Act to show cause as to why action for removal of. the petitioner and Yograj Singh and Rajendra_Singh on !he basis of the delinquency indicated in the inspection note dated 10 February, 1971 should not be .taken. ·\n\nThe petitioner on 24 March, 1972 and again on 29 April, '- 1972 sent two communications to the Deputy Registrar, Cooperative Societies. These two communications were in answer to the notice dated 20 March, 1972 to show cause as to why the resolu-· tion reinstating the petitjoner, Yograj , Singh and Rajendra Singh should not be annulled and also as to why they should not be\n\nremoved. In the notice dated 20 March 1972 for annulment of the proceedings of the committee of management of the Bulandshahr Federation the Deputy Re.gistrar alleged that the proceedings of the committee were no~ in accordance with the provisions of bye-law No. IO(ch) and bye-law No. 11 of the registered bye- Jaws of the Federation. Therefore, the Deputy Registrar gave notice under section 128 of the Act for annulment of the resolution. The petitioner in t'he answers dated 24 March, 1972 and 29 April, 1972 stated that there was no violation of bye-laws.\n\nThe petitioner further stated that the Secretary Tara Chand Sharma wilfully absented himself from the meeting and was therefore a disobedient Secretary who did not carry on the work under the supervision and guidance of the Chairman.\n\nThe petitioner further stated that the procedure at the meeting held on 15 March, 19.72 was lawful. The meeting was conducted by the.acting Chairman Shri Ch. Shahmal Singh who was empowered under bye-law No. I 0 to conduct the meeting. The proceedings of the meeting were recorded by an elected Director Shri Prahlad Swarap, Advocate who was duly appointed for that purpose Section\n\n118 of the Act was relied on by the petitioner to contend that no act of a committee of management shall be deemed t.o be invalid by reason of any alleged defect in the appointment of an officer or on the ground that such officer was disqualified for such appointment or election. The petitioner alleged that the Bulandshahr Federation directed the Secretary Tara Chand Sharma on\n\n10 April 1972 to summon the meeting of the committee of management of the Bulandshahr Federation to consider the pros and cons of the notice dated 20 March, 1972 issued by the Deputy\n\nRegistar. The petitioner further alleged that Tara Chand Shanna was acting under the directions of the Deputy Registrar, Cooperative Societies. Therefore, the petitioner alleged tha~ the Deputy Registrar was not competent and justified to annul the resolution of the committee of management of the Bulandshahr Federation at the meeting held on 15 March, 1972 under secon 128 of the Act.\n\nWith regard to the other notice dated 20 March 1972 under section 38 of the Act to show cause as to why the petitioner and the other two delegates from J arch a and' Raura should not be removed, the petitioner alleged that under section 27 of the Act the Registrar has power to remove or expel a person from its membership of the society (a) if the person has ceased to fulfil the qualifications required for membership or is disqualified ao be a member under the Act, or (b) if the person was admitted to the. membership of the society in contravention .of the provisions of the Act or the rules or of the bye-laws of the society.\n\nThe petitioner also referred to Rule 453(1)(0) of the Uttar Pradesh Cooperative Societies Rules 1961\\ referred to as the Rules\n\nwhich provides tha.t no person shall be eligible to be, or to continue as, a member of the committee of management of any cooperative society, if he is otherwise disqualified under any of the provisions of the Act or the rules or of the bye-laws of the society.\n\nBye-law No. 1 (Ta) of the Bye-laws of the Federation provides that no persoo shall be eligible to be or continue as a member of the committee of management if he, in respect of any loan or loans taken by him, is in default to the Federation or to any other society or the society he represents is in default to the Federation for a period of at least six months. ·\n\nThe allegations made by the Deputy Regist; rar were that the Sehkari Sanghs of Jarcha, Raura and Unchagaon were defaulters to the Federation for the sums of Rs. 4443.04, Rs. 877.43 and Rs. 515.35 respectively for a period exceeding six months as indicated in the inspection report dated 10 February, 1971.\n\nThe first question which arises for consideration is whether t, he petitioner was. a defAulter within the meaning of the Act or the bye-Jaws as alleged in the impeached order. The Secretary of the Federation wrote a letter dated 22 July, 1971 to the Assistant Registrar, Cooperative Societies and stated that the three cooperative Unions at Jarcha, Raura and Unchagaon owed money to the Federation in respect of supplies of fertilisers by the Federation to those three Unions. The Secretary of the Federation also gave a certificate that none of the three cooperative Unions at I archa, Raura and Unchagaon ever took any loan from the Federation.\n\nThe petitioner and the other .two persons who were delegates from the three cooperative Unions did not owe any money whatever. to the cooperative Unions or to the Federation.\n\nThe Federation is a District Cooperative Federation within the meaning of rule 2(o). That rule states that a District Cooperative Federation means a Central society which inter a/ia is not a credit society. A credit society is defined in rule 2(h) to mean a society which has as its primary object the raising of funds to 1x. lent to its members. Rule 453 in sub-section (1) clause ( o) states that if a person is disqualified under the provisions of the Act or the rules or of the bye-laws of the society he shall not be eligible to be, or to continue as, a member of the committee or management The Deputy Registrar relied on bye-law No. I (Ta) of the\n\nFede; ation which renders a person to be ineligible to be. or to continue as a member of the committee of management if he is in default to the Federation or to .any other society. That bye-law further provides that if the society he represents is in default lie .be ineligible.\n\nThe Federation is not a credit society. The Federation does not have any loan transactions with the Cooperative Unions. The\n\nCooperative Unions did not have any loan transactions with the petitioner. The dues of the Cooperative Unions are in respect of supplies of goods by the Federation to the Cooperative Unions.\n\nThese are commercial transactions. These are commercial debts.\n\nPrice of goods supplied, if outstanding, does not constitute a Joan within the meaning of the bye-law. The impugned order proceeded emirely on an illegal basis and wrong interpretation of the bye-law. The order is bad.\n\nThe other question which. arises for consideration is whether the Registrar has power under section 128 of the Act to annul the resolutions of the society. The Registrar proceeded on the footing that the minutes of the meeting of the Federation held on 15 March, 1971 were not correctly recorded, The Deputy Registrar alleged thnt the, Federation did not comply with the provisions of bye-law No. lO(Cha) read with bye-law No. 11 of the Federation in regard to the conduct of the meeting. Bye-law No. 11 deals with recording the proceedings of the meeting. That bye-law s!ates that the minutes shall be recorded in the book lo be kept for the purpose and the minutes shall be signed by the person presiding an the meeting as well as by the Secfetary of the Federation. Bye-law No. IO(Cha) states that the Secretary shall be the Chief Executive officer of the Federation and subject to control and supervision of the Chairman and the committee of management as provided in the rules or the bye-law. It is also stated in bye-law No. 10( cha) that the Secretary shall inter alia sign and authenticate all documents in and on behalf of the Federation and is responsible for the proper maintenance of various books and records of the Federation.\n\nThe facts with regard to the meeting of the Federation held on 15 March, 1971 are that the Secretary wilfully absented hiinself at the meeting. The Federation therefore contended that the Secretary disobeyed the instructions. The Chairman under bye-law No. 10 is responsible for the control, supervision and efficient administration of the Federation. The Chairman appointed an elected Dim:tor Shri Prahlad Swarup, Advocate for the purpose of recording the minutes. Under section 118 of the Act no act of a cooperative society or any committee of management shall be deemed to be invalid by reason of the existence of any defect in the constitution inter alia of committee or in the appointment of an officer of a cooperative society or on the ground that such officer was disqualified for such aPJ'ointment. The meeting of the Federation on 15 March, 1971 was properly conducted. The Chairman rightly aooointed an elected Director to record the minutes in view of the wilful absence of the Secretary. Section 188 of the Act also protects the proceedings of the meeting. The Deputy Registrar acted illegally in annuling the resolutions of the Federation held on 15 March, 1971.\n\nFor these reasons the two orders of the Peputy Registrar dated 2 May, 1972 which are impeached by the petitioner are set aside and qua, hed .\n\n. Petitioner will be entitled to costs to be paid by the respondents The order dt. 12th October 1972 for payment of costs as Rs. 300 B is cancelled.\n\nG.C.", "total_entities": 84, "entities": [{"text": "VEERPAL SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "V eerpal Singh", "offset_not_found": false}}, {"text": "DEPUTY REGISTRAR, CO-OPERATIVE SOCIETIES,\n\nMEERUT & ORS", "label": "RESPONDENT", "start_char": 15, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "DEPUTY REGISTRAR, CO-OPERATIVE SOCIETIES, MEERUT & ORS", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 112, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "D. G. PALEKAR", "label": "JUDGE", "start_char": 123, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 138, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "S. N. DWIVEDI, JJ.", "label": "JUDGE", "start_char": 153, "end_char": 171, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Pradesh Co-operative Societies Act, 1965", "label": "STATUTE", "start_char": 181, "end_char": 221, "source": "regex", "metadata": {}}, {"text": "Ss. 38 and 128", "label": "PROVISION", "start_char": 223, "end_char": 237, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Co-operative Societies Act, 1965", "statute": "Pradesh Co-operative Societies Act, 1965"}}, {"text": "Bulandshahr Dis!¢tl Cooperative!\n\nFederation", "label": "ORG", "start_char": 801, "end_char": 845, "source": "ner", "metadata": {"in_sentence": "The petitioner was a delegate from the Oo-operative Federation of Unchagaon to the Bulandshahr Dis!¢tl Cooperative!"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 880, "end_char": 887, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Co-operative Societies Act, 1965", "statute": "Pradesh Co-operative Societies Act, 1965"}}, {"text": "s. 38", "label": "PROVISION", "start_char": 1113, "end_char": 1118, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Co-operative Societies Act, 1965", "statute": "Pradesh Co-operative Societies Act, 1965"}}, {"text": "Cooperatives Societies Act 1965", "label": "STATUTE", "start_char": 1131, "end_char": 1162, "source": "regex", "metadata": {}}, {"text": "s. 128", "label": "PROVISION", "start_char": 1353, "end_char": 1359, "source": "regex", "metadata": {"linked_statute_text": "Cooperatives Societies Act 1965", "statute": "Cooperatives Societies Act 1965"}}, {"text": "15th. March 1972", "label": "DATE", "start_char": 1426, "end_char": 1442, "source": "ner", "metadata": {"in_sentence": "The resolutions of the Committee of Management dated 15th."}}, {"text": "15th March, 1971", "label": "DATE", "start_char": 2573, "end_char": 2589, "source": "ner", "metadata": {"in_sentence": "435F-H; 436A-B]\n\n(2) The meeting of the Federation on 15th March, 1971 w., properly conducted."}}, {"text": "Section 188", "label": "PROVISION", "start_char": 2750, "end_char": 2761, "source": "regex", "metadata": {"statute": null}}, {"text": "VEERPAL V, DY. REGIS. CU-OP, SOCIETIES (Ray, J,) 431", "label": "JUDGE", "start_char": 2941, "end_char": 2993, "source": "ner", "metadata": {"in_sentence": "436G-lll\n\nVEERPAL V, DY."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3067, "end_char": 3077, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3086, "end_char": 3107, "source": "regex", "metadata": {}}, {"text": "A. P. Singh Chauhan", "label": "LAWYER", "start_char": 3153, "end_char": 3172, "source": "ner", "metadata": {"in_sentence": "A. P. Singh Chauhan and N. N. Sharma, for the petitioner."}}, {"text": "N. N. Sharma", "label": "LAWYER", "start_char": 3177, "end_char": 3189, "source": "ner", "metadata": {"in_sentence": "A. P. Singh Chauhan and N. N. Sharma, for the petitioner."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 3212, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 3226, "end_char": 3236, "source": "ner", "metadata": {"in_sentence": "A. K. Sen and 0."}}, {"text": "RAY", "label": "JUDGE", "start_char": 3303, "end_char": 3306, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, J.\n\nThe petitioner in this writ petition under Article 32 of the Constitution asks for quashing of orders of the respondent Deputy Registrar, Co-operative Societies, Meerut dated 2 May, 1972."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3355, "end_char": 3365, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Rajendra Singh", "label": "PETITIONER", "start_char": 3577, "end_char": 3591, "source": "ner", "metadata": {"in_sentence": "By the said order dated 2 May, 1972 the respondent Deputy Registrar removed Rajendra Singh, Yograj Singh and the petitioner V eerpal Singh from the Board of Directors of the District Co-operative Federation, Bulandshahr referred to as the Bulandshahr Federation and declared them to be disqualified to the office of the Directors of the Bulandshahr Federation for a period of three years from the date of the order.", "canonical_name": "Rajendra Singh"}}, {"text": "Yograj Singh", "label": "PETITIONER", "start_char": 3593, "end_char": 3605, "source": "ner", "metadata": {"in_sentence": "By the said order dated 2 May, 1972 the respondent Deputy Registrar removed Rajendra Singh, Yograj Singh and the petitioner V eerpal Singh from the Board of Directors of the District Co-operative Federation, Bulandshahr referred to as the Bulandshahr Federation and declared them to be disqualified to the office of the Directors of the Bulandshahr Federation for a period of three years from the date of the order.", "canonical_name": "Yograj Singh"}}, {"text": "V eerpal Singh", "label": "PETITIONER", "start_char": 3625, "end_char": 3639, "source": "ner", "metadata": {"in_sentence": "By the said order dated 2 May, 1972 the respondent Deputy Registrar removed Rajendra Singh, Yograj Singh and the petitioner V eerpal Singh from the Board of Directors of the District Co-operative Federation, Bulandshahr referred to as the Bulandshahr Federation and declared them to be disqualified to the office of the Directors of the Bulandshahr Federation for a period of three years from the date of the order.", "canonical_name": "V eerpal Singh"}}, {"text": "Bulandshahr Federation", "label": "ORG", "start_char": 3838, "end_char": 3860, "source": "ner", "metadata": {"in_sentence": "By the said order dated 2 May, 1972 the respondent Deputy Registrar removed Rajendra Singh, Yograj Singh and the petitioner V eerpal Singh from the Board of Directors of the District Co-operative Federation, Bulandshahr referred to as the Bulandshahr Federation and declared them to be disqualified to the office of the Directors of the Bulandshahr Federation for a period of three years from the date of the order."}}, {"text": "Rajendra Singh", "label": "PETITIONER", "start_char": 3918, "end_char": 3932, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation.", "canonical_name": "Rajendra Singh"}}, {"text": "Yograj Singh", "label": "PETITIONER", "start_char": 3934, "end_char": 3946, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation.", "canonical_name": "Yograj Singh"}}, {"text": "Veerpal Singh", "label": "PETITIONER", "start_char": 3966, "end_char": 3979, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation.", "canonical_name": "V eerpal Singh"}}, {"text": "Jarcha", "label": "GPE", "start_char": 4027, "end_char": 4033, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation."}}, {"text": "Raura", "label": "GPE", "start_char": 4035, "end_char": 4040, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation."}}, {"text": "Unchagaon", "label": "GPE", "start_char": 4045, "end_char": 4054, "source": "ner", "metadata": {"in_sentence": "Rajendra Singh, Yograj Singh and the petitioner Veerpal Singh were delegates from the Co-operative Unions of Jarcha, Raura and Unchagaon respectively to the Bulandshahr Federation."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 4318, "end_char": 4331, "source": "ner", "metadata": {"in_sentence": "There was an inspection in the month of February, 1971 by the Deputy Registrar, Co-operative Societies, Uttar Pradesh aboun the constitution, working and financial condition of the Bulandshahr Fede-."}}, {"text": "Bulandshahr Fede-. ration", "label": "ORG", "start_char": 4395, "end_char": 4420, "source": "ner", "metadata": {"in_sentence": "There was an inspection in the month of February, 1971 by the Deputy Registrar, Co-operative Societies, Uttar Pradesh aboun the constitution, working and financial condition of the Bulandshahr Fede-."}}, {"text": "Sehkari Sangh Raura", "label": "ORG", "start_char": 4509, "end_char": 4528, "source": "ner", "metadata": {"in_sentence": "Sehkari Sangh Raura, Sehkari Sangh Jarcha and the Co-operative Union Unchagaon were defaulters in respect of their dues to the Bulandshahr Federation."}}, {"text": "Sehkari Sangh Jarcha", "label": "ORG", "start_char": 4530, "end_char": 4550, "source": "ner", "metadata": {"in_sentence": "Sehkari Sangh Raura, Sehkari Sangh Jarcha and the Co-operative Union Unchagaon were defaulters in respect of their dues to the Bulandshahr Federation."}}, {"text": "Co-operative Union Unchagaon", "label": "ORG", "start_char": 4559, "end_char": 4587, "source": "ner", "metadata": {"in_sentence": "Sehkari Sangh Raura, Sehkari Sangh Jarcha and the Co-operative Union Unchagaon were defaulters in respect of their dues to the Bulandshahr Federation."}}, {"text": "Bulandshahr Federaion", "label": "ORG", "start_char": 4889, "end_char": 4910, "source": "ner", "metadata": {"in_sentence": "The annual general meeting of the Bulandshahr Federaion in spite of such disqualification of those three delegates elected them as Directors of the Bulandshahr Federation."}}, {"text": "Uttar Pradesh Co-operative Societies Act 1965", "label": "STATUTE", "start_char": 5436, "end_char": 5481, "source": "regex", "metadata": {}}, {"text": "SUI'REME", "label": "JUDGE", "start_char": 5574, "end_char": 5582, "source": "ner", "metadata": {"in_sentence": ",, \" 432\n\nSUI'REME, COURT REPORTS Ll973] J. .s.c, K.\n\nThe Federation did not comply with the requirements indicated in the report of the inspection note."}}, {"text": "20 March, 1970", "label": "DATE", "start_char": 5962, "end_char": 5976, "source": "ner", "metadata": {"in_sentence": "The Bulandshahr Federation held its annual general meeting on 20 March, 1970 .. At the annual general meeting the committee of management was elected."}}, {"text": "L. N. Batra", "label": "JUDGE", "start_char": 6781, "end_char": 6792, "source": "ner", "metadata": {"in_sentence": "of management of the Bulandshahr Federation recorded that Shri L. N. Batra, Sub- Divisional Magistrate, Khurja as a Scrutiny Office~ in his judgment dated 5 March 1970 in _connection, with the nomination papers of Yograj Singh, Rajendra Singh stated that they were not defaulters and they were competent for , membership of the Board of\n\nDiretors."}}, {"text": "ograj Singh", "label": "PETITIONER", "start_char": 7199, "end_char": 7210, "source": "ner", "metadata": {"in_sentence": "The committre of management of the Bulandshahr Federation further resolved that none of the three persons namely, the petitioner, )' ograj Singh and Rajendra Singh had pe1sonally taken any loan from the Bulandshahr Federation .", "canonical_name": "Yograj Singh"}}, {"text": "petitioncr,'Yograj Singh", "label": "PETITIONER", "start_char": 7496, "end_char": 7520, "source": "ner", "metadata": {"in_sentence": "The Committee of Management therefore unanimously decided that the petitioncr,'Yograj Singh and Rajendra Singh were not disqualified to be members of the committee of management of the Bulandshahr Federation."}}, {"text": "Yashpal Singh", "label": "OTHER_PERSON", "start_char": 7702, "end_char": 7715, "source": "ner", "metadata": {"in_sentence": "The committee of management appointed a committee consisting of Yashpal Singh and Prahlad Swarup for making enquiry in respect' of amounts outstanding against the Unions atJarcha, Raura and Unchagaon as mentioned in the inspection note."}}, {"text": "Prahlad Swarup", "label": "OTHER_PERSON", "start_char": 7720, "end_char": 7734, "source": "ner", "metadata": {"in_sentence": "The committee of management appointed a committee consisting of Yashpal Singh and Prahlad Swarup for making enquiry in respect' of amounts outstanding against the Unions atJarcha, Raura and Unchagaon as mentioned in the inspection note.", "canonical_name": "Prahlad Swarup"}}, {"text": "atJarcha", "label": "GPE", "start_char": 7808, "end_char": 7816, "source": "ner", "metadata": {"in_sentence": "The committee of management appointed a committee consisting of Yashpal Singh and Prahlad Swarup for making enquiry in respect' of amounts outstanding against the Unions atJarcha, Raura and Unchagaon as mentioned in the inspection note."}}, {"text": "section 38", "label": "PROVISION", "start_char": 8076, "end_char": 8086, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9373, "end_char": 9384, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 9417, "end_char": 9437, "source": "ner", "metadata": {"in_sentence": ", Y, ograj Singh therea[tcr made an application under Article 226 of: the Constitution before the Allahabad High Court."}}, {"text": "10/15 July, 1971", "label": "DATE", "start_char": 9469, "end_char": 9485, "source": "ner", "metadata": {"in_sentence": "and impeached the order dated 10/15 July, 1971 removing him from the."}}, {"text": "High Court at Allahabad", "label": "COURT", "start_char": 9568, "end_char": 9591, "source": "ner", "metadata": {"in_sentence": "The High Court at Allahabad by its judgment dated 21 February, 1972 quashed the order dated 10/15 July, 1971 by which the Deputy Registrar had removed Yograj Singh from the committee of management."}}, {"text": "21 February, 1972", "label": "DATE", "start_char": 9614, "end_char": 9631, "source": "ner", "metadata": {"in_sentence": "The High Court at Allahabad by its judgment dated 21 February, 1972 quashed the order dated 10/15 July, 1971 by which the Deputy Registrar had removed Yograj Singh from the committee of management."}}, {"text": "section 128", "label": "PROVISION", "start_char": 10299, "end_char": 10310, "source": "regex", "metadata": {"statute": null}}, {"text": "section 38", "label": "PROVISION", "start_char": 10543, "end_char": 10553, "source": "regex", "metadata": {"statute": null}}, {"text": "29 April, '- 1972", "label": "DATE", "start_char": 10828, "end_char": 10845, "source": "ner", "metadata": {"in_sentence": "The petitioner on 24 March, 1972 and again on 29 April, '- 1972 sent two communications to the Deputy Registrar, Cooperative Societies."}}, {"text": "Yograj", "label": "PETITIONER", "start_char": 11063, "end_char": 11069, "source": "ner", "metadata": {"in_sentence": "These two communications were in answer to the notice dated 20 March, 1972 to show cause as to why the resolu-· tion reinstating the petitjoner, Yograj , Singh and Rajendra Singh should not be annulled and also as to why they should not be\n\nremoved.", "canonical_name": "Yograj Singh"}}, {"text": "Singh", "label": "OTHER_PERSON", "start_char": 11072, "end_char": 11077, "source": "ner", "metadata": {"in_sentence": "These two communications were in answer to the notice dated 20 March, 1972 to show cause as to why the resolu-· tion reinstating the petitjoner, Yograj , Singh and Rajendra Singh should not be annulled and also as to why they should not be\n\nremoved."}}, {"text": "20 March 1972", "label": "DATE", "start_char": 11188, "end_char": 11201, "source": "ner", "metadata": {"in_sentence": "In the notice dated 20 March 1972 for annulment of the proceedings of the committee of management of the Bulandshahr Federation the Deputy Re.gistrar alleged that the proceedings of the committee were no~ in accordance with the provisions of bye-law No."}}, {"text": "section 128", "label": "PROVISION", "start_char": 11545, "end_char": 11556, "source": "regex", "metadata": {"statute": null}}, {"text": "Tara Chand Sharma", "label": "OTHER_PERSON", "start_char": 11770, "end_char": 11787, "source": "ner", "metadata": {"in_sentence": "The petitioner further stated that the Secretary Tara Chand Sharma wilfully absented himself from the meeting and was therefore a disobedient Secretary who did not carry on the work under the supervision and guidance of the Chairman.", "canonical_name": "Tara Chand Sharma"}}, {"text": "15 March, 19.72", "label": "DATE", "start_char": 12028, "end_char": 12043, "source": "ner", "metadata": {"in_sentence": "The petitioner further stated that the procedure at the meeting held on 15 March, 19.72 was lawful."}}, {"text": "Ch. Shahmal Singh", "label": "OTHER_PERSON", "start_char": 12110, "end_char": 12127, "source": "ner", "metadata": {"in_sentence": "The meeting was conducted by the.acting Chairman Shri Ch."}}, {"text": "Prahlad Swarap", "label": "OTHER_PERSON", "start_char": 12265, "end_char": 12279, "source": "ner", "metadata": {"in_sentence": "The proceedings of the meeting were recorded by an elected Director Shri Prahlad Swarap, Advocate who was duly appointed for that purpose Section\n\n118 of the Act was relied on by the petitioner to contend that no act of a committee of management shall be deemed t.o be invalid by reason of any alleged defect in the appointment of an officer or on the ground that such officer was disqualified for such appointment or election.", "canonical_name": "Prahlad Swarup"}}, {"text": "Section\n\n118", "label": "PROVISION", "start_char": 12330, "end_char": 12342, "source": "regex", "metadata": {"statute": null}}, {"text": "10 April 1972", "label": "DATE", "start_char": 12720, "end_char": 12733, "source": "ner", "metadata": {"in_sentence": "The petitioner alleged that the Bulandshahr Federation directed the Secretary Tara Chand Sharma on\n\n10 April 1972 to summon the meeting of the committee of management of the Bulandshahr Federation to consider the pros and cons of the notice dated 20 March, 1972 issued by the Deputy\n\nRegistar."}}, {"text": "Tara Chand Shanna", "label": "OTHER_PERSON", "start_char": 12950, "end_char": 12967, "source": "ner", "metadata": {"in_sentence": "The petitioner further alleged that Tara Chand Shanna was acting under the directions of the Deputy Registrar, Cooperative Societies.", "canonical_name": "Tara Chand Sharma"}}, {"text": "section 38", "label": "PROVISION", "start_char": 13350, "end_char": 13360, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 13521, "end_char": 13531, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar Pradesh Cooperative Societies Rules 1961", "label": "STATUTE", "start_char": 13979, "end_char": 14025, "source": "regex", "metadata": {}}, {"text": "Raura", "label": "WITNESS", "start_char": 14769, "end_char": 14774, "source": "ner", "metadata": {"in_sentence": "The allegations made by the Deputy Regist; rar were that the Sehkari Sanghs of Jarcha, Raura and Unchagaon were defaulters to the Federation for the sums of Rs."}}, {"text": "Unchagaon", "label": "OTHER_PERSON", "start_char": 14779, "end_char": 14788, "source": "ner", "metadata": {"in_sentence": "The allegations made by the Deputy Regist; rar were that the Sehkari Sanghs of Jarcha, Raura and Unchagaon were defaulters to the Federation for the sums of Rs."}}, {"text": "10 February, 1971", "label": "DATE", "start_char": 14969, "end_char": 14986, "source": "ner", "metadata": {"in_sentence": "515.35 respectively for a period exceeding six months as indicated in the inspection report dated 10 February, 1971."}}, {"text": "22 July, 1971", "label": "DATE", "start_char": 15218, "end_char": 15231, "source": "ner", "metadata": {"in_sentence": "The Secretary of the Federation wrote a letter dated 22 July, 1971 to the Assistant Registrar, Cooperative Societies and stated that the three cooperative Unions at Jarcha, Raura and Unchagaon owed money to the Federation in respect of supplies of fertilisers by the Federation to those three Unions."}}, {"text": "I archa", "label": "GPE", "start_char": 15567, "end_char": 15574, "source": "ner", "metadata": {"in_sentence": "The Secretary of the Federation also gave a certificate that none of the three cooperative Unions at I archa, Raura and Unchagaon ever took any loan from the Federation."}}, {"text": "section 128", "label": "PROVISION", "start_char": 17441, "end_char": 17452, "source": "regex", "metadata": {"statute": null}}, {"text": "15 March, 1971", "label": "DATE", "start_char": 17602, "end_char": 17616, "source": "ner", "metadata": {"in_sentence": "The Registrar proceeded on the footing that the minutes of the meeting of the Federation held on 15 March, 1971 were not correctly recorded, The Deputy Registrar alleged thnt the, Federation did not comply with the provisions of bye-law No."}}, {"text": "section 118", "label": "PROVISION", "start_char": 19063, "end_char": 19074, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 188", "label": "PROVISION", "start_char": 19593, "end_char": 19604, "source": "regex", "metadata": {"statute": null}}, {"text": "2 May, 1972", "label": "DATE", "start_char": 19833, "end_char": 19844, "source": "ner", "metadata": {"in_sentence": "For these reasons the two orders of the Peputy Registrar dated 2 May, 1972 which are impeached by the petitioner are set aside and qua, hed ."}}, {"text": "12th October 1972", "label": "DATE", "start_char": 19996, "end_char": 20013, "source": "ner", "metadata": {"in_sentence": "12th October 1972 for payment of costs as Rs."}}]}
{"document_id": "1973_3_438_447_EN", "year": 1973, "text": "RAMANLAL BHOGILAL SHAH AND ANOTHER A v.\n\nD. K. GUHA AND OTHERS\n\nJanuary 24, 1973\n\n{S. M. SIKRI, C. J., A. N, RAY, D. G. PALEKAR, M. H. BEG AND\n\nS. N. DWIVEDI, JJ.J B Constitution of India, Art. 20(3)-Whether accused mentioned in an F.J.R. is bound to appear before Enforcement officer to give evidence In\n\nconnection with the same offence.\n\nThe point of law being same in both the writ petitions, the facts of writ petition No. 164 of 1972 are as follows:-\n\nThe p, etiti<>i>er was the General Manager of United Comm.\n\nBan~ till January 17, 1968 when he became its Chainmn and wholetime Director and after nationalisation of the bank, he was appointed Custodian thereof.\n\nIn 1966, the United Comm.\n\nBank had booked a forward .exch-.inge contract for Htndustan Motors for £ 9,32,617 at th<! rate -0f Is. 529/32d. per rupee.\n\nThereafter, the rupee was devalued and on May 24, 1971 the petitioner was served with summons under s. 19-F of tju, Foreign Exchange (Regulation) Act, 1947 to give evidence in an enquiry held by respondent No. 1 into certain offences under the Foreign Exchange Act. The petitioner was examined on June 3, 16 .and 17, 1971.\n\nAccording to the petitioner, the entire examination these days related to the booking by the bank of the said forward exchange , contract.\n\nOn August 31, 1971, the petitioner was arrested under s. 19B of the Foreign Exchange Act. Sub-s. 1 of S . 19B of the Act provides that \"if any officer of Enforcement .... has reason to believe that any person in India etc., has been guilty of an offo.nce punishable under the Foreign Exchange Act, he may arl'est such person and shall. as soon .as may be, inform him of the ground of such arrest.\" Sub.sec. (2) p~\n\nvides that every person arrested under sub section ( 1) shall, without necessa'ry delay, be take, tl to a Magistrate. Sub-s. (3) empowers the -0fficer concerned to release an arrested person on bail and he has the same powers and as that of an O/c of a police station.\n\nThe grounds, -served on the petitioner, for the offence under s. 4(2), and uinder s. 22 of the Act punishable under s. 23, are elaborate.\n\nParas 31 to 40 of the grounds of arrest are inter alia, :-conversion of pound sterling not at the prescribed rate, false information fur, oished to the Reserve Bank in contravention of Sec. -22 of the Act etc.\n\n[The question arose whether after these grounds had been served <>n the petitioner, it ciluld be said that he was a person accused of an off-e within Art. 20(3) of the Constitution].\n\nTh, e petitioner was later produced before the Chief PresideQCy Magistrate who released him on bail with a direction that he should .contact the investigating officer from time to time.\n\nThereafter, an F. I. R. was recorded under s. 154 Cr .P .C. by the• D.S. P., C. B. I., New O,, lhi and an order was obtained from the 438\n\nChief Presidency Magistrate Calcutta permitting the il>vestigation to be made under s.155(2). Cr. P.C .. The offences alleged in the F.I.R. are s.120B read with s.420 I.P.C. and under s.4(2) read with •· 23(1) (b) of the Exchange Act.\n\nThe names and addreases of the accused were given as tlie Management and other o111cers of the\n\nUnitd Commercial Bllll!k and the Management and otlloers of Hindustan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19F of the Exchange Act to appear before the Enfdroement Directorate and to give evidence regarding the transaction of Exchange Contract booked from Hilndustan Motors Ltd.\n\nAfter objecting to appear before the Enforcement Directorate as .\n\nWitness the petitioner filed the present writ petition before this Court.\n\nIt was contended by the petitioner that after the Enforcement officer had xamined the petitionr and put his CO!llClusions in the grounds of afrest, the petitioner was definitely a \"person accused of an offence\" within the meaning of Art. 20(3) of the Constitution of India and at any rate, the petitioner was accused of an offence when the F .. I. R, was recerded and therefore. the summons dt.\n\nApril 17, 1972 was illegal.\n\nAllowin~ the petition, . HELD : (i) It is wll settled that with the lodging of a First Informati01' .Report a person is accused of an offence Within the meaning of Art .. 20(3). [445E-Fl . Ramesh Chandra Mehta v. State of West Bengal [1969] 2 S.C.R. 461 Raja Narayan/al Brlslla/ v, Manack Phiroz Mistry [1961] 1 S.C.R.\n\n417 and M. P. Sharma v. Satish Chandra, [1954] S.C.R. 1077, re forred to.\n\n(ii) Although the petitioner is a person accused of an offence within thlo meaning of Art. 20(3), the only protection that Art. 20(3) gives to him is that he caninot be compelled to be a witness against himself; but it.his does not mean that he need not give information regarding matters whic'h do J>Ot tend to incriminate him.\n\n[4460-H] State of Bombay v, Kathi Kalu Oghad, [1962]\n\n3 S .C.R. 1032,\n\nrefed to. l'herefore in the present case the summons must not be set aside.\n\nThe petitio; ner must appear before the enforcement Directorate and answer such questions as do not tend to incriminate him. [447C-D]\n\nORIGINAL JURISDICTION.: Writ Petitions Nos. 164 and 165 of 1972.\n\nPetitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights.\n\nA. K. Sen, (in W.P. No. 164) B. Sen, (in W.P. No. 165) Krishna Sen, S. R. Agarwala and R. K. Khanna, for the petitioners.\n\nF. S. Nariman, Additional Solicitor-General of India and S. P.\n\nNayar, for the respondents.\n\nThe Judgment of the Court was delibered by SIKRI, C.J. The same point of law arises in both the writ petitions and it will suffice if facts in writ petition No. 164 of 1972 are set out. The petitioner, Ramanlal Bhogilal Shah, was the Gene-\n\nSUPREME COURT REPORTS (1973] 3 S.Cl.R,\n\nral Manager ol United Commercial Bank Ltd. till January 17, 1968 when he became the Chairman and wholetime Director of the said bank. Upon nationalisation of the bank, the petitioner was appointed Custodian thereof and he continued as Custodian till September 1, 1971.\n\nOn June 4, 1966 the United Commercial Bank had booked a forward exchange contract for Hindustan Motors for £ 9,32,617 at the rate of ls. 529/32d, per rupee. On June 6, 1966, the rupee was devalued. On May 24, 1971 the petitioner was served with summons under s. 19-F of the Foreign Exchange (Regulation) Act, 1947-hereinafter referred to as the Exchange Act to give evidence in the enquiry which Shri D. K. Guha, Deputy Director, Enforcement Directorate, Was making into certain offences under the Exchange Act. The petitioner was examined on June 3, 1971, June 16, 1971 and June 17, 1971.\n\nAccording to the petitioner, the entire examination on the said dates related to the booking by the United CommercialBank of the aforesaid forward exchange contract dated June 4, 1966. On August 31, 1971, the petitioner was arrested under s. 19B of the Exchange Act. Sub-section ( 1) of s. 19B provides that \"if any officer of Enforcement. . . . . has reason to believe that any person\n\nin India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act, he may arrest 'such person and shall, as soon as may be, inform him of the grounds for such arrest.\" Sub-section (2) provides that \"every person arrested under sub-section ( 1) shall, without unnecessary delay, be taken to a Magistrate.\" Sub-s. (3) empowered an officer of Enforcement arresting any person to release such person on ball or otherwise. In this connection he has the same powers and Is sµbject to the same provisions as the officer-in-charge of a polfoe litation.\n\nThe grounds of arrest served on the petitioner are elaborate.\n\nThese give detailed reasons why the enforcement officer had .reasons to believe that the petitioner had been guilty of an offence under\n\ns. 4(2) and under s. 22 of the Exchange Act punishable under s. 23 thereof. We may reproduce paras 31 to 40 of the grtl\\inds of arrest. ·\n\n\"31. AND WHEREAS by such criminal acts the Bank converted pound sterling not at the rate prescribed by the Foreign Exchange Dealers Association of India effective from 8-6-66 as aforesaid but at the rate of Rs. 1-5 29/32d.Re. 1 during the period of 8-7-66 to 3-3-67 on the total amount of £ 9,32,617-0-od;\n\n32. AND WHEREAS the aforesaid amount of £ 9,32,617-0-0d has been converted into Indian currency at rates other than the rates authorised by the Reserve Bank of India;\n\n33. AND WHEREAS such unauthorised conversion has been made without fulfilling the condition prescribed in Section XXVIII of the Exchange Control Manual published by the Reserve Bank of India as aforesaid.\n\n34. AND WHEREAS such conversion of pound sterling into Indian currencies has been made in contravention of Section 4(2) of the said Act;\n\n35. AND WHEREAS false information has been furnished to the Reserve Bank of India thereby contravening the provisions of Section 22 of the said Act;\n\n36. AND WHEREAS the aforesaid contraventions, have been committed by the said Bank or have taken place with the consent of the said R. B. Sha\\!;\n\n37. AND WHEREAS at the time of the aforesaid contraventions were committed, the said R. B. Shah was in charge of, or was responsible to the United Commercial Bank Limited for the conduct of the business of the said Bank;\n\n38. AND WHEREAS lhe said R. B. Shah failed tQ prove in course of his statements made under Sec!iQll\n\n19F of the said Act before Shri D. K. Guha, Deputy Director of Enforcement that the contravention tooll:\n\nplace without. his knowledge or that he exercised all due diligence to prevent the aforesaid contravention, as\n\nreqltired under Section 23C of the said Act.\n\n39. AND WHEREAS, in view of the aforesaid facts 1111d circumstances, I, Onkar Nath Chattopadhyay, Enforcement Officer, Enforcement Directorate, l)epaJitment ot Personnel, Cabinet Secretariat, Government of India, being an officer of Enforcement authorised .by the Central Government to exercise 'the powers under Section 19B of the said Act, have reason to believe that the said R. B. Shah in India has been guilty of oll'ences under Section 4(2) and under Section 22 of the said Act punishable under Section 23 of the said Act; ·\n\n40. NOW, THEREFORE, I arrest the said R .. B. • Shah on the grounds stated herein above, todav the 3 ls t August, 1971 at 10.35 a.m. under Section 19E{i) of the Foreign Exchange Regulation Act, 1947.\" The question arises with which we will presently deal with, whether after those grounds have been served on the petitioner,\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\nit could be said 1hat he was a person accused of an offence within art. 20(3) of the Constitution.\n\nThe petitioner was produced before the Chief Presidency Magistrate, Calcutta, on August 31, 1971, who released him on bail of Rs. 10,000 with the direction that the petitioner should con\n\ntact the Investigating Officer every alternate day during the next two weeks and thereafter as and when called for.\n\nOn September 6, 1971, the Chief Presidency Magistrate, Calcutta, recorded : ,; Both accused are on C.B. and present. Perused report submitted by 1.0. 1.0. prays for three months time for submitting further report. Time allowed till 6-12-71 for submission of report.\"\n\nOn December 6, 1971, the order is recorded as follows :\n\n\"Both accused are on C.B. and present.\n\nPersued report submitted by Enforcement Directorate. Further three\" months time. Time allowed till 6-3-72 for compl~ tion of investigation. 1.0. is directed to expedite and file complaint, if any, at an early date.\"\n\nOn March 6, 1972, it was inter alia ordered : \". , ... Since no regular complaint has till now been filed, personal exemption prayed for is allowed.'' The order further proceeds :\n\n_ \"Considered I.O.'s remand report. He submits that the matter is pending before the Supreme Court and concerned documents remain sealed in that connection.\n\nHe further says complaint will be filed soon after the matter .is disposed by the Supreme Court. Considering such 'aspects of the qµestion 1.0. is. allowed time till 5-6-72 for a report about progress of investigation and submission of regular complaint, if any, against the accused persons.'' It is alleged in the petition that \"pursuant to enquiries made in this behalf, your petitioner has come to learn that the Supreme Court proceedings referred to by the respondent No. 4 before the C.-'hief Presidency Magistrate, Calcutta, as recorded in his order dated 6th March 1972 arose out of a writ petition filed by Hindusthan Motors Ltd. before the Hon'ble High Court at Cakutta challenging inter a/ia the search at the premises of Hindusthan Motors Ltd. conducted by the Enforcement Directorate in or about October 1969 and the seizure of documents as a result\n\nthereof.\" In the course Of this enquiry the petitioner learnt that a case had. been registered on a First Information Report dated\n\nNovember 9, 1971, recorded under s. 154 of the Criminal Procedure Code and an order dated November 25,1971 had been obtained from the Chief Presidency Magistrate, Calcutta, permitting the investigation to be made under s. 155(2) of the Code of Criminal Procedure, 'This First Information Report des with the forward exchange contract purported to have been entered on June 4, 1966 by M/s Hindusthan Motors Ltd. and the United Commercial Bank Ltd. The offences alleged in the first Information Report are s. 120B read with s. 420 I.P.C., and urtder s. (2) read with s. 23(1) (b) of the Exchange Act, and the names and addrs.1es of the accused are given as the Management and other officers of the United Commercial Bank and the Management and officers of the Hindusthan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19-F of the Exchange Act tei appear before the Deputy Director, Enforcement Directorate, on April 28, 1972 to give evidence relating to the transaction of exchange contract booked from Hindusthan Motors Ltd. on June 4, 1966. The petitioner wrote to the Deputy Director submitting that the summons was violative of art. 20(3) of the Constitution: In this conneetion he submitted as follows :\n\n\"I remind you that after examining on the 3rd June, 1971, 16th June. 1971and17th June 1971 proceedings have been initiated atia!was arrested on the 3 lst August, 1971 and in the grounds of arrest .one of the grounds of accusation mentioned is the transaction referred to by you in the summons.\"\n\nThe petitioner requested the Deputy Director to withdraw !he summons.\n\nOn April 22, 1972 the Deputy Director informed the petitioner that the contentions had no substance at all. He further informed the petitioner that the summons issiied on April 17, 1972 could not be withdrawn and requested the petitioner to comply with the name.\n\nTI1e petitioner thereupon filed the present petition on April 27, 1972.\n\nThe learned counsel for the petitioner, Mr. A. K. Sen, contends that on the facts given above the petitioner fell within the description of a \"person accused of an offence\" within the meaning of art. 20(3). He contended that after the Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest, the petitioner was definitely accused of an offence under the Exchange Act. He next contends that at any rate, the petitioner was accused of an offence when the J:'.irst l3-L 796Sup.C.l./73\n\nSUPREME COURT REPORTS\n\n\nInformation Report was recorded under s. 154, Cr.\n\nP.C., by Shri J. N. Prabhakar, Deputy Superintendent of Police, Central\n\nBureu of Investigation, Special Police Investigation Unit, New\n\nDelhi.\n\nThe learned Additional Solicitor General says that tb.e first point is concluded by the decision of this Court in Romesh Chandra, Mehta v. State of West Bengal.(1') He strongly relies on the following passage at p. 4 79 :\n\n\"It was strenuously urged that under s. 104 of the Customs Act, 1962, the Customs Officer may arrest a person only if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under s. 135 and not otherwise and he is bound to inform such person of the grounds of his arrest. Arrest of tlle person who is guilty of the offence punishable under.'s. 135 and information to be given to him amount, it was contended, to a formal accusation of an offence and in any case the person who has been arrested and who have been informed of the nature of the infraction committed by him stands in the character of an accused person.\n\nWe are unable to agree with that contention. Section\n\n104(1) only prescribes the conditions in which the power of arrest may be exercised. The officer must have reason to believe that a person has been guilty of an offence punishable under s. 135, otherwise he cannot arrest such person. But by informing such person of the grounds of his arrest the Customs Officer does not formally accuse him with the commission of an offence.\n\nArrest and detention are only for the purpose of holding effectively an inquiry under s. 107 and 108 of the Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalities. At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordi• narily after adjuding penalty and confiscation of goods or without doing so, if the Customs officer forms an opinion that the offender should be prosecuted he may prefer a complaint in the manner provided under s. 137 with the sanction of the Collector of Customs and until .a complaint is so filed the person against whom an inquiry is commenced under the Customs Act does not stand in the character of a person accused of an offence under s. 135.\n\n\nThe learned counsel for the petitioner, however, contends that the facts here are different. He says that under the Exchange Act the position is slightly different. He further says tha~ in Romesh Mehta's case('') no enquiry had been made while in the present case an enquiry under s. l 9F had been made and the Deputy !Director had come to a definite conclusion that the petitioner was guilty of an offence. He further says that the next steri would be an enquiry under s. 23 of the Exchange Act which might result in a penalty under s. 23(1)(a) or the case being sent to a Court for trial. He says that as far as the enquiry under s. 23(1 )(a) is concerned, it is an enquiry in respect o~ an offence and no further charge or complaint is necessary before undenaking the enquiry.\n\nHe contends that the protection under art. 20(3) extends not only to criminal trials, but also to trials of all offences under the Exchange Act because for the same offence one person may be convicted and penalty levied under s. 23(l)(a) or convicted by a Court and sentenced to imprisonment.\n\nThese aspects have not been considered by this Court i11 any case which has been brought to our notice, but we do not think that it is necessary to dispose of these contentions because \"e arc of the .opinion that the second point raised by Mr. A.\n\nSen must prevail.\n\nIt is well settled that with the lodging of a' first information\n\nrepor~ a person is accused of an offence within the meaning of art.\n\n20(3). In M. P, Sharma v. Satish Chandra(') where search warrants were issued against persons who had been included in the category of accused in the first information report, Jagannadhadas, J., obserYed at p. 1088 :\n\n\"Nor is there any reason to think that the Protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) .is \"to be a witness' and not to \"appear as a witness\"; It follows that the protection afforded to an accused in so far as it is related to the phrase \"to .be a witness\" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in t)lis case.\"\n\n(!) !19691 2 S.C.R. 46L\n\n(Z} [19541 S.C.R. 1011.\n\n446 SUPREME COURT REPORiS\n\n\nJn Raja Narayan/al Bansilal v. Maneck Phiroz Mistry (') it was observed :\n\n\"Similarly, for invoking the constitutional right against testimonial compulsion guaranteed under Art'. 20(3) it must appear that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission of an offence which in the normal course may result in prosecution.\"\n\nIn Ramesh Chand Mehta v. State of West Bengal(') Shah, J., after reviewing a number of authorities, observed at p. 4 72 :\n\n\"Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to fnvestigate it, or when a complaint is made relating to the commission of an offence before a\n\nMagistrnte competent to try or send to another D MagislnM for trial of the offence.\"\n\nThe Additional Solicitor General says that the petitioner had not been specifically named as accused in the First Information Report and, therefore, he is not entitled oo the protection under Art. 20(3). We are unable to agree with him in this respect. The petitioner was the General Manager of the United Commercial I.\n\nBank and it was alleed in the grounds of arrest that the petitioner was in charge of, or was responsible to the United Commercial Bank Ltd. for the conduct of the business of the said Bank, and that he failed to prov_e _in course of his statements made under s. 19F before Shri D. K. Guba, Deputy Director of Enforcement, that the contravention took pfaee withqu~ his knowledge or that f he exercised all due diligence to prevenf the aforesaid contraven tion, as required under s. 23C of the Exchange Act.\n\nIn view of these allegations i~ is idle to cqntend that the petitioner was nqt included in the priqn \"the management and other qfljcs of the U~~ CO~tj~ Bll1!1c Ltd.\" V!e. have r. already mentioned that m the Fust Inf91lll811i!>D Report 1t is lbe \" si@eforwarit i:change Gn\\traet which is titil sul>iectmll~ ol chll1\"ge.\n\nAlthough we held that the ., etitioncr is a person accuaod of an oll'encc within the meaning of art. 20(3), the only protection that art.20(3) gives to him is that he cannot be compelled to be H a witness against himself. But this does not mean that he nCed not give information regarding matters which do not tend to lncriml-\n\n(1) [1961] 1S.C.R.417; 438.\n\n(I) [1969J 2'5.C.R. 461.\n\nnate him. This Court observed in State of Bombay v. Kathi Kalu Oghad('1) as follows :\n\n\"In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of wjiich comes within th~ prohibition of the constitutional provision, it must l>e pf such a cliaracter that by itself it shcn!ld have the ten<le11cy' pf ffici'imim\\ting the\n\naccimi~. if ii!\\! also q( actully doing so .. 'Ill other words. it s!\\pilld pe' a s!l)teffieilt which ni~~ !ll@ c~ gains!\n\nhe ..\n\n1 :f.cuse4' prson alteast prol>ple, considered by\n\n1te +·\n\n'.fherfpre we are uµabli: to set asi4e ~~ sulllmons, The petilirmer ffi1lsl appear befor~ tl)e J?ep1Jl¥ 1J,1rector 311<! qswer such 8., IJestions as do qot tencj IP 1µcr11qjµat~ im, as xpla1qed by this t,.:pµrt. .\n\nThe pe\\itioq is &Fcor<linsly iillowaj ta tjle extent that it is clraj ~t tjie titionef is a peiln accus~4 pf n olfnce withi!l art. ~Q(3). The fcts jll Writ Petitioll Np. 165 of 197211re similar and the\n\n~; unc decl:iraljon is given.\n\nPet#jpn allowed.\n\n(I) (1962) 3 S.C.R. 10 32.", "total_entities": 136, "entities": [{"text": "RAMANLAL BHOGILAL SHAH AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "RAMANLAL BHOGILAL SHAH AND ANOTHER", "offset_not_found": false}}, {"text": "D. K. GUHA AND OTHERS", "label": "RESPONDENT", "start_char": 41, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "D. K. GUHA AND OTHERS", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 83, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI*", "offset_not_found": false}}, {"text": "RAY", "label": "JUDGE", "start_char": 109, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "D. G. PALEKAR", "label": "JUDGE", "start_char": 114, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 129, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "S. N. DWIVEDI, JJ", "label": "JUDGE", "start_char": 144, "end_char": 161, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 166, "end_char": 187, "source": "regex", "metadata": {}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 189, "end_char": 199, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Htndustan Motors", "label": "ORG", "start_char": 749, "end_char": 765, "source": "ner", "metadata": {"in_sentence": "Bank had booked a forward .exch-.inge contract for Htndustan Motors for £ 9,32,617 at th<!"}}, {"text": "May 24, 1971", "label": "DATE", "start_char": 865, "end_char": 877, "source": "ner", "metadata": {"in_sentence": "Thereafter, the rupee was devalued and on May 24, 1971 the petitioner was served with summons under s. 19-F of tju, Foreign Exchange (Regulation) Act, 1947 to give evidence in an enquiry held by respondent No."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 923, "end_char": 928, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "June 3, 16 .and 17, 1971", "label": "DATE", "start_char": 1120, "end_char": 1144, "source": "ner", "metadata": {"in_sentence": "The petitioner was examined on June 3, 16 .and 17, 1971."}}, {"text": "August 31, 1971", "label": "DATE", "start_char": 1290, "end_char": 1305, "source": "ner", "metadata": {"in_sentence": "On August 31, 1971, the petitioner was arrested under s. 19B of the Foreign Exchange Act."}}, {"text": "s. 19B", "label": "PROVISION", "start_char": 1341, "end_char": 1347, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 1381, "end_char": 1385, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 1499, "end_char": 1504, "source": "ner", "metadata": {"in_sentence": "19B of the Act provides that \"if any officer of Enforcement .... has reason to believe that any person in India etc.,"}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 2034, "end_char": 2041, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 2054, "end_char": 2059, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 2088, "end_char": 2093, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 2472, "end_char": 2482, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 2736, "end_char": 2742, "source": "regex", "metadata": {"statute": null}}, {"text": "s.155(2)", "label": "PROVISION", "start_char": 2916, "end_char": 2924, "source": "regex", "metadata": {"statute": null}}, {"text": "s.120B", "label": "PROVISION", "start_char": 2976, "end_char": 2982, "source": "regex", "metadata": {"statute": null}}, {"text": "s.420", "label": "PROVISION", "start_char": 2993, "end_char": 2998, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2999, "end_char": 3004, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.4(2)", "label": "PROVISION", "start_char": 3016, "end_char": 3022, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "April 17, 1972", "label": "DATE", "start_char": 3250, "end_char": 3264, "source": "ner", "metadata": {"in_sentence": "The names and addreases of the accused were given as tlie Management and other o111cers of the\n\nUnitd Commercial Bllll!k and the Management and otlloers of Hindustan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19F of the Exchange Act to appear before the Enfdroement Directorate and to give evidence regarding the transaction of Exchange Contract booked from Hilndustan Motors Ltd.\n\nAfter objecting to appear before the Enforcement Directorate as ."}}, {"text": "s. 19F", "label": "PROVISION", "start_char": 3316, "end_char": 3322, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Hilndustan Motors Ltd.", "label": "ORG", "start_char": 3468, "end_char": 3490, "source": "ner", "metadata": {"in_sentence": "The names and addreases of the accused were given as tlie Management and other o111cers of the\n\nUnitd Commercial Bllll!k and the Management and otlloers of Hindustan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19F of the Exchange Act to appear before the Enfdroement Directorate and to give evidence regarding the transaction of Exchange Contract booked from Hilndustan Motors Ltd.\n\nAfter objecting to appear before the Enforcement Directorate as ."}}, {"text": "Enforcement Directorate", "label": "RESPONDENT", "start_char": 3529, "end_char": 3552, "source": "ner", "metadata": {"in_sentence": "The names and addreases of the accused were given as tlie Management and other o111cers of the\n\nUnitd Commercial Bllll!k and the Management and otlloers of Hindustan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19F of the Exchange Act to appear before the Enfdroement Directorate and to give evidence regarding the transaction of Exchange Contract booked from Hilndustan Motors Ltd.\n\nAfter objecting to appear before the Enforcement Directorate as ."}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 3867, "end_char": 3877, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3885, "end_char": 3906, "source": "regex", "metadata": {}}, {"text": "[1969] 2 S.C.R. 461", "label": "CASE_CITATION", "start_char": 4293, "end_char": 4312, "source": "regex", "metadata": {}}, {"text": "[1961] 1 S.C.R.\n\n417", "label": "CASE_CITATION", "start_char": 4362, "end_char": 4382, "source": "regex", "metadata": {}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 4540, "end_char": 4550, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 4577, "end_char": 4587, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 5149, "end_char": 5156, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5164, "end_char": 5185, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 5230, "end_char": 5239, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, (in W.P. No."}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 5259, "end_char": 5265, "source": "ner", "metadata": {"in_sentence": "164) B. Sen, (in W.P. No."}}, {"text": "Krishna Sen", "label": "LAWYER", "start_char": 5285, "end_char": 5296, "source": "ner", "metadata": {"in_sentence": "165) Krishna Sen, S. R. Agarwala and R. K. Khanna, for the petitioners."}}, {"text": "S. R. Agarwala", "label": "LAWYER", "start_char": 5298, "end_char": 5312, "source": "ner", "metadata": {"in_sentence": "165) Krishna Sen, S. R. Agarwala and R. K. Khanna, for the petitioners."}}, {"text": "R. K. Khanna", "label": "LAWYER", "start_char": 5317, "end_char": 5329, "source": "ner", "metadata": {"in_sentence": "165) Krishna Sen, S. R. Agarwala and R. K. Khanna, for the petitioners."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 5353, "end_char": 5366, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor-General of India and S. P.\n\nNayar, for the respondents."}}, {"text": "S. P.\n\nNayar", "label": "LAWYER", "start_char": 5410, "end_char": 5422, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional Solicitor-General of India and S. P.\n\nNayar, for the respondents."}}, {"text": "SIKRI", "label": "JUDGE", "start_char": 5489, "end_char": 5494, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delibered by SIKRI, C.J. The same point of law arises in both the writ petitions and it will suffice if facts in writ petition No."}}, {"text": "Ramanlal Bhogilal Shah", "label": "PETITIONER", "start_char": 5648, "end_char": 5670, "source": "ner", "metadata": {"in_sentence": "The petitioner, Ramanlal Bhogilal Shah, was the Gene-\n\nSUPREME COURT REPORTS (1973] 3 S.Cl.", "canonical_name": "RAMANLAL BHOGILAL SHAH AND ANOTHER"}}, {"text": "September 1, 1971", "label": "DATE", "start_char": 5977, "end_char": 5994, "source": "ner", "metadata": {"in_sentence": "Upon nationalisation of the bank, the petitioner was appointed Custodian thereof and he continued as Custodian till September 1, 1971."}}, {"text": "June 4, 1966", "label": "DATE", "start_char": 6000, "end_char": 6012, "source": "ner", "metadata": {"in_sentence": "On June 4, 1966 the United Commercial Bank had booked a forward exchange contract for Hindustan Motors for £ 9,32,617 at the rate of ls."}}, {"text": "United Commercial Bank", "label": "ORG", "start_char": 6017, "end_char": 6039, "source": "ner", "metadata": {"in_sentence": "On June 4, 1966 the United Commercial Bank had booked a forward exchange contract for Hindustan Motors for £ 9,32,617 at the rate of ls."}}, {"text": "Hindustan Motors", "label": "ORG", "start_char": 6083, "end_char": 6099, "source": "ner", "metadata": {"in_sentence": "On June 4, 1966 the United Commercial Bank had booked a forward exchange contract for Hindustan Motors for £ 9,32,617 at the rate of ls."}}, {"text": "June 6, 1966", "label": "DATE", "start_char": 6157, "end_char": 6169, "source": "ner", "metadata": {"in_sentence": "On June 6, 1966, the rupee was devalued."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 6256, "end_char": 6261, "source": "regex", "metadata": {"statute": null}}, {"text": "D. K. Guha", "label": "OTHER_PERSON", "start_char": 6398, "end_char": 6408, "source": "ner", "metadata": {"in_sentence": "On May 24, 1971 the petitioner was served with summons under s. 19-F of the Foreign Exchange (Regulation) Act, 1947-hereinafter referred to as the Exchange Act to give evidence in the enquiry which Shri D. K. Guha, Deputy Director, Enforcement Directorate, Was making into certain offences under the Exchange Act.", "canonical_name": "D. K. Guha"}}, {"text": "Was making into certain offences under the Exchange Act", "label": "STATUTE", "start_char": 6452, "end_char": 6507, "source": "regex", "metadata": {}}, {"text": "United CommercialBank of", "label": "ORG", "start_char": 6688, "end_char": 6712, "source": "ner", "metadata": {"in_sentence": "According to the petitioner, the entire examination on the said dates related to the booking by the United CommercialBank of the aforesaid forward exchange contract dated June 4, 1966."}}, {"text": "s. 19B", "label": "PROVISION", "start_char": 6827, "end_char": 6833, "source": "regex", "metadata": {"linked_statute_text": "Was making into certain offences under the Exchange Act", "statute": "Was making into certain offences under the Exchange Act"}}, {"text": "s. 19B", "label": "PROVISION", "start_char": 6875, "end_char": 6881, "source": "regex", "metadata": {"linked_statute_text": "Was making into certain offences under the Exchange Act", "statute": "Was making into certain offences under the Exchange Act"}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 7764, "end_char": 7771, "source": "regex", "metadata": {"linked_statute_text": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act", "statute": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 7782, "end_char": 7787, "source": "regex", "metadata": {"linked_statute_text": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act", "statute": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7825, "end_char": 7830, "source": "regex", "metadata": {"linked_statute_text": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act", "statute": "India or within the Indian customs waters has been guilty of an offence punishable under the Exchange Act"}}, {"text": "8-6-66", "label": "DATE", "start_char": 8071, "end_char": 8077, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS by such criminal acts the Bank converted pound sterling not at the rate prescribed by the Foreign Exchange Dealers Association of India effective from 8-6-66 as aforesaid but at the rate of Rs."}}, {"text": "8-7-66", "label": "DATE", "start_char": 8152, "end_char": 8158, "source": "ner", "metadata": {"in_sentence": "1 during the period of 8-7-66 to 3-3-67 on the total amount of £ 9,32,617-0-od;\n\n32."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 8354, "end_char": 8375, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS the aforesaid amount of £ 9,32,617-0-0d has been converted into Indian currency at rates other than the rates authorised by the Reserve Bank of India;\n\n33."}}, {"text": "Section 4(2)", "label": "PROVISION", "start_char": 8691, "end_char": 8703, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 8843, "end_char": 8853, "source": "regex", "metadata": {"statute": null}}, {"text": "R. B. Sha\\", "label": "OTHER_PERSON", "start_char": 9004, "end_char": 9014, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS the aforesaid contraventions, have been committed by the said Bank or have taken place with the consent of the said R. B. Sha\\!;", "canonical_name": "R. B. Sha\\"}}, {"text": "R. B. Shah", "label": "OTHER_PERSON", "start_char": 9103, "end_char": 9113, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS at the time of the aforesaid contraventions were committed, the said R. B. Shah was in charge of, or was responsible to the United Commercial Bank Limited for the conduct of the business of the said Bank;\n\n38.", "canonical_name": "R. B. Sha\\"}}, {"text": "United Commercial Bank Limited", "label": "ORG", "start_char": 9158, "end_char": 9188, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS at the time of the aforesaid contraventions were committed, the said R. B. Shah was in charge of, or was responsible to the United Commercial Bank Limited for the conduct of the business of the said Bank;\n\n38."}}, {"text": "Section 23C", "label": "PROVISION", "start_char": 9575, "end_char": 9586, "source": "regex", "metadata": {"statute": null}}, {"text": "Onkar Nath Chattopadhyay", "label": "OTHER_PERSON", "start_char": 9677, "end_char": 9701, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS, in view of the aforesaid facts 1111d circumstances, I, Onkar Nath Chattopadhyay, Enforcement Officer, Enforcement Directorate, l)epaJitment ot Personnel, Cabinet Secretariat, Government of India, being an officer of Enforcement authorised .by the Central Government to exercise 'the powers under Section 19B of the said Act, have reason to believe that the said R. B. Shah in India has been guilty of oll'ences under Section 4(2) and under Section 22 of the said Act punishable under Section 23 of the said Act; ·\n\n40."}}, {"text": "Central Government", "label": "ORG", "start_char": 9869, "end_char": 9887, "source": "ner", "metadata": {"in_sentence": "AND WHEREAS, in view of the aforesaid facts 1111d circumstances, I, Onkar Nath Chattopadhyay, Enforcement Officer, Enforcement Directorate, l)epaJitment ot Personnel, Cabinet Secretariat, Government of India, being an officer of Enforcement authorised .by the Central Government to exercise 'the powers under Section 19B of the said Act, have reason to believe that the said R. B. Shah in India has been guilty of oll'ences under Section 4(2) and under Section 22 of the said Act punishable under Section 23 of the said Act; ·\n\n40."}}, {"text": "Section 19B", "label": "PROVISION", "start_char": 9918, "end_char": 9929, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(2)", "label": "PROVISION", "start_char": 10039, "end_char": 10051, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 10062, "end_char": 10072, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 10106, "end_char": 10116, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19E", "label": "PROVISION", "start_char": 10276, "end_char": 10287, "source": "regex", "metadata": {"statute": null}}, {"text": "Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 10298, "end_char": 10335, "source": "regex", "metadata": {}}, {"text": "SUPREME COURT REPORTS [1973] 3 s.c.R.", "label": "COURT", "start_char": 10463, "end_char": 10500, "source": "ner", "metadata": {"in_sentence": "The question arises with which we will presently deal with, whether after those grounds have been served on the petitioner,\n\nSUPREME COURT REPORTS [1973] 3 s.c."}}, {"text": "art. 20(3)", "label": "PROVISION", "start_char": 10569, "end_char": 10579, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Chief Presidency Magistrate, Calcutta", "label": "COURT", "start_char": 10641, "end_char": 10678, "source": "ner", "metadata": {"in_sentence": "The petitioner was produced before the Chief Presidency Magistrate, Calcutta, on August 31, 1971, who released him on bail of Rs."}}, {"text": "September 6, 1971", "label": "DATE", "start_char": 10910, "end_char": 10927, "source": "ner", "metadata": {"in_sentence": "On September 6, 1971, the Chief Presidency Magistrate, Calcutta, recorded : ,; Both accused are on C.B. and present."}}, {"text": "December 6, 1971", "label": "DATE", "start_char": 11178, "end_char": 11194, "source": "ner", "metadata": {"in_sentence": "On December 6, 1971, the order is recorded as follows :\n\n\"Both accused are on C.B. and present."}}, {"text": "March 6, 1972", "label": "DATE", "start_char": 11492, "end_char": 11505, "source": "ner", "metadata": {"in_sentence": "On March 6, 1972, it was inter alia ordered : \". , ..."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 11755, "end_char": 11768, "source": "ner", "metadata": {"in_sentence": "He submits that the matter is pending before the Supreme Court and concerned documents remain sealed in that connection."}}, {"text": "5-6-72", "label": "DATE", "start_char": 11994, "end_char": 12000, "source": "ner", "metadata": {"in_sentence": "allowed time till 5-6-72 for a report about progress of investigation and submission of regular complaint, if any, against the accused persons.''"}}, {"text": "6th March 1972", "label": "DATE", "start_char": 12390, "end_char": 12404, "source": "ner", "metadata": {"in_sentence": "4 before the C.-'hief Presidency Magistrate, Calcutta, as recorded in his order dated 6th March 1972 arose out of a writ petition filed by Hindusthan Motors Ltd. before the Hon'ble High Court at Cakutta challenging inter a/ia the search at the premises of Hindusthan Motors Ltd. conducted by the Enforcement Directorate in or about October 1969 and the seizure of documents as a result\n\nthereof.\""}}, {"text": "Hindusthan Motors Ltd.", "label": "ORG", "start_char": 12443, "end_char": 12465, "source": "ner", "metadata": {"in_sentence": "4 before the C.-'hief Presidency Magistrate, Calcutta, as recorded in his order dated 6th March 1972 arose out of a writ petition filed by Hindusthan Motors Ltd. before the Hon'ble High Court at Cakutta challenging inter a/ia the search at the premises of Hindusthan Motors Ltd. conducted by the Enforcement Directorate in or about October 1969 and the seizure of documents as a result\n\nthereof.\""}}, {"text": "High Court at Cakutta", "label": "COURT", "start_char": 12485, "end_char": 12506, "source": "ner", "metadata": {"in_sentence": "4 before the C.-'hief Presidency Magistrate, Calcutta, as recorded in his order dated 6th March 1972 arose out of a writ petition filed by Hindusthan Motors Ltd. before the Hon'ble High Court at Cakutta challenging inter a/ia the search at the premises of Hindusthan Motors Ltd. conducted by the Enforcement Directorate in or about October 1969 and the seizure of documents as a result\n\nthereof.\""}}, {"text": "s. 154", "label": "PROVISION", "start_char": 12856, "end_char": 12862, "source": "regex", "metadata": {"statute": null}}, {"text": "November 25,1971", "label": "DATE", "start_char": 12913, "end_char": 12929, "source": "ner", "metadata": {"in_sentence": "been registered on a First Information Report dated\n\nNovember 9, 1971, recorded under s. 154 of the Criminal Procedure Code and an order dated November 25,1971 had been obtained from the Chief Presidency Magistrate, Calcutta, permitting the investigation to be made under s. 155(2) of the Code of Criminal Procedure, 'This First Information Report des with the forward exchange contract purported to have been entered on June 4, 1966 by M/s Hindusthan Motors Ltd. and the United Commercial Bank Ltd. The offences alleged in the first Information Report are s. 120B read with s. 420 I.P.C., and urtder s. (2) read with s. 23(1) (b) of the Exchange Act, and the names and addrs.1es of the accused are given as the Management and other officers of the United Commercial Bank and the Management and officers of the Hindusthan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19-F of the Exchange Act tei appear before the Deputy Director, Enforcement Directorate, on April 28, 1972 to give evidence relating to the transaction of exchange contract booked from Hindusthan Motors Ltd. on June 4, 1966."}}, {"text": "s. 155(2)", "label": "PROVISION", "start_char": 13042, "end_char": 13051, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13059, "end_char": 13085, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "United Commercial Bank Ltd.", "label": "ORG", "start_char": 13242, "end_char": 13269, "source": "ner", "metadata": {"in_sentence": "been registered on a First Information Report dated\n\nNovember 9, 1971, recorded under s. 154 of the Criminal Procedure Code and an order dated November 25,1971 had been obtained from the Chief Presidency Magistrate, Calcutta, permitting the investigation to be made under s. 155(2) of the Code of Criminal Procedure, 'This First Information Report des with the forward exchange contract purported to have been entered on June 4, 1966 by M/s Hindusthan Motors Ltd. and the United Commercial Bank Ltd. The offences alleged in the first Information Report are s. 120B read with s. 420 I.P.C., and urtder s. (2) read with s. 23(1) (b) of the Exchange Act, and the names and addrs.1es of the accused are given as the Management and other officers of the United Commercial Bank and the Management and officers of the Hindusthan Motors Ltd.\n\nOn April 17, 1972 another summons was issued to the petitioner under s. 19-F of the Exchange Act tei appear before the Deputy Director, Enforcement Directorate, on April 28, 1972 to give evidence relating to the transaction of exchange contract booked from Hindusthan Motors Ltd. on June 4, 1966."}}, {"text": "s. 120B", "label": "PROVISION", "start_char": 13327, "end_char": 13334, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 420", "label": "PROVISION", "start_char": 13345, "end_char": 13351, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 13352, "end_char": 13357, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 23(1)", "label": "PROVISION", "start_char": 13388, "end_char": 13396, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 13674, "end_char": 13679, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "art. 20(3)", "label": "PROVISION", "start_char": 13991, "end_char": 14001, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "3 lst August, 1971", "label": "DATE", "start_char": 14217, "end_char": 14235, "source": "ner", "metadata": {"in_sentence": "1971and17th June 1971 proceedings have been initiated atia!was arrested on the 3 lst August, 1971 and in the grounds of arrest .one of the grounds of accusation mentioned is the transaction referred to by you in the summons.\""}}, {"text": "April 27, 1972", "label": "DATE", "start_char": 14756, "end_char": 14770, "source": "ner", "metadata": {"in_sentence": "TI1e petitioner thereupon filed the present petition on April 27, 1972."}}, {"text": "art. 20(3)", "label": "PROVISION", "start_char": 14968, "end_char": 14978, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 15359, "end_char": 15365, "source": "regex", "metadata": {"statute": null}}, {"text": "J. N. Prabhakar", "label": "OTHER_PERSON", "start_char": 15386, "end_char": 15401, "source": "ner", "metadata": {"in_sentence": "P.C., by Shri J. N. Prabhakar, Deputy Superintendent of Police, Central\n\nBureu of Investigation, Special Police Investigation Unit, New\n\nDelhi."}}, {"text": "s. 104", "label": "PROVISION", "start_char": 15777, "end_char": 15783, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 15791, "end_char": 15808, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 135", "label": "PROVISION", "start_char": 15991, "end_char": 15997, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 135", "label": "PROVISION", "start_char": 16153, "end_char": 16159, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Section\n\n104(1)", "label": "PROVISION", "start_char": 16475, "end_char": 16490, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 135", "label": "PROVISION", "start_char": 16670, "end_char": 16676, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 107 and 108", "label": "PROVISION", "start_char": 16947, "end_char": 16961, "source": "regex", "metadata": {"statute": null}}, {"text": "At that stage there is no question of the offender against the Customs Act", "label": "STATUTE", "start_char": 17068, "end_char": 17142, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 137", "label": "PROVISION", "start_char": 17395, "end_char": 17401, "source": "regex", "metadata": {"linked_statute_text": "At that stage there is no question of the offender against the Customs Act", "statute": "At that stage there is no question of the offender against the Customs Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 17541, "end_char": 17552, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 135", "label": "PROVISION", "start_char": 17625, "end_char": 17631, "source": "regex", "metadata": {"linked_statute_text": "At that stage there is no question of the offender against the Customs Act", "statute": "At that stage there is no question of the offender against the Customs Act"}}, {"text": "says that under the Exchange Act", "label": "STATUTE", "start_char": 17731, "end_char": 17763, "source": "regex", "metadata": {}}, {"text": "Romesh Mehta", "label": "OTHER_PERSON", "start_char": 17824, "end_char": 17836, "source": "ner", "metadata": {"in_sentence": "He further says tha~ in Romesh Mehta's case('') no enquiry had been made while in the present case an enquiry under s. l 9F had been made and the Deputy !"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 18105, "end_char": 18110, "source": "regex", "metadata": {"linked_statute_text": "He says that under the Exchange Act", "statute": "He says that under the Exchange Act"}}, {"text": "s. 23(1)(a)", "label": "PROVISION", "start_char": 18169, "end_char": 18180, "source": "regex", "metadata": {"linked_statute_text": "He says that under the Exchange Act", "statute": "He says that under the Exchange Act"}}, {"text": "s. 23(1 )(a)", "label": "PROVISION", "start_char": 18267, "end_char": 18279, "source": "regex", "metadata": {"linked_statute_text": "He says that under the Exchange Act", "statute": "He says that under the Exchange Act"}}, {"text": "art. 20(3)", "label": "PROVISION", "start_char": 18454, "end_char": 18464, "source": "regex", "metadata": {"linked_statute_text": "He says that under the Exchange Act", "statute": "He says that under the Exchange Act"}}, {"text": "s. 23(l)(a)", "label": "PROVISION", "start_char": 18642, "end_char": 18653, "source": "regex", "metadata": {"linked_statute_text": "He says that under the Exchange Act", "statute": "He says that under the Exchange Act"}}, {"text": "A.\n\nSen", "label": "OTHER_PERSON", "start_char": 18954, "end_char": 18961, "source": "ner", "metadata": {"in_sentence": "These aspects have not been considered by this Court i11 any case which has been brought to our notice, but we do not think that it is necessary to dispose of these contentions because \"e arc of the .opinion that the second point raised by Mr. A.\n\nSen must prevail."}}, {"text": "art.\n\n20(3)", "label": "PROVISION", "start_char": 19106, "end_char": 19117, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jagannadhadas", "label": "JUDGE", "start_char": 19288, "end_char": 19301, "source": "ner", "metadata": {"in_sentence": "In M. P, Sharma v. Satish Chandra(') where search warrants were issued against persons who had been included in the category of accused in the first information report, Jagannadhadas, J., obserYed at p. 1088 :\n\n\"Nor is there any reason to think that the Protection in respect of the evidence so procured is confined to what transpires at the trial in the court room."}}, {"text": "article 20(3)", "label": "PROVISION", "start_char": 19505, "end_char": 19518, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 21249, "end_char": 21259, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "United Commercial I.\n\nBank", "label": "ORG", "start_char": 21356, "end_char": 21382, "source": "ner", "metadata": {"in_sentence": "The petitioner was the General Manager of the United Commercial I.\n\nBank and it was alleed in the grounds of arrest that the petitioner was in charge of, or was responsible to the United Commercial Bank Ltd. for the conduct of the business of the said Bank, and that he failed to prove in course of his statements made under s. 19F before Shri D. K. Guba, Deputy Director of Enforcement, that the contravention took pfaee withqu~ his knowledge or that f he exercised all due diligence to prevenf the aforesaid contraven tion, as required under s. 23C of the Exchange Act."}}, {"text": "s. 19F", "label": "PROVISION", "start_char": 21637, "end_char": 21643, "source": "regex", "metadata": {"statute": null}}, {"text": "D. K. Guba", "label": "OTHER_PERSON", "start_char": 21656, "end_char": 21666, "source": "ner", "metadata": {"in_sentence": "The petitioner was the General Manager of the United Commercial I.\n\nBank and it was alleed in the grounds of arrest that the petitioner was in charge of, or was responsible to the United Commercial Bank Ltd. for the conduct of the business of the said Bank, and that he failed to prove in course of his statements made under s. 19F before Shri D. K. Guba, Deputy Director of Enforcement, that the contravention took pfaee withqu~ his knowledge or that f he exercised all due diligence to prevenf the aforesaid contraven tion, as required under s. 23C of the Exchange Act.", "canonical_name": "D. K. Guha"}}, {"text": "s. 23C", "label": "PROVISION", "start_char": 21856, "end_char": 21862, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 20(3)", "label": "PROVISION", "start_char": 22302, "end_char": 22312, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "art.20(3)", "label": "PROVISION", "start_char": 22339, "end_char": 22348, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "(1962) 3 S.C.R. 10", "label": "CASE_CITATION", "start_char": 23619, "end_char": 23637, "source": "regex", "metadata": {}}]}
{"document_id": "1973_3_448_453_EN", "year": 1973, "text": "THE COMMISSIONER OF INCOME-TAX, WEST BENGAL I,\n\nCALCUTTA\n\nMIS. VEGETABLES PRODUCTS LTD.\n\nJanuary 29, 1973 B.\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA JJ.]\n\nIncome Tax Act (43 of 1961), ss. 143, 156 and 21l(l)(a)(i)- Penc..-lty-Whether related to tax assessed or tax payable.\n\nThe assessee failed to furnish the return of itsincome within the time allowed but submitted the return after a notice under s. 28(3) of the J; ncometax Act, 1922, was served on him.· A provisional assess ment was made by the lncometax Officer under s. 23B of the 1922-Ac! and the assessee deposited the amount. The Income-tax Act, 1961, having come into force thereafter. the Income-tax Officer completed the assessment under the provisions of that Act, determined the tax due and the penalty payable by. the asscssee.\n\nIn doilllg so, he did not take into consideration the amount deposited by the asses.see, that is, he took into consideration not the amount demanded under s. 156 of the 1961-Act but the amount assessed under s. 143. The Appellate Assista:nt Commissioner confirmed the order; but the Tribunal held that the penalty under s. 271 (1 )(a)(i) is to be levied on the tx assessed minus the amount paid under the provisional assessment order, and the High Court, on refe're(lce, agreed with the Tribunal.\n\nDismissing the appeal by the Revenue to thi& Court,\n\nHELD : ( 1) The acceptance of one or the other ijnterpretation sought to be placed on s. 271(1)(a)(i) by the parries would lead to some inconvenient result; but the duty of_ the Court is to. read the section, understand its language and give , effect to it. If the language is plain, the fact that the consequence of gMng effloct to it may lead to some absurd result is not a factor t'o be taken into account in interpreting a provision.\n\nIt is for the Legislature to step in and remove the absu'rdity.\n\nOn the \"Other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted.\n\n[451D-F]\n\n(2) Section 271(J)(a)(i) stipulates that the Income-tax Officer may direct ti1at the assessee shall pay by way of penalty, \"in addition to the amount of tax, if any, payable by' him a sum equal to two per cent of the tax for everv month ............ \" Qua:Mifiootion of the tax payable is always refefred to in the Act as .a tax \"assessed\". A tax payable is not the same thing as tax assessed.\n\nThe tax payable is that A'lmovnt for which a demand not_ice is issued under s. 156. Hence, there can be no doubt that the -expression 'the amount of tax, if any, payable by him' referred to in the first part of the section refers to the tax payable under a demand ; notice. The definite article 'the' in the words \"the tax\" in the lattet pal-! of the provision, shows that it refers to the tax, if any, payable by the assessee-, mentioned in the first part of the section.\n\n[452D-G; 453A-B]\n\n(3) At any rate, the provision is capable of more tOOn one reasonable interprietation, and since the provisiqn, is not merely a taxproyision but a penalty provision as well the interpretation in favour of the assessee must be accepted.\n\n[453B-D]\n\nM. M. A.nnaioh v. Commissioner of Income-tax, Mysore, 76, I.T.R .. 582, approved.\n\nVir Bhan Bansi Lal v. Commissioner of Income-tax, Punjab, 6 J.T.R. 616 and Commissioner of Income-tax, Delhi v.\n\nHindustan Industrial CorpOTation, 86 I.T.R. 657, disapproved.\n\nCJv1L APPELLATE JURISDICTION : Civil Appeal No. 497 of 1970.\n\nAppeal by Certificate from the Judgment and order date June 26, 1969 of the Calcutta High Court in Income-tax Reference No. 145 of 1966.\n\nS. C. Manchanda, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant.\n\nB. Sen, S. Sadhu Singh, J.M. Khanna and S. Ramachandran, for the respondent.\n\nS. V. Gupte, T. S. Viswanatha Rao and A. T. M. Sampat, for the intervener.\n\nThe Judgment of the Court was delivered by HEGDE, J.-This appeal by certificate arises from the decision of the Calcutta High Cout in a case stated by the Income-tax\n\nAppellate Tribunal, 'B' Bench, Calcutta.\n\nAfter setting out the relevant facts, the Tribunal solicited the opinion of the High Court on the following question of law : 'Whether on the facts and in the circumstances of the case, the Tribunal was right in holding tha1t in calculating the penalty leviable under section 271 (I) (a)\n\n(i) of. the Income-tax Act, 1961 the amount paid by the assessee under the provisional assessment under section 23B of the Indian Income-tax Act, 1922, was to be deducted from the amount of tax determined under section 23 (2) of that Act in order to determine the amount of tax on which the computation of the penalty was to be based and in reducing the amount of the penalty imposed on the assessee to Rs. 2,737 /-.\" The High Court answered that question in the affirmative and in favour of the assessee.\n\nAggrieved by that decision, the Commissioner has brought this appeal.\n\nLet us now. proceed to state the facts relevant for deciding the point in issue, as could bl: gathered from the statement of the case.\n\nIn Ibis case we are concerned with the assess's assessment for the assessment year 1960-61, the relevant account year ending on December 31, 1959. In that regard the Income-tax Officer issued a notice under s. 22(2) of the Indian Income-tax Act, 1922 (ro\n\nbe hereinafter referred to as the \"1922 Act\") on June 1, 1960.\n\nThe same was served on the assessee on June 13, 1960 .. That notice required the assessee to submit its return on or before July\n\n1~, 1960. On July 18, 1960, the assessee moved for extension oi time for submitting its return.\n\nThe Income-tax Offier extended the time by two months and at rthe same time the informed the assessee that no fuI'ther time would be allowed. The assessee failed to furnish its return within the extended time.\n\nThereafter a notice under s.28(3) of the 1922 Aot was served on the assessee on January 16, 1961. On the very next day viz. January 17, 1961, the assessee filed its return for the assessment year in question.\n\nThe assessment was completed by the Income-tax Offii; er only on October 31, 1962.\n\nMeanwhile on April 1, 1961 jhi: Income-tax Act, 1961 to be hereinafter referred to as the \"A.ct\") came into force. As under the provisions of s.297(2)(g) of the Act, the proceedings for the imposition of the penalty jlad to be initiated and completed under the Act, a fresh notice under s. 27 4 (I) of the Act was served on the assessee.\n\nThe assessee objected to the validity of the notice but that objection was overruled. At present we are not concerned with that objection. We are also not concerned with the other objections tal>:en by tjle assessee which were negatived by the Tribunal. The lµcome-tx Officer determined the tax due frorn the assessee for the assesswem year at Rs. 1,25,512/10 P. and on that basis, th, e penalty pay~le by the assessee was fixed at Rs. 12,734/10 P. At this stagl_l' it may l:>e mentioned that on February 2,1961, a provisional assess!llellt was made by the Income-tax Officer under s. 23B of the j 922 Act.\n\nImmediately thereafrer the assessee deposited Rs. 92)94/55 }l.\n\nIn determining the penalty due from the assessee, th<? Income-tax Officer took into consideration not the aqu11t llenianded under s. 156 oi the Act but the amount assessed under s. 143 of the Act.\n\nIn appeal, the Appellate Assistant Commissioner confirmed the order of the Income-tax Officer. On a further appeal, the Tribunal came to the conclusion that the penahy under s.271 (I )(a)(i) is to be levied on the tax assessed minus the amount paid under the provisional assessment order namely Rs. 92,294/55 P.\n\nOn the biasis of that finding, it determined the penalty p; iyable by the assessee at Rs. 2,737 /44 P. The conclusion of the Tribunal was accepted as correct by the High Court.\n\nLearned Counsel for the Revenue, Mr. Manchanda contended\n\nthat on a proper construction of s. 27l(l)(a)(i) it would be G seen 1that the penalty had to be determlnod on the basis of the tax assessed under s. 143 of the Al;¢.\n\nCounsel urged that if that is not the true construction then. the effectiveness of the section may be taken away by the assessee paying the tax due by him a day before the demand notice is serv\"l<i on him.\n\nIn support oi the interpretation placed !)y him, Mr. Manchanda relided on the deciff sions of the Lahore l{igh Court in Vir Bhan Bansl Lal v. Commissioner of Income-tax, Puniab(') and the decision of the Delhi\n\n6 1.T.R. 616.\n\nHigh Court in Commissioner of Income.tax, Delhi v. Hindustan Industrial Corporation('). The Delhi High Court followed the decision of the Lahore High Court. On the other hand, it was urged by Mr. B. Sen, learned Counsel for the assessee and Mr.\n\nS. V. Gupta, learned Counsel for the interveners that on a proper interpretation of the provision mentioned earlier, it would be clear that the penalty can be only imposed on the amount payable under s. 156. In suppoll\\ of their contention, they relied on the decision oi the Mysore High Court in M. M. Annaiah v. Commissioner of Income-tax, Mysore.('). They further urged that if interpretation placed by the Revenue on s. 2 71 ( 1 )(a) ( i) is accepted as correct, the result would be that the advance tax paid or taxes deducted at the source cannot be taken into consideration in determining !be penalty payable. If that be true, the Counsel urged that even if the assessee had paid more tax than he need have paid, but had not submitted his return within the time fixed, he would be liable to pay penalty on the entire amount assessed.\n\nAccording to them the law cannot be presumed to be so harsh at that.\n\nThere is no doubt that the acceptance of one or the other inter pretation sought to 1?e pla~ on s. 271(l)(a)(i) bly the parties woµld lead ito some mconveruent result, but the duty of the court !$ fu read the sectio11, understand its langtiage and give effect to the same. I( the language is plain, the fact that the consequence qf'giyiµg elj'ect to it may lead to some absurd result is not a factor tfl J:1e taken into acC!)unt in interpreting a provision. Jit is for the 1egis1ature to step in and remove the ab5urdity. On the other han\\f, it two reasonable constructions of a taxing provision are possible thafc(lllStnictiOll which favours the as5essee must be adopted This\n\n1~ a well accpt¢ :iJle of constniction recognised by thi~ '(::ourt J1l severM of lf$ ec1S1ons. Hence a\\l that we have to see 1s, wa'I ' is the trut:. ~t pf. !he language eployed in s. 271 (1 )(a)(1). ¥ we find tha\\ liinguage to be iirob1p; uous pr capable of more\n\nm~!IJllngs han oµe, then We have to adopt that interpretatioq which\n\nf!miµrs the assessee, more particµlarly so bcause the provision\n\nr~\\l\\tes ~P impa5ition pf penalty.\n\nLet µs 11ow rell\\l section 211(\\)(a)(i). The section to the extent material flw our prese11t purpose rea~ :\n\n\"If the Income-(ax Officer or the Appellate Assistant Commissioner in the course of any proceedings under' this Act, is satisfied that any person- ( a) has without reasonable cause failed to furnish\n\nthe return of total income which he was required to furnish. . . . . . by notice given under su~\n\n(I) 86. I.T.R. 657.\n\n(2) 74 I.T.R. 582\n\nsection(2) of section 139 ...... or has without reasonable cause failed to furnish it within the time allowed and in the manner required .... by such notice he may direct that such person shall pay by way of penaky,-\n\n( i) in the cases referred to in clause (a) , in addition to the amount of the tax, if any, payable by him a sum equal to two per cent, of the tax for every month during which the default continued, but not ex9CedinJ1: in the aggregate fifty per cent, of the tax.\"\n\n(emphasis supplied)\n\nSection 271 ( !) ( a)(i) slipulates that the Income-tax Officer may direct that the assessee shall pay by way of penalty, in cases similar to the one that we are considering \"in addition to the amount of the tax, if ariy, payable by him a sum equal lo 2 per cent of the tax for every moll'th during which the! default continued but not exceeding in the aggregate 50 per cent of the tax''.\n\nWe must firs! determine what is the meaning of the expression \"the amount of the tax, if any, payable by him\" ins. 271 (1 )(a) (i), Does it mean the amount of tax assessed under s. 143 or the amount of tax payable under s. 156. The word \"assessed\" is a term often\n\nused in taxation laws. It is used in several provisions in the Act.\n\nQuantification of the tax payable is always referred to in the Act as a tax \"assessed\". A tax payable is not the same thing as tax assessed.\n\nThe tax payable is 'that amount for which a demand notice is issued under s. 156. In deterrnininJ!: the tax payable, the tax already paid has to be deducted. Hence there can be no doubt that the expression \"the amount of 1he tax, if any, payable by him\" referred to in the first part of s. 271(1) (a)(i) refers to the tax payable under a demand notice. We next come to the question what is the meaning to tie attached to the words \"the tax\" found in the laHer part of that provision. It may be noted that the expression used is not \"tax\" but \"the tax\". The definit~ article \"the\" must have reference to something said earlier. It can only refer to the tax. if any, payable by the assessee mentioned in the first part of s. 271(1)(a)(i). It is true the expression \"tax\" is defined in s. 2 ( 43) thus :\n\n\" \"tax\" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act. and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date.\"\n\nBut the difficulty in this case is, as mentioned e_arlier the expression used is not \"tax\" but \"the tax\". That expression can reasonably understood as referring to the expression earlier used in the provision namely \"the amount of the tax, if any payable\" by the assessee. At any rate, the provision in question is capable of more than one reasonable interpretation. Two High Courts namely Calculla and Mysore have taken the view that the expression \"the tax\" ins. 271(1)(a) (i) refers to \"the tax, if any, payable\"·\n\n(by the assessee) mentioned in the earlier part of .the section. It is true that Lahore and Delhi High Courts have taken a different view.\n\nBut the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view. Hence, particularly in view of the fact that we are interpreting, not merely a taxing provision but a penalty provision as well, the interprettion placed' by the Calcutta and Mysore High Courts cannot be rejected.\n\nFurther as seen earlier, the consequences of accepting the interpreta1ion placed by the Revenue may lead to harsh results.\n\n!'er the reasons mentioned .above, this appeal is dismissed with• costs.\n\nV.P.S.\n\nAppeal dismissed;", "total_entities": 78, "entities": [{"text": "THE COMMISSIONER OF INCOME-TAX, WEST BENGAL I,\n\nCALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, WEST BENGAL I, CALCUTTA", "offset_not_found": false}}, {"text": "MIS. VEGETABLES PRODUCTS LTD", "label": "RESPONDENT", "start_char": 58, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "M/S. VEGETABLES PRODUCTS LTD", "offset_not_found": false}}, {"text": "January 29, 1973", "label": "DATE", "start_char": 89, "end_char": 105, "source": "ner", "metadata": {"in_sentence": "January 29, 1973 B.\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 111, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 124, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA JJ.", "label": "JUDGE", "start_char": 148, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 167, "end_char": 181, "source": "regex", "metadata": {}}, {"text": "ss. 143, 156 and 21", "label": "PROVISION", "start_char": 196, "end_char": 215, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "s. 28(3)", "label": "PROVISION", "start_char": 412, "end_char": 420, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "s. 23B", "label": "PROVISION", "start_char": 537, "end_char": 543, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 603, "end_char": 623, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 156", "label": "PROVISION", "start_char": 963, "end_char": 969, "source": "regex", "metadata": {"linked_statute_text": "The Income-tax Act, 1961", "statute": "The Income-tax Act, 1961"}}, {"text": "s. 143", "label": "PROVISION", "start_char": 1016, "end_char": 1022, "source": "regex", "metadata": {"linked_statute_text": "The Income-tax Act, 1961", "statute": "The Income-tax Act, 1961"}}, {"text": "s. 271", "label": "PROVISION", "start_char": 1128, "end_char": 1134, "source": "regex", "metadata": {"linked_statute_text": "The Income-tax Act, 1961", "statute": "The Income-tax Act, 1961"}}, {"text": "s. 271(1)(a)(i)", "label": "PROVISION", "start_char": 1445, "end_char": 1460, "source": "regex", "metadata": {"linked_statute_text": "The Income-tax Act, 1961", "statute": "The Income-tax Act, 1961"}}, {"text": "Section 271(J)(a)(i)", "label": "PROVISION", "start_char": 2027, "end_char": 2047, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 156", "label": "PROVISION", "start_char": 2494, "end_char": 2500, "source": "regex", "metadata": {"statute": null}}, {"text": "S. C. Manchanda", "label": "OTHER_PERSON", "start_char": 3616, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "A. Ramachandran", "label": "LAWYER", "start_char": 3636, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3653, "end_char": 3664, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3669, "end_char": 3683, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 3705, "end_char": 3711, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Sadhu Singh, J.M. Khanna and S. Ramachandran, for the respondent.", "canonical_name": "B. Sen"}}, {"text": "S. Sadhu Singh", "label": "LAWYER", "start_char": 3713, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Sadhu Singh, J.M. Khanna and S. Ramachandran, for the respondent."}}, {"text": "J.M. Khanna", "label": "LAWYER", "start_char": 3729, "end_char": 3740, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Sadhu Singh, J.M. Khanna and S. Ramachandran, for the respondent."}}, {"text": "S. Ramachandran", "label": "LAWYER", "start_char": 3745, "end_char": 3760, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Sadhu Singh, J.M. Khanna and S. Ramachandran, for the respondent."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3783, "end_char": 3794, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, T. S. Viswanatha Rao and A. T. M. Sampat, for the intervener.", "canonical_name": "S. V. Gupte"}}, {"text": "T. S. Viswanatha Rao", "label": "LAWYER", "start_char": 3796, "end_char": 3816, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, T. S. Viswanatha Rao and A. T. M. Sampat, for the intervener."}}, {"text": "A. T. M. Sampat", "label": "LAWYER", "start_char": 3821, "end_char": 3836, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, T. S. Viswanatha Rao and A. T. M. Sampat, for the intervener."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 3902, "end_char": 3907, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by HEGDE, J.-This appeal by certificate arises from the decision of the Calcutta High Cout in a case stated by the Income-tax\n\nAppellate Tribunal, 'B' Bench, Calcutta."}}, {"text": "Calcutta High Cout", "label": "COURT", "start_char": 3971, "end_char": 3989, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by HEGDE, J.-This appeal by certificate arises from the decision of the Calcutta High Cout in a case stated by the Income-tax\n\nAppellate Tribunal, 'B' Bench, Calcutta."}}, {"text": "Income-tax\n\nAppellate Tribunal, 'B' Bench, Calcutta", "label": "COURT", "start_char": 4014, "end_char": 4065, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by HEGDE, J.-This appeal by certificate arises from the decision of the Calcutta High Cout in a case stated by the Income-tax\n\nAppellate Tribunal, 'B' Bench, Calcutta."}}, {"text": "section 271", "label": "PROVISION", "start_char": 4336, "end_char": 4347, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 4369, "end_char": 4389, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 23B", "label": "PROVISION", "start_char": 4461, "end_char": 4472, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4480, "end_char": 4507, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 23", "label": "PROVISION", "start_char": 4568, "end_char": 4578, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 22(2)", "label": "PROVISION", "start_char": 5278, "end_char": 5286, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5294, "end_char": 5321, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "June 13, 1960", "label": "DATE", "start_char": 5430, "end_char": 5443, "source": "ner", "metadata": {"in_sentence": "The same was served on the assessee on June 13, 1960 .. That notice required the assessee to submit its return on or before July\n\n1~, 1960."}}, {"text": "s.28(3)", "label": "PROVISION", "start_char": 5855, "end_char": 5862, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "January 16, 1961", "label": "DATE", "start_char": 5909, "end_char": 5925, "source": "ner", "metadata": {"in_sentence": "Thereafter a notice under s.28(3) of the 1922 Aot was served on the assessee on January 16, 1961."}}, {"text": "January 17, 1961", "label": "DATE", "start_char": 5953, "end_char": 5969, "source": "ner", "metadata": {"in_sentence": "January 17, 1961, the assessee filed its return for the assessment year in question."}}, {"text": "October 31, 1962", "label": "DATE", "start_char": 6104, "end_char": 6120, "source": "ner", "metadata": {"in_sentence": "The assessment was completed by the Income-tax Offii; er only on October 31, 1962."}}, {"text": "April 1, 1961", "label": "DATE", "start_char": 6136, "end_char": 6149, "source": "ner", "metadata": {"in_sentence": "Meanwhile on April 1, 1961 jhi: Income-tax Act, 1961 to be hereinafter referred to as the \"A.ct\") came into force."}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 6155, "end_char": 6175, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.297(2)(g)", "label": "PROVISION", "start_char": 6265, "end_char": 6276, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1961", "statute": "Income-tax Act, 1961"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 6410, "end_char": 6415, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1961", "statute": "Income-tax Act, 1961"}}, {"text": "February 2,1961", "label": "DATE", "start_char": 6958, "end_char": 6973, "source": "ner", "metadata": {"in_sentence": "12,734/10 P. At this stagl_l' it may l:>e mentioned that on February 2,1961, a provisional assess!llellt was made by the Income-tax Officer under s. 23B of the j 922 Act."}}, {"text": "s. 23B", "label": "PROVISION", "start_char": 7044, "end_char": 7050, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1961", "statute": "Income-tax Act, 1961"}}, {"text": "s. 156", "label": "PROVISION", "start_char": 7264, "end_char": 7270, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 143", "label": "PROVISION", "start_char": 7312, "end_char": 7318, "source": "regex", "metadata": {"statute": null}}, {"text": "s.271", "label": "PROVISION", "start_char": 7506, "end_char": 7511, "source": "regex", "metadata": {"statute": null}}, {"text": "Manchanda", "label": "OTHER_PERSON", "start_char": 7860, "end_char": 7869, "source": "ner", "metadata": {"in_sentence": "Learned Counsel for the Revenue, Mr. Manchanda contended\n\nthat on a proper construction of s. 27l(l)(a)(i) it would be G seen 1that the penalty had to be determlnod on the basis of the tax assessed under s. 143 of the Al;¢.\n\nCounsel urged that if that is not the true construction then."}}, {"text": "s. 27", "label": "PROVISION", "start_char": 7914, "end_char": 7919, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 143", "label": "PROVISION", "start_char": 8027, "end_char": 8033, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 8573, "end_char": 8589, "source": "ner", "metadata": {"in_sentence": "The Delhi High Court followed the decision of the Lahore High Court."}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 8619, "end_char": 8636, "source": "ner", "metadata": {"in_sentence": "The Delhi High Court followed the decision of the Lahore High Court."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 8677, "end_char": 8683, "source": "ner", "metadata": {"in_sentence": "On the other hand, it was urged by Mr. B. Sen, learned Counsel for the assessee and Mr.\n\nS. V. Gupta, learned Counsel for the interveners that on a proper interpretation of the provision mentioned earlier, it would be clear that the penalty can be only imposed on the amount payable under s. 156.", "canonical_name": "B. Sen"}}, {"text": "S. V. Gupta", "label": "LAWYER", "start_char": 8727, "end_char": 8738, "source": "ner", "metadata": {"in_sentence": "On the other hand, it was urged by Mr. B. Sen, learned Counsel for the assessee and Mr.\n\nS. V. Gupta, learned Counsel for the interveners that on a proper interpretation of the provision mentioned earlier, it would be clear that the penalty can be only imposed on the amount payable under s. 156.", "canonical_name": "S. V. Gupte"}}, {"text": "s. 156", "label": "PROVISION", "start_char": 8927, "end_char": 8933, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 9003, "end_char": 9020, "source": "ner", "metadata": {"in_sentence": "In suppoll\\ of their contention, they relied on the decision oi the Mysore High Court in M. M. Annaiah v. Commissioner of Income-tax, Mysore.(')."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9148, "end_char": 9152, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 271(l)(a)(i)", "label": "PROVISION", "start_char": 9734, "end_char": 9749, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 271", "label": "PROVISION", "start_char": 10497, "end_char": 10503, "source": "regex", "metadata": {"statute": null}}, {"text": "section 211(\\)(a)(i)", "label": "PROVISION", "start_char": 10770, "end_char": 10790, "source": "regex", "metadata": {"statute": null}}, {"text": "section 139", "label": "PROVISION", "start_char": 11212, "end_char": 11223, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 271", "label": "PROVISION", "start_char": 11703, "end_char": 11714, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 143", "label": "PROVISION", "start_char": 12271, "end_char": 12277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 156", "label": "PROVISION", "start_char": 12313, "end_char": 12319, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 156", "label": "PROVISION", "start_char": 12643, "end_char": 12649, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 271(1)", "label": "PROVISION", "start_char": 12856, "end_char": 12865, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 271(1)(a)(i)", "label": "PROVISION", "start_char": 13289, "end_char": 13304, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 13352, "end_char": 13356, "source": "regex", "metadata": {"statute": null}}, {"text": "1st day of April, 1965", "label": "DATE", "start_char": 13432, "end_char": 13454, "source": "ner", "metadata": {"in_sentence": "It is true the expression \"tax\" is defined in s. 2 ( 43) thus :\n\n\" \"tax\" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act."}}, {"text": "Calculla", "label": "JUDGE", "start_char": 14087, "end_char": 14095, "source": "ner", "metadata": {"in_sentence": "Two High Courts namely Calculla and Mysore have taken the view that the expression \"the tax\" ins."}}, {"text": "Mysore", "label": "OTHER_PERSON", "start_char": 14100, "end_char": 14106, "source": "ner", "metadata": {"in_sentence": "Two High Courts namely Calculla and Mysore have taken the view that the expression \"the tax\" ins."}}, {"text": "Lahore and Delhi High Courts", "label": "COURT", "start_char": 14296, "end_char": 14324, "source": "ner", "metadata": {"in_sentence": "It is true that Lahore and Delhi High Courts have taken a different view."}}, {"text": "Calcutta and Mysore High Courts", "label": "COURT", "start_char": 14381, "end_char": 14412, "source": "ner", "metadata": {"in_sentence": "But the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view."}}]}
{"document_id": "1973_3_454_462_EN", "year": 1973, "text": "FAQIR CHAND v.\n\nSHRI RAM RATI'AN BHANOT\n\nJanuary 30, 1973 (With connected appeal)\n\n'[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JI.]\n\nThe Delhi Rent Control :A.ct, 1952, s, 14-Lease of land by Improvr. ment Trust to landlord prohibiting use of land /or comm<rclal purposes-Landlord neverthelers leasing out part of building on land for commercial purpose-Le..se is not void-Landlord is not estopped from suing tenant for evictl'on-No estoppel agai'nst statutt-<;:ontroller muJt exercise one or the other of the two alternatires g, iven to hint, under s.14(1)-Clause (c) and (k) of the proviso to s. 14(1), applicability of, The respo; ndents were Jandldrds of two houses in the Karol Bagh area of Delhi. The bOuses were built !1tl lands given on Jong lease by the Delhi Improvement Trust to the rights, liabilities and a15ets of which the Delhi Development Authority subsequently succeeded.\n\nUnder the terms of the leases the buildings erected on the lands were to be used for residential purposes only. If they were used for any other purpose without the approval of the lessor the leases would become void.\n\nPortiotns of the buildings in question were however let out for commercial purposes-viz. a barber shop and a scooter repair shop.\n\nThe Delhi Development Authority gave notice to the landlords that since the buildings had been permitted to be used for commercial purposes the leases were liable to be determined.\n\nThey were called upon to discontinue the use of the land for commercial . purposes failing which they were asked to show cause why their leases should not be determined and the laind together with the buildings thereon be not reentered upon without compensation. Thereupon the landlords issued notice to the tenants asking them to stop the commercial use of the buildings.\n\nThe landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958 but the Controller dismissed the petitions. Their appeals were dismissed. The Division Bench of the High Court decided in favour of the landlords.\n\nIn appeal to this Court by special leave the question for c'onsideration was whether the landlords were estopped or otherwise prohibited from getting possession of the property from the tenants because they themselves had let it out for commercial purposes.\n\nThe Court had to considr the question in the light of the provisions of s. 14 of the Act.\n\nHELD : (i) If it is a case \\Vhere the. tenant has contrary to the terms of his tenoocy used the buildings for a commercial purpose the landlord could take actio, n under clause (c) of the proviso to s. 14(1).\n\nHe need not depend upon clause (k) at all.\n\nThe only situation in which clause (k) can take effect is when the lease is fdr a commercial purpose agreed upon both by the landlord and the tenant but that is <:ontrary to the terms of the lease of the land in favour of the landlord.\n\n[459E-G]\n\n(ii) The policy of the legislatures seems to be to put an end to unauthorised use of the leased lands rather than merely to enable the authorities .to get back possession of the leased lands. This concluai<*I is further fortified by a reference to sub-section 11 of section 14. The lease is not forfeited merely because the building put upon the leased land is put to unauthori90d use.\n\nThe tenant is given an opportunity\n\nPAQIR CHAND v. R. R. BRANOT (Alagiriswami, /.) 455\n\nto oomly with the condition imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to sub-s, ection (I).\n\nAs !()Ill& as the condition imposed i1 complied with there is no forfeiture.\n\nIt even enables the controller to di'rect compensation to be paid to the authority for a breach of the conditions, which must be done in the presence of the authority. [459H; 460A-D]\n\n(iii) The anxiety of the U.jislatul'e is to prevent unauthorised user rather than protection of the tenaint or strenathening the hands of the Development Authority in effectina forfeiture. The Development authority can always resort to the terms of the least, [460F-0]\n\nThere is no estoppel here because both the landlord and the tenant knew that the tenancy was not Q\\llO permitted unde'r the terms of the lease cf the land.\n\nIn any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord can:not, under the circumstances evict him.\n\nThe landlord will lose bis property and the tenant will also lose.\n\nHe cannct after the Development Authority takes over the building use it for a commercial purpose. [4600-H]\n\nTherefore the conclusion must be that the lease in its inception was not void ncir is the landlord estopped from claimi:i>g possession because he himself was a party to the breach of the conditions under which the land was leased to him. Neither the clear weirds of the section nor a consideration of the policy of the Act lead us to th, e conclusi<ln that the lease was void in its inception if it was for an u.rnauthorised user. [461A] Smt. Uma Kumari v. Jc.swant Rai Chopra, P .L.R. (1960) 460 and S. P. Arora v. Ajit Singh, l, L.R. (1970) II Delhi 120, disapproved.\n\nWan1an Shriniwas Kini v. Rati Lal Bhagwandas, A.1.R. 1959 S.C. 689, referred to. [The Court found that s. 14 of the Delhi Develapment Act was inapplicable to the case. The matter was sent back to the Controller for deciding the questio,1> under sub-section (11) of Section 14 whether he should exercise the one or the other of two alternatives mentioned therein.] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 846 and 1343 of 1972.\n\nAppeal by special leave from the judgment and order dated November 22, 1971 of the Delhi High Court in S.A.0. No. 83-D of 1965 And Civil Appeal No. 1343 of 1973 [Appeal by Special leave from the judgmenl and. order dated November 22, 1971 of the Delhi High Court in SAO No. 239-D of 1965.\n\nV. M. Tarkunde, S. S. Shukla and A. P. Gupta, for the appellant (in C. A. No. 846).\n\nS. P. Pandey, Shiv Prakash Pandey and S. S. Shukla, for the appellant (in C. A. No. 1343).\n\nD. N. Mukherjee, for respondent (in C. A. No. 846) . . Bakshi Man Singh and Harbans Singh, for the respondell't (in C.A. No. 1343).\n\nSardar Bahadur Saharya, Vishnu Bahadur Saharaya and Y.\n\nKhushalani, for the Intervener (in C.A. No. 846).\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.-These two appeals by special leave arc against the judgmem of the High Court of Delhi allowing the appeals filed by 'the two respondents.\n\nThe respondents are landlords of two houses in the Karol Bagh area of Delhi. The houses are built on lands given on long lease by the Delhi Improvement Trust to the rights, liabilities and assets of which the Delhi Development Authority has since sucecdcd.\n\nUnder the terms of the lease, subject to revision of recrt, the lessees were to put up residential buildings on the leased lands and the lessees undertook :\n\n\"(vi) not to use the said land and buildings that may be erected thereon during the said term for any other purpose than for the purpose of residential house without the consell'! in writing of the said lessor; provided that the lease shall become void if the land is used for any purpose than that for which 1the lease is granted not being a purpose subsequently approved by the lessor.\"\n\nThe present landlords are not the original lessees but their successors in interest.\n\nPortions of buildings have been leased for commercial purposes, a barber shop in C.A. 846 and a scooter repair shop in C.A. 1343. The Delhi Development Authority appears to have given notice to them drawing their attention to the provision of the lease extracted above and that as they had permitted the buildings to he used for commercial purposes contrary to the terms of the lease deed, the lease was liable to be determined and called upon them to discontinue the use of 'the land for commercial purposes, failing which they were asked to show cause why their lease should not bie determined and the land, together with the buildings theron. reen1ered upon without any compensation to tnem.\n\nThereupon the landlords issued notice to the tenants asking them to stop the commercial use of the buildings and later instituled the proceedings out of which these appeals arise. In both these cases the buildings had been put to commercial use even before 1957 when th! Delhi Development Authority Act of 1957 came into force.\n\nThe Con1roller dismissed thr petitions filed by the landlords and the appeals filed by them were dismissed.\n\nThey thereupon filed appeals to the High Court. A learned single Judge of the High Court taking a view contrary to two earlier decisbns in\n\nSmt. Uma Kumari v. Jaswant Rai Chopra(') and S. P. Arora v.\n\nAjit Singh(') referred 'the question that arise in these appeals to a Division Bench which took a view contrary to that taken in the two earlier decisions above referred to, and decidd in favour ol the landlords.\n\nThe question that arises for decision in these cases is this : Are the landlords esitopped or otherwise prohibited from getting posse~\n\nssion of the property from the tenants because they themselves had let it out for commercialpurposes. We shall set out the relevant portion of the statutory provisions regarding this question. Section 14 of the Delhi Rent Control Act 1958, which deals with the question of protection to tenants agail\\st eviction, in so far as it is relevant, .is as follows :\n\n\"14. ( 1) Notwithstanding anything to the c0ntrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribied manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- ( c) that the tenaRt has used the premises for a purpose other than that for which they were let-\n\n(i) if the premises have been let on or after the 9th day of June, 1952, wMhout obtaining the consent in writing of the landlord; or\n\n(ii) if the premises have been let before the s1id\n\ndate without obtaining his consent.\n\nJ_k) that the tenant has, notwithstanding previ0us notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Devel!Jpment Authority or the Municipal Corporation of Delhi while giving him a lease of the land , m which the premises are situate.·•\n\nSub-section 11 of the same seotion, which is also relevan:., reads :\n\n\" ( 11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (I). if the tenant, within such time as may be specified in this\n\n(I) P.L.R. (1960\\ 460.\n\n(2) l.L.R. (1970) !I Delhi 130.\n\nbehalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.\"\n\nSection 14 of the Delhi Development Act 1957 is as follows : 8 \"14. After the coming into operation ol any of the plans in a zone no person shall use or permit to be used any landor l:Juilding in that zone otherwise than in conformity with such plan : Provided that it shall be lawful to continue to use upon such terms and condition as may be prescribed C by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes iiito force.\"\n\nBefore this Act was passed the United Provinces Town Improve- D ment Act 1919 was in force in Delhi and the Delhi Improvement Trust was constituted thereunder.\n\nIt was this Trust which had leased the lands to the predecessors of the two landlords in the present appeals.\n\nThe Delhi Development Authority established under the Delhi Development Act 1957 succeeded to the asets, rights and liabilities of the Delhi Improvement Trust. We shall deal first with the question that arises under the Delhi Rent Control E Act. .\n\nClause (k) ol the proviso to sub-section (I) of Section 14 provides that the Controller may, on an application made to nim in the prescribed manner, make an order for the recovery of possession of the premises on the ground that the tenant has, notwithstanding previous notice, used or dealt with the premises in a F manner contrary to any condition imposed on 'the landlord by the Government or the Delhi Development Authority or the Municiphl Corporation of Delhi while giving him a lease of the land on which the premises are situate. In this case the lease granted by the Delhi Improvement Trust, the predecessors in interest of the Delhi Development Authority, to the predecessors in interest of G the landlords contains 'l condition that any building to be erected on the land shall not be used for any purpose other ithan residential purpose. There is no dispute that part of each of the buildings is being used in a manner contrary to that condition. The landlord has also given notice asking the tenant to cease JJSing the building for that purpose. The two earlier decisions rclerred to held that H notwithstandihg this provision the landlord was not entitled to get possessi.on of the land because he himself had leased the building for a commercial purpose and was, therefore, estopped from\n\nFAQIR CHAND v. It .R. l!HANOT (Alagiriswami, !.) 459\n\nclaiming possession. The result will ~~ this : The Delhi Develo~ ment Authority can enforce the conditions of the lease and forfeit the leased land with the buildings thereon. In that case both 1!1e landlord as well as the tenant stand to lose. The landlords pomt\n\nout 'this. situation and say that they are not interested in evicting the tenants but are interested only in seeing that the tenants do not use the buildings for commercial purposo with the consequences that they may have to lose the land and the buildings and the tenants also cannot any longer use it for a commercial purpose.\n\nIt has been argued on behalf of the tenants that this clause will apply only where the tenant has used the land after previous notice from the landlord, i.e., if the landlord had told him at the beginning of the tenancy that the building was not to be used for commercial purpose and notwithstanding that the tenant used it for a commercial purpose. They, therefore, contend that as in this case both the landlord and the tenant were aware of the use\n\nto which the building was to be put there is no question of any notice from the landlord asking the tenant not to use the building for commercial purpose and by merely issuing such notice the landlord cannot take advantage of clause (k) . This is really another way of putting the argument that the landlord having granted the lease for a commercial purpose is estopped from comending that the tenant should not use it for commercial purpose. While the argument appears to be plausible we are of opinion that there is no substance in this argument. If it is a case where the otenant has contrary to the terms of his tenancy used the build ing for a commercial purpose the landlord could take action under clause (c).\n\nHe need not depend upon clause (k) at all. These two clauses are intended to meet different situations. 'there was no need for an additional provision in clause (k) to enae a landlord to get possession where the tenant has used the building for a commercial purpose contrary to the terms of the tenancy. An intention to put in an useless provision in a statute cannot be imputed to the Legislature.\n\nSome meaning would have to be given to that provision. The only situation in which it can take effect is where the lease is for a commercial purpose agreed upon by both the landlord and the tenant but tht is contrary to the terms of the lease of the land in favour of the landlord. That clause does not come into operation where there is no provision in the lease of the land in favour of the landlord, prohibiting its use for a commercial purpose.\n\nThe legislature has clearly taken note of the fact that enormous extents of land have been leased by the three authorities mentioned in that clause, and has expressed by means of this clause its anxiety to see that these lands are used for the purpose for which they were leased. Tho policy of the legislature seems to be to put an\n\n14-1<796Sup.C.T./73\n\nend to unauthorised use of the leased lands rather than merely to enable t!ie authorities to get back possession of the leased lands.\n\nThis conclusion is further fortified a reference to sub-section l l of section 14. The lease is not forfeited merely because the building put upon the leased land is put to an unauthorised use. The tenam is given an opportunity to comply with the conditions imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to sub-section ( 1). AB long as the condition imposed is complied with there is no forfeiture. It even enables the Controller to direct compensation to be paid to the authority for a breach of the conditions. Of course, the Controller cannot award the payment of compensation to the authority except in the presence of the authority.\n\nThe authority may not be prepared to accept compenswtion but might insist upon cessation of the unauthorized use. The sub-section does not also say who is to pay the compensation, whether it is the landlord or the tenant. Apparently in awarding c-ompensation the Controller will have to apportion the responsibility for the breach between the lessor and the tenant.\n\nThe provision of clause (k) of the proviso to sub-section ( 1) of section 14 is someil:hing which has' to be given effect to whatever the original contract between the landlord and the tenant. The leases were granted in 1940, and the buildings might have been put up even before the Delhi and Ajmer Rent Control Act 1952 came into force. It was that Act that for the first time provided the kind of remedy which is. found in clause (k). The relevant provision in that Act enabled the landlord to get 110ssession where the tenant whether before or after the commencement of the Act used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him. a lease of the land on which the premises are situate notwithstanding previous notice. The anxiety of !he legislature is to prevent unauthoriz.ed user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture.\n\nThe Development Authority can always resort to the tenns of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. Iri any case there can be no estoopel against the statute.\n\nIt would not benefit the tenant even ii it is held that the landlord cannot, under the circumstances, evict him.\n\nThe landlord will li:>se his property and the tenant also will lose. He cannot, after the Development Authority takes over the ilding use it for a commercial purpose. We thus reach the conclusion that the lease in its inceotion. was not void nor is the landlord estooped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him.\n\nNeither the clear words of the section, as in Waman Shriniwas\n\nKini v. Rati Lal Bhagwandas('), nor a consideration of the policy of the Act lead us to the conclusion that the lease was void in its inception if it was for an unauthorised user.\n\nWe are also of the opinion that the High Court was not justified in leaving to the Controller no option but to pass an order for eviction. 'fhat would make rthe alternative provided in subsection ( 11) of section 14 useless. The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to ithe plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to 'the Delhi Development Authority. This is in effect nullifying part of the provisions contained in sub-section ( 11) of section 14.\n\nThe High Court has arrived at i'ts conclusion on the basis that section 14 of the Delhi Development Act applies to this Case. We shall presently show that that section has no relevance to the decision of this case.\n\nIt is under !he terms of the lease granted by the Delhi Improvement Trust that the use of this building for commercial purpose is prohibited and not under the Delhi Development Act.\n\n\"Furthermore, section 14 applies not only to lands leased by au1horities like the Delhi Development Authority containing conditions against unauthorised user as well as to lands which do not belong to rthat category. Its provisions are not intended to enforce the conditions in those leases. The proviso to that section deals with the use to which a land or b1uilding may continue to be put after rthe coming into force of any plan subject to such terms and conditions as may be prescribed by regulations, provided that building or land had been used for that purpose prior to the coming into force of the plan. The section does not therefore contemplate complete prohibition of the use of a land or building for purposes other than that permitted in the plan. Such uses can be continued subject to the terms and conditions prescribed by the regulations provided it had been so used even 1*fore the plan. It is admitted that no such regulations have been framed.\n\nTherefore, if a plan had come into operation in this area, the previous use can be continued till the regulations are framed and after t!:te regulations are framed, they will be subject to the terms and conditions of those regulations. We are of opinion, there.fore, rthat s. 14 of the Development Act has no relevance in deciding the question at issue in this case.\"\n\nThe appeals are alloy; ed and the judgment of the High Court is set aside. The matter will have to go back to the Controller for\n\n(I) A.l.R. 1959 S.C. 6R9.\n\ndeciding the question under sub-section ( 11) of section 14 whether he should exercise the one or the other of the two alternatives mentioned therein. As already mentioned, no order awarding compensation under the second alternative given in that sub-section\n\ncan be made except in the presence of the Delhi Development Authority. In the circwnstances of rthis case we direct the parties to bear their own costs.\n\nG.C.\n\nAppeals allowed.", "total_entities": 58, "entities": [{"text": "FAQIR CHAND", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "FAQIR CHAND", "offset_not_found": false}}, {"text": "RAM RATI'AN BHANOT", "label": "RESPONDENT", "start_char": 21, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "RAM RATTAN BHANOT", "offset_not_found": false}}, {"text": "January 30, 1973", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "FAQIR CHAND v.\n\nSHRI RAM RATI'AN BHANOT\n\nJanuary 30, 1973 (With connected appeal)\n\n'[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JI.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 85, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 102, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s.14(1)", "label": "PROVISION", "start_char": 559, "end_char": 566, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 604, "end_char": 612, "source": "regex", "metadata": {"statute": null}}, {"text": "Karol Bagh", "label": "GPE", "start_char": 686, "end_char": 696, "source": "ner", "metadata": {"in_sentence": "ment Trust to landlord prohibiting use of land /or comm<rclal purposes-Landlord neverthelers leasing out part of building on land for commercial purpose-Le..se is not void-Landlord is not estopped from suing tenant for evictl'on-No estoppel agai'nst statutt-<;:ontroller muJt exercise one or the other of the two alternatires g, iven to hint, under s.14(1)-Clause (c) and (k) of the proviso to s. 14(1), applicability of, The respo; ndents were Jandldrds of two houses in the Karol Bagh area of Delhi."}}, {"text": "Delhi", "label": "GPE", "start_char": 705, "end_char": 710, "source": "ner", "metadata": {"in_sentence": "ment Trust to landlord prohibiting use of land /or comm<rclal purposes-Landlord neverthelers leasing out part of building on land for commercial purpose-Le..se is not void-Landlord is not estopped from suing tenant for evictl'on-No estoppel agai'nst statutt-<;:ontroller muJt exercise one or the other of the two alternatires g, iven to hint, under s.14(1)-Clause (c) and (k) of the proviso to s. 14(1), applicability of, The respo; ndents were Jandldrds of two houses in the Karol Bagh area of Delhi."}}, {"text": "Delhi Improvement Trust", "label": "ORG", "start_char": 772, "end_char": 795, "source": "ner", "metadata": {"in_sentence": "1tl lands given on Jong lease by the Delhi Improvement Trust to the rights, liabilities and a15ets of which the Delhi Development Authority subsequently succeeded."}}, {"text": "Delhi Development Authority", "label": "ORG", "start_char": 847, "end_char": 874, "source": "ner", "metadata": {"in_sentence": "1tl lands given on Jong lease by the Delhi Improvement Trust to the rights, liabilities and a15ets of which the Delhi Development Authority subsequently succeeded."}}, {"text": "landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 1809, "end_char": 1909, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 2389, "end_char": 2394, "source": "regex", "metadata": {"linked_statute_text": "The landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958", "statute": "The landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 2607, "end_char": 2615, "source": "regex", "metadata": {"linked_statute_text": "The landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958", "statute": "The landlords later on instituted proceedings against the tenants under the Delhi Rent Control Act, 1958"}}, {"text": "section 11", "label": "PROVISION", "start_char": 3161, "end_char": 3171, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 3175, "end_char": 3185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 5238, "end_char": 5243, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 5400, "end_char": 5410, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. Tarkunde", "label": "OTHER_PERSON", "start_char": 5860, "end_char": 5874, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, S. S. Shukla and A. P. Gupta, for the appellant (in C. A. No."}}, {"text": "S. S. Shukla", "label": "LAWYER", "start_char": 5876, "end_char": 5888, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, S. S. Shukla and A. P. Gupta, for the appellant (in C. A. No.", "canonical_name": "S. S. Shukla"}}, {"text": "A. P. Gupta", "label": "OTHER_PERSON", "start_char": 5893, "end_char": 5904, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, S. S. Shukla and A. P. Gupta, for the appellant (in C. A. No."}}, {"text": "S. P. Pandey", "label": "LAWYER", "start_char": 5945, "end_char": 5957, "source": "ner", "metadata": {"in_sentence": "S. P. Pandey, Shiv Prakash Pandey and S. S. Shukla, for the appellant (in C. A. No."}}, {"text": "Shiv Prakash Pandey", "label": "LAWYER", "start_char": 5959, "end_char": 5978, "source": "ner", "metadata": {"in_sentence": "S. P. Pandey, Shiv Prakash Pandey and S. S. Shukla, for the appellant (in C. A. No."}}, {"text": "S. S. Shukla", "label": "LAWYER", "start_char": 5983, "end_char": 5995, "source": "ner", "metadata": {"in_sentence": "S. P. Pandey, Shiv Prakash Pandey and S. S. Shukla, for the appellant (in C. A. No.", "canonical_name": "S. S. Shukla"}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 6037, "end_char": 6052, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for respondent (in C. A. No."}}, {"text": "Bakshi Man Singh", "label": "LAWYER", "start_char": 6092, "end_char": 6108, "source": "ner", "metadata": {"in_sentence": "Bakshi Man Singh and Harbans Singh, for the respondell't (in C.A. No."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 6113, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "Bakshi Man Singh and Harbans Singh, for the respondell't (in C.A. No."}}, {"text": "Sardar Bahadur Saharya", "label": "OTHER_PERSON", "start_char": 6170, "end_char": 6192, "source": "ner", "metadata": {"in_sentence": "Sardar Bahadur Saharya, Vishnu Bahadur Saharaya and Y.\n\nKhushalani, for the Intervener (in C.A. No."}}, {"text": "Vishnu Bahadur Saharaya", "label": "LAWYER", "start_char": 6194, "end_char": 6217, "source": "ner", "metadata": {"in_sentence": "Sardar Bahadur Saharya, Vishnu Bahadur Saharaya and Y.\n\nKhushalani, for the Intervener (in C.A. No."}}, {"text": "Y.\n\nKhushalani", "label": "LAWYER", "start_char": 6222, "end_char": 6236, "source": "ner", "metadata": {"in_sentence": "Sardar Bahadur Saharya, Vishnu Bahadur Saharaya and Y.\n\nKhushalani, for the Intervener (in C.A. No."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 6321, "end_char": 6333, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.-These two appeals by special leave arc against the judgmem of the High Court of Delhi allowing the appeals filed by 'the two respondents."}}, {"text": "Delhi Development Authority Act", "label": "STATUTE", "start_char": 8336, "end_char": 8367, "source": "regex", "metadata": {}}, {"text": "Section 14", "label": "PROVISION", "start_char": 9247, "end_char": 9257, "source": "regex", "metadata": {"linked_statute_text": "Delhi Development Authority Act", "statute": "Delhi Development Authority Act"}}, {"text": "Delhi Rent Control Act 1958", "label": "STATUTE", "start_char": 9265, "end_char": 9292, "source": "regex", "metadata": {}}, {"text": "9th day of June, 1952", "label": "DATE", "start_char": 10014, "end_char": 10035, "source": "ner", "metadata": {"in_sentence": "1) Notwithstanding anything to the c0ntrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribied manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- ( c) that the tenaRt has used the premises for a purpose other than that for which they were let-\n\n(i) if the premises have been let on or after the 9th day of June, 1952, wMhout obtaining the consent in writing of the landlord; or\n\n(ii) if the premises have been let before the s1id\n\ndate without obtaining his consent."}}, {"text": "s1", "label": "PROVISION", "start_char": 10144, "end_char": 10146, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act 1958", "statute": "the Delhi Rent Control Act 1958"}}, {"text": "Delhi Devel!Jpment Authority", "label": "ORG", "start_char": 10365, "end_char": 10393, "source": "ner", "metadata": {"in_sentence": "J_k) that the tenant has, notwithstanding previ0us notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Devel!Jpment Authority or the Municipal Corporation of Delhi while giving him a lease of the land , m which the premises are situate.·•\n\nSub-section 11 of the same seotion, which is also relevan:.,"}}, {"text": "Municipal Corporation of Delhi", "label": "ORG", "start_char": 10401, "end_char": 10431, "source": "ner", "metadata": {"in_sentence": "J_k) that the tenant has, notwithstanding previ0us notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Devel!Jpment Authority or the Municipal Corporation of Delhi while giving him a lease of the land , m which the premises are situate.·•\n\nSub-section 11 of the same seotion, which is also relevan:.,"}}, {"text": "section 11", "label": "PROVISION", "start_char": 10512, "end_char": 10522, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 11071, "end_char": 11081, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Development Act 1957", "label": "STATUTE", "start_char": 11089, "end_char": 11115, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Before this Act was passed the United Provinces Town Improve- D ment Act 1919", "label": "STATUTE", "start_char": 11606, "end_char": 11683, "source": "regex", "metadata": {}}, {"text": "Delhi Development Authority established under the Delhi Development Act 1957", "label": "STATUTE", "start_char": 11882, "end_char": 11958, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "shall deal first with the question that arises under the Delhi Rent Control E Act", "label": "STATUTE", "start_char": 12041, "end_char": 12122, "source": "regex", "metadata": {}}, {"text": "Section 14", "label": "PROVISION", "start_char": 12175, "end_char": 12185, "source": "regex", "metadata": {"linked_statute_text": "We shall deal first with the question that arises under the Delhi Rent Control E Act", "statute": "We shall deal first with the question that arises under the Delhi Rent Control E Act"}}, {"text": "Municiphl Corporation of Delhi", "label": "ORG", "start_char": 12562, "end_char": 12592, "source": "ner", "metadata": {"in_sentence": "Clause (k) ol the proviso to sub-section (I) of Section 14 provides that the Controller may, on an application made to nim in the prescribed manner, make an order for the recovery of possession of the premises on the ground that the tenant has, notwithstanding previous notice, used or dealt with the premises in a F manner contrary to any condition imposed on 'the landlord by the Government or the Delhi Development Authority or the Municiphl Corporation of Delhi while giving him a lease of the land on which the premises are situate."}}, {"text": "Delhi Develo~ ment Authority", "label": "ORG", "start_char": 13536, "end_char": 13564, "source": "ner", "metadata": {"in_sentence": "The result will ~~ this : The Delhi Develo~ ment Authority can enforce the conditions of the lease and forfeit the leased land with the buildings thereon."}}, {"text": "section 14", "label": "PROVISION", "start_char": 16660, "end_char": 16670, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 17706, "end_char": 17716, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi and Ajmer Rent Control Act 1952", "label": "STATUTE", "start_char": 17923, "end_char": 17960, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 19895, "end_char": 19905, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 20298, "end_char": 20308, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 20375, "end_char": 20385, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Development Act", "label": "STATUTE", "start_char": 20393, "end_char": 20414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi Development Act", "label": "STATUTE", "start_char": 20686, "end_char": 20707, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 14", "label": "PROVISION", "start_char": 20724, "end_char": 20734, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 21947, "end_char": 21952, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 22249, "end_char": 22259, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_463_476_EN", "year": 1973, "text": "RAMNARAIN v.\n\nSTATE OF RAJASTHAN January 31, 1973\n\n[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]\n\nIndian Penal Code-Accused convicted under s. 461 and\n\n120B- Applicalion under s. 561A of the Cr. P. C. not considered-Whether there was grave miscarriage of justice.\n\nThe appellant was &llesed to have eintered into a conspiracy with othero, to persuade membern of the public to part with money for purchasing residential plots. in a village, 'Khand Gawadi' and in furtherence of this conspiracy, they we're alleged to have forged sale proceedings PGttas, and the signatures of othe<rs on such pattas and sale proceedings. The appellant himself affixed his signatures as Sarpanch and put the seal of the village pancbayat on the forged documents. 1he trial court held the appellant guilty of the offences of conspiracy under s. 120-B and be was also found guilty of the offences under s. 467 I. P. C.\n\nOn appeal the High Court confirmed the appellant's cqirviction on both these counts, but reduced bis sentence. The appellant's grievance before this Court was that non-consideration of his application under s. 561-A Cr. P.C. dated April 7, 1970, which was filed on May 1, 1970, but neither listed nor heard and !ms resulted in grave miscarriage of justice.\n\nOn 18th May 1970, the Hon'ble High Court made an order as follows: \"Perused application dated 7·4-1970 a, nd 30-4-1970. I have decided the case on 17-4-1970 and there is, therefore, no question of saying anything on the merits now\". 'Ibe second point strongly presented by the appellant is that the appellant's conviction was based solely on the testimony of P.W. 1, the approver, \\Vhose evide:nce has not been corroborated In material part's.\n\nAllowing the appeal,\n\nHELD: (i) The application under s. 561-A Cr. P.C. should have been disposed of after hearing the appellant's counsel and its disposal without such hea'ring was clearly \\Vrong and unjust. The appellant bas a just grievance against the manner in which this application was disposed of. He had a right to be afforded a reasonable opportuuity of being heard in support of his application, and the disposal of this case in the chamber of the learned judge without giving him such opportunity cannot be appreciated [469H]\n\n(ii) Section 133 of the ndian Evidence Act, expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. But this Section has to read along with illustration (b) to s. 114.\n\nSection 114 empowers the court to presume the existence of certaLr1 facts and the illustrations elucidate what the court may presume. Iliustration (b) in express tertDS says : 'that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute thus p.ermits the conviction of an accused person on the basis of uncorroborated testimony of a:n accomplice. But the rule of prudence embodied in Illustration (b) of s. 114 strikes a note of warning that tbe court will not generally believe an accomplice unless he is corroborated in material parts.\n\nThis rule is guided by long experience and has become a rule of prudence for general applic'ation.\n\n[470C.GJ\n\n(iii) So far as the charge u; nder s: 120-B, I.P.C. is concerned, in almost every case of conspiracy, it is generally a matter of inference, direct independent evidence being seldom. Inferences are normally deduced from acts of patties in pursuance of apparent crimin\"! purpoe in commo; n between them. In the present case, the only evidence is of the approver and the trial court expressly observed that there is no other direct evidence of conspiracy. Therefore the charge of conspiracy cannot be sustained from the evidence available. [475G-476B] In the pr.esent case, on the existing. evidence, the appellants.' convic tio; ri under s.467 I.P.C. was wholly unsustainable. Therefore, the appellants' conviction must be set aside. [475FJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 105 of 1970.\n\nAppeal by special leave from tl!e judgment and order dated April 17, 1970 of the Rajasthan High Court at Jodhpur in S. B.\n\nCr. Appeal No. 283 of 1967.\n\nNuruddin Ahmad V. S. Dave and Subhag Mal Jain, for the appellant.\n\nK. Baldev Mehta, for the respQildent.\n\nThe Judgment of the Court was delivered by DuA, J.-In this appeal by special leave from the judgment of the Rajasthan High Court Ram Narain, appellant, challenges his conviction for the offences under ss. 467 and 120B, I.P.C. He, along with three others, had been committed for trial in the court of Sessions Judge, Kota on ten charges for offences under ss. 467, 468, 420 and 120B, I.P.C. It is not necessary to reproduce all the charges and it would suffice if we set out the charges under s. iJ67 and 120B, I.P.C., because by the impugned judgment of the High Court the appellant's conviction was sustained only on charges under these two sections. Those charges are :\n\n\"1. That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- . mit offences of forgery using forged documents as genuine and of cheating the public, Municipal Board and the Government in respect of the sale of some pieces of land belonging earlier to the G.ram Panchayat Khand-' gawari in favour of Moolsingh, Mukatbeharilal and Surajsingh and that you did some act to wit forged the proceedings of the Pattas in favour of the above said persons and the signatures and the thumb impressions of the Panchas of the defunct Gram Panchayat and made false entries in the Cash Book of the said Panchayat of \\he; rear ~957-~8 at pages 42 and 45 and affixed the\n\n;,.\n\n.. 4.\n\n& •\n\n' )-\n\n..,,\n\nF ...\n\nG'\n\nRAMNARAIN v.\"RAJASTHAN (Dua, J.) 465\n\nA seal of that Gram Panchayat and put your signatures on the Pattas so forged, all in the capacity of the Surpanc.h of that Gram Panchayat besides agreement to commit the offences under sections 457, 468 and 420, of the l.P.C. punishable with rigorous imprisonment for over two years and thereby committed an offence punishable B under section 120B of the I.P.C. and within my cognizance.\n\n(2) That during the same period, you forged Patta proceedings in antedates in respect of the sale of land 30'X35' belonging earlier to the defunct Gram Panchayat Kandgaoilri in favour of Shri Surajsingh and put your own signatures on the forged document purporting to be valuable security to wit, the patta in favour of Surajsingh and gave it to Shri Surajsingh and that you thereby committed an offence punishable under section 467, of the l.P.C. and within my cognizance.\n\n( 5) That during the same period, you forged patta procgs in antedates in respect of the sale of land 50'X 50' belonging earlier to the defunct Gram Panchayat Khandgaonri in favour of Mukat Behari and put your siatures on the forged document purporting to be a valuaijle secm; ity., to wit.the patta in favour of Mukat Beharilal and gave it to Shri Mukat Behari and that you thereby committed an offence punishable under section 467 of the Indian Peiµ! Code and within my cognizance. . .\n\n( 8) That during the same period you forged patta proceedings in antedates in respect of the sale of land\n\n30'X30' belonging earlier to the defunct Gram Panchayat Khandgaonri, in favour of Shri Moolsingh and put your own signatures on the forged document purporting to be valuable security to with the patta in favour of Shri Moolsingh and gave it to Shri Moolsingh and that you thereby committed an offence punishable under section 467 of the I.P.C. and within my cognizance.\"\n\nVillage Khand Gawadi had before October, 1958 a panchayat of which Gangaram (P.W. 3) was the Sarpanch and the aopellant its Up-Sarpanch. In the months of April and May, 1S'58 the appellant officiated for the Sarpanch because the latter (Gangaram) was busy in connection with his daughter's marriai; e. B:t: means of a gazette notification (No. 11288/F.l(a) 48L 59/A/55 dated 16-10-58) the Rajasthan Government extended the limits of the municipal council, Kota, amongst other villages, to Khand\n\n466 SUPREME COURT REJl'\"ORTS\n\n[1973] 3 S.C.R.\n\nGawadi also. The Municipal Council took over charge from the Gram Panchayat of this village on January 7, 1959. According to the prosecution version during the months of November, 1959 to January, 1960, long after the village panchayat had ceased to exist, the appellant entered into a conspiracy with the other accused persons (tried along with him in the sessions court) and Bhanwarlal son of Bapulal (who became an approver and appeared as P.W.\n\n1 in the case) to cheat the members of the public, the Municipal Council, Kota and the Government. The modus operandi for carrying out the object of this conspiracy was to persuade such members of the public as were amenable to their persuasion to part with money for purchasing residential plots in village Khand Gawadi; and in furtherance of this conspiracy they forged sale proceedings and pattas_ by ante-dating them and forging signatures of the other Panchas on such pattas and sale proceedings. The appellant himself affixed his signatures as Sarpanch .and put the seal of the village Panchayat on the forged documents. The trial, as is obvious, from the charges reproduced above, was confined to the sale proceedings and pattas in the names of Moo! Singh, Mukat Beharilal and Suraj Singh. Bhanwarlal (P.W, 1), who was also stated to have been a party to this conspiracy was granted pardon and having become an approver appeared as a witness in support\n\nof the prosecution. The Sessions Judge, after considering the prosecution evidence and the evidence of the defence witnesses, produced by the appellant, upheld the prosecution case against the appellant holding that he and the approver, Bhanwarlal, had joined E hands in forging the sale proceedings and pattas mentioned in the charges and also in forging thereon the signatures of the other Panchas. In fact, according to the trial court, it was the appellant who had dragged Bhanwarlal into the conspiracy and their activities were motivated by a desire to cheat the Municipal Council, Kota, the members of the public and the Government of Rajasthan F by making them part with possession of their valuable land in village Khand Gawadi for nominal price. On this finding the offence of conspiracy under s. 120B was held proved against the appellant. He was also held guilty of the offence under s. 467, I.P.C. Charges under the other sections were held not proved The appellant was accordingly sentenced to rigorous imprisonment for three years and a fine of Rs. 200 under s. 120B and to rigorous imorisonment for two years and a fine of Rs. 200 under s. 467, I.P.C. In default of payment of fine the appellant was directed to undergo six months' further rigorous im1>risonment in each case.\n\nBoth the substantive sentences were directed to be concurrent. The\n\nother accused persons Bakshi Gajpat Singh, Madan Mohan and l'ladri Prasad were acquitted.\n\nOn ao!>eal the Hie:h Court affirmed the a1>1>ellant's conviction on both these counts but reduced his sentence to rigorous imprisonment for 15 months and a fine of Rs. 200 on each count. The sentences of imprisonment were directed to be concurrent. In default of payment of fine the appellant was directed to undergo further rigorous imprisonment for three months on each count.\n\nIn this Court Shri N uruddin Ahmad, the learned counsel for the appellant at the outset pointed out that in the High Court an application had been made on behalf of the appellant on April 7,\n\n1970 to recall Gangaram (P.W. 1) for cross-examining him and also for examining Mukat Beharilal and M. L. Parekh Deputy Superintendent of Police in charge, as court witnesses, but although arguments were addressed on that application at some length the High Court did not care to deal with the matter or even to refer to it in its judgment. In this connection our attention was drawn to Annexure D to the petition for special leave in this Court. Annexure D is said to be a copy of the application filed in the High Court by Shri V. S. Dave, Advocate for the appellant, under s. 540, Cr. P.C. The material part of Annexure D reads :\n\n\"1. That in the above noted appeal prosecution examined Ganga Ram P.W. 3 as a witness.\n\n2. That Gangaram besides the present complaint Ex. P-19 also lodged a complaint against appellant for offence under sections 409,- 477, l.P.C. and the accused appellant has been acquitted in the said case.\n\n3. That the judgment in case under sections 4~9 l!lld 477, I.P.C. was delivered subsequent to the eicammation\n\nof Gangaram as P.W. 3 and as such he could not be cross-examined in respect of his earlier cpmplaints and fact of enmity and false concention of cases -against the appellant could not be put to him.\n\n4. That appellant has also been convicted for forging the patta alleged to have been given to Mukat Beharilal.\n\n5. That Mukat Behari Lal has been withheld by the prosecution.\n\n6. That the appellant has learnt that Mukat Behari Lal filed a writ petition in this Hon'ble Court in respect of the said patta andsame is said to have been decided in his favour.\n\n7. That since the subject matter of patta of Mukat Behari Lal has been adjudicated upon by this Hon'ble Court his examination in this Hon'ble Court as a witness is essential to the just decision of this case and as also the production of judgment will have important bearing in the case.\n\n8. That the Deputy S. P. who conducted the investigation of this case has also not been produced and same has caused great prejudice to the case of the appellant as the appellant could not bring on record as to from whose custody the documents Ex. P-5, P-6, P-9 and P-12 and Ex. P-1 has been recovered.\n\n9. That the examination of aforesaid three witnesses is essential to the just decision of the case.\n\nIt is, therefore, prayed that your lordships would be pleased to accept this application recall Gangaram P .W. 3 for further cross-examination and also. cal.I Mukat Behari Lal and the Investigating Officer as Court witnesses or grant permission to appellant to summon them.\" Our attention was also invited to Annexures E and F to the Special Leave Petition. Annexure E is a certified copy of a slip of the Court Reader in single Bench Cr. A. No. 283 of 67, Ramnarain v.\n\nState in the High Court of Judicature for Rajasthan at Jodhpur.\n\nThat slip reads :\n\n\"This application was found lying in the Chamber of Hon'ble Gattani J. How this application was placed and who placed this application there.\n\nB.C.\n\nSd/- Bansidhar Reader\n\n27-4-70\"\n\nAnnexure F a certified copy of the order dated April 29, 1970 of Deputy Registrar of the High Court in the saia Criminal Appeal, which was also brought to our notice, reads :\n\n\"The application has been shown to Hon'ble Gattani J. and according to the direction of his Lordship the application be kept on the file.\n\nSd/- G. K. Sharma\n\nDy. Registrar\" G\n\nOn April 30, 1970 an application was presented on behalf of the appellant in the High Court under s. 561-A, Cr. P.C. This application, according to the appellant, was filed on May 1, 1970 but it was neither listed nor heard in court. The following order dated May 18, 1970 (as translated into English) was recorded by the learned Judge in Hindi :- H \"Perused the applications dated 7-4-70 and 30--4-70 presented on behalf of the appellant.\n\nI have decided the case on 17-4-70 and there is therefore no question of saying anything on the merits now. As far as IreJnember Shri Chiranjilal Agarwal did mention during the course of the arguments on 7-4-70 that he wanted to present an application. Then I had told him that if the application is presented it will also be taken into consideration. Thereafter during the course of the arguments no application was presented before me.\n\nI never saw the application dated 7-4-70 in my Chan1ber, nor anyone said anything to me on 29-4-70 about this application.\n\nSd/- H. D. GATTANI J.\" The appellant's grievance before us is that non-consideratior of his application dated April 7, 1970 has resulted in grave miscarriage of justice. Developing this point it has been contended that the manner in which this part of the case was dealt with suggests non-application of judicial mind by the High Court to the case as a whole.\n\nThe second point strongly pressed by Shri Nuruddin Ahmed is that the appellant's conviction is based solely on the testimony of Banwari Lal (P.W. 1), the approver, whose evidenee has not been corroborated in material paruculars, connecting the appellant with the alleged offence in question. The appellant's conviction is; therefore, unsustainable.\n\nP.W. 1, according to the appellant's submission, is a wholly unreliable witness and his ,.evidence is so seriously discrepant and unconvincing on vital points that it is highly dangerous to place any reliance on it. The sustenance of the appellant's conviction on the approver's evidence in this case would be a travesty of justice, said the counsel. We were taken througll the relevant record of the evidence by the counsel for both sides on this part of the case.\n\nNow so far as the first grievance is concerned, the appellant's submission cannot be summarily brushed aside as we feel there is pri'.\"'1 facie_ material calling for a further probe into the matter. But\n\ns m our view even if the first contention were to prevail the quesuon of recording additional evidence, as requested on behalf of the appellant, would have to be considered and since, in our opinion, the appeal has to be allowed on the second point, we deem it unnecessary to express any considered opinion on the first ooint. We would, however, like to point out that the application under s. 561-A, Cr. P.C. should have been disposed of after hearing the appellant's counsel and its disposal without such hearing w~ clearly wrong and unjust. The appellant has a just grievance against the manner in which this application was disposed of. He\n\nhad a right to be afforded a reasonable opportunity of being A heard in support of his application and we are unable to appre- , ciate the disposal of this application in the chambers without _giving him such opportunity. The counsel for the State was also\n\nunable to explain the divergence between the order of the Deputy .Registrar dated April 29, 1970 and the learned Judge's oblerva\n\ntion in his order dated May 18, 1970 that no one had said any- 8 thing to him on April 29, 1970 about the application dated, April 7, 1970. This divergence has also left \"Oii our minds a somewhat unhappy impression with respect to the whole matter. We need say nothing more on. this point.\n\nTurning to the second point we may first state the legal position relating to the testimony of an approver. Section 133, Indian Evidence Act, which falls in Ch. IX dealing generally with wit- .nesses, expressly provides that an accomplice is a competen:t witness and the conviction is not illegal merely because it proceeds on .uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to s. 114 which :falls in Ch. VII, dealing with Burden of Proof. Section 114 em- ; powers the court to presu)lle the existence of certain facts and the illustrations elucidate what the court may presume and make clear :by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that-an accomplice is unworthy of credit unless he is corroborated in mate- rial particulars : two examples ate also given to f1,1rther explain this subject. The statute thus permits the conviction of an il.ccused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of s. 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corrborated in material particulars. This rule of caution is traceable to the fact that an accomplice witness from the very nature of his position is a suspec_t. This rule is guided by long human experience and has become a rule of prudence of general application. The courts,\n\ntherefore, consider it i;>rudent to look for corroboration in material particulars for sustainmg the conviction of an accused person. An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associated by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of hih character or a fair witness. His pardon being conditional, to pleased the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent perc\n\nson. There is thus a real danger ofhis telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that 'the approver's testimony which is clearly admissible is also worthy of belief. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime\" and truly desires to make a clean breast of the whole affair by way of pcnetance. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration mus' be clearly present to the mind of the judge.\n\nIt is in this background that the court is required to determine the nature and extent of corroboration of an approver's evidence nc<:essaey in a given case for sustaining the conviction of the .accused. The corroborating evidence, broadly stated, must connect or tend to connect the accused with the crime charged. This is so because of the danger of the approver introducing some innocent person or persons into an otherwise true prosecution story. Such evidence, however, need not by itself be sufficient for sustaining the conviction of the accuse<r for in that case the evidence of the approver would be wholly unnecessary and mere surplusage.\n\nBefore considering the evidence on the record it may be borne in mind that. the court should evaluate the evidence of an approver de hors the corroborating pieces of evidence for if his testimony is it!clf uninspiring and unacceptable justifying its rejtion outright, then, it would be futile and wh6lly unnecessary to look for corroborating evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused with the crime charged. The offences for which the appellant has been convicted, it may be recalled, are of conspiracy with the approver (P.W. 1) as conremplated bys. 120-B, I.P.C., and forgery of valuable security as contemplated by s. 467, l.P.C. Before us the counsel for the State clearly confined his contention to the forgery of valuable security as. the real gravamen of the charge against the appellant, of course, in addition to the charge of conspiracy. We have, therefore, to consider the evidence bearing in mind the ingredients of these two offences.\n\nSo far as the charge under s. 120-B, I.P.C. is concerned the A only evidence is of the approver and the trial court expressly observed that there was no other direct evidence of conspiracy. After considering the case with respect to the offence under s. 467, l.P.C. we will tum to the charge of the substanti.ve offence of conspiracy.\n\nBefore dealing with the evidence on the offence under s. 467 it may be recalled that the present case was initiated at the instance of Ganga Ram, ex-Sarpanch, (P.W. 3) and SPme others when they presented a complaint (Ex. P-19) on March 18, 1961 to the Collector, Kota, long after the charge of the Panchayat had tal::en over by the Municipal Council. Ganga Ram appears also\n\nto have earlier made some complaints to the other officers but as nothing had come out of those complaints the Collector was ap- C proached with an allegation of misappropriation against Ram Narain in March, 1961. The Municipal Council, it is noteworthy, did not care to initiate the prosecution.\n\nBhanwar Lal, the approver, appearing as P. W. I has deposed that in June, 1958 he wanted to buy a plot of land for building his own house at Kota where he had been transferred from Udaipur as Train Clerk, Ko ta Junction. He was introduced to the appellant through one Kanhaiyalal. He gave to the appellant an application for that purpOSe and also paid Rs. 40 towards the price of the land and the appellant gave him a patta for a piece of land measuring 30'X45' without showing him its exact location. Inspite of repeate<I requests the appellant .did not show him the plot on certain pretexts for about four or five months. And then he showed him a plot measuring only 30'X35'. On objection being raised the appellant promised to give to P.W. l some more land elsewhere.\n\nIt appears that the approver and the appellant had by then become quite intimate. The approver gave to the appellant a contract for filling up the foundation for a house and also paid him about Rs. 8 or 9 hundred for which he took no receipt The approver also\n\nstarted teaching the appellant's children as a private tutor without charging anything. It was due to this intimacy that the appellant is said to have asked the approver to help him in completing the proceedings of some incomplete patta cases of the Gram l'anchayat. Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad.\n\nThe appellant introduced the approver to Mehta and Madan Mohan and asked them to complete the Panchayat records according to his directions. According to the approver he had prepared about 200 pattas and order sheets in about eight or ten days' time.\n\nIt is unnecessary to go into the remaining evidence of the approver at this stage. Suffice it to say that from his evidence it is not at all clear as to what interest the approver had in helping the appel-\n\n!ant in what is described as the forgery of the various documents.\n\nHis evidence, therefore, seems, prima facie, to be unimpressive and hardly trustworthy. The charge under s. 467, as already observed, is confined to four pattas issu¢. in favour of Suraj Singh, fool\n\nSingh and Mukat Behari. Two pattas issued in favour of Suraj Singh are Exs. P5 and P6 and one ptil'ta each in favour of Moo!\n\nSingh and Mukat Behari are Exs. P 9 and P 12 respectively. Before taking up these instances and scrutinising this evidence we may point out that there is no evidence worth the name and no argument was urged before us to attempt to show that in the case of the patta in question either the consideration received was less than th.e market value or the amount realised had been misappropriated and not duly deposited and credited in the appropriate account.\n\nThere is thus no question of unlawful gain or loss by cheating anybody. Now s. 467 provides for punishment for forging a document which purports to be a v.aluable security or a will etc. We are concerned with the offence of forging a valuable security.\n\nForgery is defined ins. 463, I.P.C. according to which whoever makes a false document or part of a document with intent to cause damage or injury to the public or to any person or. to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. SCction 30, I.P.C., defines \"valuable security\" to be a document which purports to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability or has not a certain legal right. We are, therefore, concerned only With forgery of valuable security. The fact that the pattas were granted in favour of the three persons mentioned above irregularly or contrary to any rules or direCtions applicable to such pattas would be wholly immaterial except to the extent it supports the case of forgery against the appellant.\n\nIn so far as the case of Suraj Singh is concerned there are two pattas Exs. P S and P 6, both dated May 5, 1958. The two plots measuring about 100 sq. yds. each were allotted to Suraj Singh for a consideration of Rs. 37.50 each with an additional sum of Rs. 2 each as plan fee. The consideration money has been described in these pattas to be \"Bhaint\". It is expressly recited in these pattas that the requisite fee of Rs. 30.50 has been deposited vide Rokarpanna. These pat/as are signed by the appellant and clearly there can be no question of forging anybody's signatures, so far as these two documents are concerned. Exhibit P-4 is the order-sheet With 'espect to Suraj Singh. According to tl1e approver he, the appellant and Badri Prasad, had fabricated the signatures of Ghasi and Babula! and the thumb impression of Panch Bhanwarlal (P.W. 8) on Ex. P-4. Except for the approver's bald statement there is no\n\nother evidence in support of this assertion. Babula! who was produced as P.W. 5 expressed his inability to say either way whther Ex. P-4 bore his signatures. He is illiterate and, according to his own evidence, can only put his signatures which also he is unable to identify. Ghasi was not produced by the prosecution. He was, however, produced in defence as D.W. 2 for admitting hfs signafures on Ex. P-11, the order sheet relating to Mukat Behari's case.\n\nBut when he appeared as a defence witness neither the prosecution nor the defence asked him any questions with respect to Ex. P-4.\n\nThe omission on the part of the prosecution to question him about Ex. P-4 in the absence of any cogent explanation is, in our opinion. quite significant. Some evidence has been led with respect to entries in Ex. P-1, the cash bpok of the Gram Panchayat but since the charges we are concerned with are under s. 467, and 120B, I.P.C. it is unnecessary, as indeed, irrelevant, to refer to that evi-· dence. Before us the counsel for the State expressly confined his case to the forgery of the patws which, according to him, c0nstitute valuable security within the contemplation of s. 467. With respect to Suraj Singh, therefore, we do not have any reliable evidenc•: which can be said to corroborate the approver, assuming the approver's evidence to be acceptable which we are not inclined to hold.\n\nWe now turn to Moo! Singh's patta Ex. P-9. This patta relates to an area measuring 100 sq. yds. and the consideration is stated to be Rs. 30 with an additional sum of Rs. 2 as plan fee.\n\nHere again, the consideration is described as \"Bliaint\". Exhibit P-9 also contains an assertion that the requisite amount of Rs. 32 had been deposited vide Rokarpf!!!a. This patta is also signed by Ram Narain and there is no question of forging any one else's signatures.\n\nThe order sheet relating to this patta is Ex. P-8 which is signed by the appellant and also purports to be signed by Onkar and Ghasi.\n\nThe position of this patta is no better than that of Ex. P-5 which is in favour of Suraj Singh.\n\nMukat Behari's patta is Ex. P-12 and is for an area measuring 227 sq. yds. and 7 sq. ft.\n\nThe consideration is stated to be Rs. 100, inclusive of Rs. 2 as plan fee. Here also the amount is statt:<l to have been deposited as per Rokarpana and the receipt is signed by one M. B. Sharma. The order sheet relating to this patta is Ex.\n\nP-11 which purports t6 bear the signatures of Ghasi and Madan Lal, Ghasi (D.W. 2) has deposed about his signatures on Ex. P-\n\n11, as already noticed.\n\nMukat Behari's case, if anything, becomes more doubtful because of the evidence of Ghasi.\n\nSu raj Singli was produced as P. W. 2 but he did not support the prosecution and was allowea to be cross-examined by the public prosecutor. Quite clearly his evidence does not show that he was in any way cheated by the appellant. Shri Ganga Ram, the original complainant, has appeared as P.W. 3.\n\nAccording to him he\n\nA had taken over charge from the appellant on August 31, 1958 and continued to work as Sarpanch till the charge was hal!ded over to the Municipal Council or the Municipal Board. When he want to the office of the Municipal Board to hand over charge, according to his own statement, the appellant had .also gone with him, . It was after the abolition of the.Panchayat that he learnt that the appellant was selling land and issuing pattas and it was then that he made the complaint Ex. P-19. Before handing over charge also he had made certain complaints against the appellant on which Shri Mehta, the Division Panchayat Officer had made enquiries but those complaints were not substantiated. From his evidence it seems clear that the relations between him and the appellant were far from cordial. Indeed, the appellant had also complained against this witness of keeping some money belonging to the Pan charat. Even otherwise his evidence is wholly unimpressive and is d1filcult to accept on its face value.\n\nAgain, .when we consider the evidence of Madan Lal (D. W. 1) and Ghasi son of Ramlal (D.W. 2) both Panchas of the Panchayat in question upto 1958 and the evidence of Ganesh Ram (P.W. 4) the evidence of the approver becomes still more unacceptable.\n\nMadan Lal has stated that he was a Panch of Khand Gawarl Panchayat upto 1959 and a piece of land was sold to Mukat Behari in 1958 when he was present in the meting of the Panchayat.\n\nSignatures on Ex. P-11 were identified. by him. The Panchayat alsn sold pieces of land to Moo! Singh and Suraj Singh. On his evidence Ex. P 11 is clearly a genuine document. Ghasi (D.W.\n\n2) also admits his signatures on Ex. P-11. In face of his evidence it is not understood how his signatures can be held to be forged.\n\nGanga Ram (P.W. 4) has deposed that he was not literate and could only sign his name. After so deposing he expressTy stated that he was unable to identify his own signatures. His evidence, therefore, also losses its importance. In face of this materia~ we find that the appellant's conviction under s. 467. I.P.C. is wholly unsustainable on the existing evidence. The approver's testimony is most uninspiring and there is no corroboration worth the name.\n\nWe now turn to the charge of criminal conspiracy under s. 120-B, I.P.C. as a separate and distinct offence independent of the offience under s. 467, l.P.C. No doubt in almost every case of\n\ncopiracy it is generally a matter of inference, direct independent evidence being soldom, if ever, forthcoming.\n\nBut inferences are nonnally deduced from a\\)ts of parties in pursuance of apparent criminal purpose in common between them. Of such criminal acts the evidence in the case under appeal has not been accepted by us.\n\nThe evidence of tile approver (P.W. 1) who would of course.be competent to prove the substantive charge of conspiracy, which has n6t been believed by us with respect to forgery is not easy to accept with respect to the charge of conspiracy. His version with regard 15-L796Sup.C.I. 173\n\nto it is far from convincing. Though he claims to have prepared 200 pattas and \"roer sheets, evidence regarding only four was led and that too not trustworthy. For the first time he disclosed the story to the police after arrest in expectation of help from them. On his evidence uncorroborated as it is, the charge of conspiracy as framed cannot be sustained. We have, therefore, no option but to allow this appeal, quash the appellant's conviction and acquit him.\n\nG.C.\n\nAppeal allowed.", "total_entities": 148, "entities": [{"text": "RAMNARAIN", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "Ram Narain", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN", "label": "RESPONDENT", "start_char": 14, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 69, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "I.D. 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S. Dave", "label": "PETITIONER", "start_char": 4187, "end_char": 4212, "source": "ner", "metadata": {"in_sentence": "Nuruddin Ahmad V. S. Dave and Subhag Mal Jain, for the appellant."}}, {"text": "Subhag Mal Jain", "label": "LAWYER", "start_char": 4217, "end_char": 4232, "source": "ner", "metadata": {"in_sentence": "Nuruddin Ahmad V. S. Dave and Subhag Mal Jain, for the appellant."}}, {"text": "K. Baldev Mehta", "label": "LAWYER", "start_char": 4254, "end_char": 4269, "source": "ner", "metadata": {"in_sentence": "K. Baldev Mehta, for the respQildent."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4336, "end_char": 4339, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by DuA, J.-In this appeal by special leave from the judgment of the Rajasthan High Court Ram Narain, appellant, challenges his conviction for the offences under ss."}}, {"text": "Ram Narain", "label": "PETITIONER", "start_char": 4422, "end_char": 4432, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by DuA, J.-In this appeal by special leave from the judgment of the Rajasthan High Court Ram Narain, appellant, challenges his conviction for the offences under ss.", "canonical_name": "Ram Narain"}}, {"text": "ss. 467 and 120B", "label": "PROVISION", "start_char": 4494, "end_char": 4510, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4512, "end_char": 4517, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sessions Judge, Kota", "label": "COURT", "start_char": 4593, "end_char": 4613, "source": "ner", "metadata": {"in_sentence": "467 and 120B, I.P.C. He, along with three others, had been committed for trial in the court of Sessions Judge, Kota on ten charges for offences under ss."}}, {"text": "ss. 467, 468, 420 and 120B", "label": "PROVISION", "start_char": 4648, "end_char": 4674, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4676, "end_char": 4681, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4803, "end_char": 4808, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dadvada", "label": "GPE", "start_char": 5051, "end_char": 5058, "source": "ner", "metadata": {"in_sentence": "That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- ."}}, {"text": "Sarvashri Madan Mohan", "label": "OTHER_PERSON", "start_char": 5095, "end_char": 5116, "source": "ner", "metadata": {"in_sentence": "That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- ."}}, {"text": "Badriprasad", "label": "OTHER_PERSON", "start_char": 5118, "end_char": 5129, "source": "ner", "metadata": {"in_sentence": "That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- .", "canonical_name": "l'ladri Prasad"}}, {"text": "Bakshi Qajpatsingh", "label": "JUDGE", "start_char": 5134, "end_char": 5152, "source": "ner", "metadata": {"in_sentence": "That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- .", "canonical_name": "Bakshi Gajpat Singh"}}, {"text": "Moolsingh", "label": "OTHER_PERSON", "start_char": 5411, "end_char": 5420, "source": "ner", "metadata": {"in_sentence": "mit offences of forgery using forged documents as genuine and of cheating the public, Municipal Board and the Government in respect of the sale of some pieces of land belonging earlier to the G.ram Panchayat Khand-' gawari in favour of Moolsingh, Mukatbeharilal and Surajsingh and that you did some act to wit forged the proceedings of the Pattas in favour of the above said persons and the signatures and the thumb impressions of the Panchas of the defunct Gram Panchayat and made false entries in the Cash Book of the said Panchayat of \\he; rear ~957-~8 at pages 42 and 45 and affixed the\n\n;,.", "canonical_name": "Moo! Singh"}}, {"text": "Mukatbeharilal", "label": "OTHER_PERSON", "start_char": 5422, "end_char": 5436, "source": "ner", "metadata": {"in_sentence": "mit offences of forgery using forged documents as genuine and of cheating the public, Municipal Board and the Government in respect of the sale of some pieces of land belonging earlier to the G.ram Panchayat Khand-' gawari in favour of Moolsingh, Mukatbeharilal and Surajsingh and that you did some act to wit forged the proceedings of the Pattas in favour of the above said persons and the signatures and the thumb impressions of the Panchas of the defunct Gram Panchayat and made false entries in the Cash Book of the said Panchayat of \\he; rear ~957-~8 at pages 42 and 45 and affixed the\n\n;,.", "canonical_name": "Mukat Behari Lal"}}, {"text": "Surajsingh", "label": "OTHER_PERSON", "start_char": 5441, "end_char": 5451, "source": "ner", "metadata": {"in_sentence": "mit offences of forgery using forged documents as genuine and of cheating the public, Municipal Board and the Government in respect of the sale of some pieces of land belonging earlier to the G.ram Panchayat Khand-' gawari in favour of Moolsingh, Mukatbeharilal and Surajsingh and that you did some act to wit forged the proceedings of the Pattas in favour of the above said persons and the signatures and the thumb impressions of the Panchas of the defunct Gram Panchayat and made false entries in the Cash Book of the said Panchayat of \\he; rear ~957-~8 at pages 42 and 45 and affixed the\n\n;,.", "canonical_name": "Suraj Singh"}}, {"text": "sections 457, 468 and 420", "label": "PROVISION", "start_char": 6031, "end_char": 6056, "source": "regex", "metadata": {"statute": null}}, {"text": "section 120B", "label": "PROVISION", "start_char": 6181, "end_char": 6193, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6201, "end_char": 6206, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 467", "label": "PROVISION", "start_char": 6656, "end_char": 6667, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Mukat Behari", "label": "OTHER_PERSON", "start_char": 6894, "end_char": 6906, "source": "ner", "metadata": {"in_sentence": "( 5) That during the same period, you forged patta procgs in antedates in respect of the sale of land 50'X 50' belonging earlier to the defunct Gram Panchayat Khandgaonri in favour of Mukat Behari and put your siatures on the forged document purporting to be a valuaijle secm; ity.,", "canonical_name": "Mukat Behari Lal"}}, {"text": "Mukat Beharilal", "label": "OTHER_PERSON", "start_char": 7023, "end_char": 7038, "source": "ner", "metadata": {"in_sentence": "to wit.the patta in favour of Mukat Beharilal and gave it to Shri Mukat Behari and that you thereby committed an offence punishable under section 467 of the Indian Peiµ!", "canonical_name": "Mukat Behari Lal"}}, {"text": "section 467", "label": "PROVISION", "start_char": 7131, "end_char": 7142, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 467", "label": "PROVISION", "start_char": 7624, "end_char": 7635, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7643, "end_char": 7648, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gangaram", "label": "WITNESS", "start_char": 7745, "end_char": 7753, "source": "ner", "metadata": {"in_sentence": "Village Khand Gawadi had before October, 1958 a panchayat of which Gangaram (P.W. 3) was the Sarpanch and the aopellant its Up-Sarpanch."}}, {"text": "16-10-58", "label": "DATE", "start_char": 8053, "end_char": 8061, "source": "ner", "metadata": {"in_sentence": "11288/F.l(a) 48L 59/A/55 dated 16-10-58) the Rajasthan Government extended the limits of the municipal council, Kota, amongst other villages, to Khand\n\n466 SUPREME COURT REJl'\"ORTS\n\n[1973] 3 S.C.R.\n\nGawadi also."}}, {"text": "Rajasthan Government", "label": "ORG", "start_char": 8067, "end_char": 8087, "source": "ner", "metadata": {"in_sentence": "11288/F.l(a) 48L 59/A/55 dated 16-10-58) the Rajasthan Government extended the limits of the municipal council, Kota, amongst other villages, to Khand\n\n466 SUPREME COURT REJl'\"ORTS\n\n[1973] 3 S.C.R.\n\nGawadi also."}}, {"text": "Kota", "label": "GPE", "start_char": 8134, "end_char": 8138, "source": "ner", "metadata": {"in_sentence": "11288/F.l(a) 48L 59/A/55 dated 16-10-58) the Rajasthan Government extended the limits of the municipal council, Kota, amongst other villages, to Khand\n\n466 SUPREME COURT REJl'\"ORTS\n\n[1973] 3 S.C.R.\n\nGawadi also."}}, {"text": "January 7, 1959", "label": "DATE", "start_char": 8316, "end_char": 8331, "source": "ner", "metadata": {"in_sentence": "The Municipal Council took over charge from the Gram Panchayat of this village on January 7, 1959."}}, {"text": "Bhanwarlal", "label": "PETITIONER", "start_char": 8598, "end_char": 8608, "source": "ner", "metadata": {"in_sentence": "According to the prosecution version during the months of November, 1959 to January, 1960, long after the village panchayat had ceased to exist, the appellant entered into a conspiracy with the other accused persons (tried along with him in the sessions court) and Bhanwarlal son of Bapulal (who became an approver and appeared as P.W.\n\n1 in the case) to cheat the members of the public, the Municipal Council, Kota and the Government.", "canonical_name": "Bhanwar Lal"}}, {"text": "Bapulal", "label": "OTHER_PERSON", "start_char": 8616, "end_char": 8623, "source": "ner", "metadata": {"in_sentence": "According to the prosecution version during the months of November, 1959 to January, 1960, long after the village panchayat had ceased to exist, the appellant entered into a conspiracy with the other accused persons (tried along with him in the sessions court) and Bhanwarlal son of Bapulal (who became an approver and appeared as P.W.\n\n1 in the case) to cheat the members of the public, the Municipal Council, Kota and the Government."}}, {"text": "Municipal Council, Kota", "label": "ORG", "start_char": 8725, "end_char": 8748, "source": "ner", "metadata": {"in_sentence": "According to the prosecution version during the months of November, 1959 to January, 1960, long after the village panchayat had ceased to exist, the appellant entered into a conspiracy with the other accused persons (tried along with him in the sessions court) and Bhanwarlal son of Bapulal (who became an approver and appeared as P.W.\n\n1 in the case) to cheat the members of the public, the Municipal Council, Kota and the Government."}}, {"text": "Khand Gawadi", "label": "GPE", "start_char": 8978, "end_char": 8990, "source": "ner", "metadata": {"in_sentence": "The modus operandi for carrying out the object of this conspiracy was to persuade such members of the public as were amenable to their persuasion to part with money for purchasing residential plots in village Khand Gawadi; and in furtherance of this conspiracy they forged sale proceedings and pattas_ by ante-dating them and forging signatures of the other Panchas on such pattas and sale proceedings."}}, {"text": "Moo! Singh", "label": "OTHER_PERSON", "start_char": 9422, "end_char": 9432, "source": "ner", "metadata": {"in_sentence": "The trial, as is obvious, from the charges reproduced above, was confined to the sale proceedings and pattas in the names of Moo!", "canonical_name": "Moo! Singh"}}, {"text": "Mukat Beharilal", "label": "WITNESS", "start_char": 9434, "end_char": 9449, "source": "ner", "metadata": {"in_sentence": "Singh, Mukat Beharilal and Suraj Singh."}}, {"text": "Suraj Singh. Bhanwarlal", "label": "WITNESS", "start_char": 9454, "end_char": 9477, "source": "ner", "metadata": {"in_sentence": "Singh, Mukat Beharilal and Suraj Singh."}}, {"text": "Bhanwarlal", "label": "PETITIONER", "start_char": 9868, "end_char": 9878, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge, after considering the prosecution evidence and the evidence of the defence witnesses, produced by the appellant, upheld the prosecution case against the appellant holding that he and the approver, Bhanwarlal, had joined E hands in forging the sale proceedings and pattas mentioned in the charges and also in forging thereon the signatures of the other Panchas.", "canonical_name": "Bhanwar Lal"}}, {"text": "Government of Rajasthan F", "label": "ORG", "start_char": 10259, "end_char": 10284, "source": "ner", "metadata": {"in_sentence": "In fact, according to the trial court, it was the appellant who had dragged Bhanwarlal into the conspiracy and their activities were motivated by a desire to cheat the Municipal Council, Kota, the members of the public and the Government of Rajasthan F by making them part with possession of their valuable land in village Khand Gawadi for nominal price."}}, {"text": "s. 120B", "label": "PROVISION", "start_char": 10435, "end_char": 10442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 467", "label": "PROVISION", "start_char": 10527, "end_char": 10533, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10535, "end_char": 10540, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 120B", "label": "PROVISION", "start_char": 10705, "end_char": 10712, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 467", "label": "PROVISION", "start_char": 10784, "end_char": 10790, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10792, "end_char": 10797, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bakshi Gajpat Singh", "label": "JUDGE", "start_char": 11015, "end_char": 11034, "source": "ner", "metadata": {"in_sentence": "The\n\nother accused persons Bakshi Gajpat Singh, Madan Mohan and l'ladri Prasad were acquitted.", "canonical_name": "Bakshi Gajpat Singh"}}, {"text": "Madan Mohan", "label": "OTHER_PERSON", "start_char": 11036, "end_char": 11047, "source": "ner", "metadata": {"in_sentence": "The\n\nother accused persons Bakshi Gajpat Singh, Madan Mohan and l'ladri Prasad were acquitted.", "canonical_name": "Madan Mohan Vijay"}}, {"text": "l'ladri Prasad", "label": "OTHER_PERSON", "start_char": 11052, "end_char": 11066, "source": "ner", "metadata": {"in_sentence": "The\n\nother accused persons Bakshi Gajpat Singh, Madan Mohan and l'ladri Prasad were acquitted.", "canonical_name": "l'ladri Prasad"}}, {"text": "N uruddin Ahmad", "label": "WITNESS", "start_char": 11483, "end_char": 11498, "source": "ner", "metadata": {"in_sentence": "In this Court Shri N uruddin Ahmad, the learned counsel for the appellant at the outset pointed out that in the High Court an application had been made on behalf of the appellant on April 7,\n\n1970 to recall Gangaram (P.W. 1) for cross-examining him and also for examining Mukat Beharilal and M. L. Parekh Deputy Superintendent of Police in charge, as court witnesses, but although arguments were addressed on that application at some length the High Court did not care to deal with the matter or even to refer to it in its judgment."}}, {"text": "April 7,\n\n1970", "label": "DATE", "start_char": 11646, "end_char": 11660, "source": "ner", "metadata": {"in_sentence": "In this Court Shri N uruddin Ahmad, the learned counsel for the appellant at the outset pointed out that in the High Court an application had been made on behalf of the appellant on April 7,\n\n1970 to recall Gangaram (P.W. 1) for cross-examining him and also for examining Mukat Beharilal and M. L. Parekh Deputy Superintendent of Police in charge, as court witnesses, but although arguments were addressed on that application at some length the High Court did not care to deal with the matter or even to refer to it in its judgment."}}, {"text": "M. L. Parekh", "label": "WITNESS", "start_char": 11756, "end_char": 11768, "source": "ner", "metadata": {"in_sentence": "In this Court Shri N uruddin Ahmad, the learned counsel for the appellant at the outset pointed out that in the High Court an application had been made on behalf of the appellant on April 7,\n\n1970 to recall Gangaram (P.W. 1) for cross-examining him and also for examining Mukat Beharilal and M. L. Parekh Deputy Superintendent of Police in charge, as court witnesses, but although arguments were addressed on that application at some length the High Court did not care to deal with the matter or even to refer to it in its judgment."}}, {"text": "V. S. Dave", "label": "OTHER_PERSON", "start_char": 12186, "end_char": 12196, "source": "ner", "metadata": {"in_sentence": "Annexure D is said to be a copy of the application filed in the High Court by Shri V. S. Dave, Advocate for the appellant, under s. 540, Cr."}}, {"text": "s. 540", "label": "PROVISION", "start_char": 12232, "end_char": 12238, "source": "regex", "metadata": {"statute": null}}, {"text": "Ganga Ram", "label": "WITNESS", "start_char": 12346, "end_char": 12355, "source": "ner", "metadata": {"in_sentence": "That in the above noted appeal prosecution examined Ganga Ram P.W. 3 as a witness."}}, {"text": "sections 409", "label": "PROVISION", "start_char": 12494, "end_char": 12506, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4", "label": "PROVISION", "start_char": 12620, "end_char": 12630, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 12644, "end_char": 12649, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "of Gangaram", "label": "WITNESS", "start_char": 12696, "end_char": 12707, "source": "ner", "metadata": {"in_sentence": "That the judgment in case under sections 4~9 l!lld 477, I.P.C. was delivered subsequent to the eicammation\n\nof Gangaram as P.W. 3 and as such he could not be cross-examined in respect of his earlier cpmplaints and fact of enmity and false concention of cases -against the appellant could not be put to him."}}, {"text": "Mukat Behari Lal", "label": "OTHER_PERSON", "start_char": 13016, "end_char": 13032, "source": "ner", "metadata": {"in_sentence": "That Mukat Behari Lal has been withheld by the prosecution.", "canonical_name": "Mukat Behari Lal"}}, {"text": "Mukat Behari Lal", "label": "WITNESS", "start_char": 14106, "end_char": 14122, "source": "ner", "metadata": {"in_sentence": "I Mukat Behari Lal and the Investigating Officer as Court witnesses or grant permission to appellant to summon them.\""}}, {"text": "High Court of Judicature for Rajasthan at Jodhpur", "label": "COURT", "start_char": 14431, "end_char": 14480, "source": "ner", "metadata": {"in_sentence": "283 of 67, Ramnarain v.\n\nState in the High Court of Judicature for Rajasthan at Jodhpur."}}, {"text": "Gattani", "label": "JUDGE", "start_char": 14562, "end_char": 14569, "source": "ner", "metadata": {"in_sentence": "That slip reads :\n\n\"This application was found lying in the Chamber of Hon'ble Gattani J. How this application was placed and who placed this application there."}}, {"text": "G. K. Sharma", "label": "OTHER_PERSON", "start_char": 15004, "end_char": 15016, "source": "ner", "metadata": {"in_sentence": "Sd/- G. K. Sharma\n\nDy."}}, {"text": "s. 561", "label": "PROVISION", "start_char": 15134, "end_char": 15140, "source": "regex", "metadata": {"statute": null}}, {"text": "May 18, 1970", "label": "DATE", "start_char": 15296, "end_char": 15308, "source": "ner", "metadata": {"in_sentence": "The following order dated May 18, 1970 (as translated into English) was recorded by the learned Judge in Hindi :- H \"Perused the applications dated 7-4-70 and 30--4-70 presented on behalf of the appellant."}}, {"text": "7-4-70", "label": "DATE", "start_char": 15418, "end_char": 15424, "source": "ner", "metadata": {"in_sentence": "The following order dated May 18, 1970 (as translated into English) was recorded by the learned Judge in Hindi :- H \"Perused the applications dated 7-4-70 and 30--4-70 presented on behalf of the appellant."}}, {"text": "30--4-70", "label": "DATE", "start_char": 15429, "end_char": 15437, "source": "ner", "metadata": {"in_sentence": "The following order dated May 18, 1970 (as translated into English) was recorded by the learned Judge in Hindi :- H \"Perused the applications dated 7-4-70 and 30--4-70 presented on behalf of the appellant."}}, {"text": "17-4-70", "label": "DATE", "start_char": 15504, "end_char": 15511, "source": "ner", "metadata": {"in_sentence": "I have decided the case on 17-4-70 and there is therefore no question of saying anything on the merits now."}}, {"text": "Chiranjilal Agarwal", "label": "OTHER_PERSON", "start_char": 15611, "end_char": 15630, "source": "ner", "metadata": {"in_sentence": "As far as IreJnember Shri Chiranjilal Agarwal did mention during the course of the arguments on 7-4-70 that he wanted to present an application."}}, {"text": "29-4-70", "label": "DATE", "start_char": 16007, "end_char": 16014, "source": "ner", "metadata": {"in_sentence": "I never saw the application dated 7-4-70 in my Chan1ber, nor anyone said anything to me on 29-4-70 about this application."}}, {"text": "H. D. GATTANI", "label": "JUDGE", "start_char": 16045, "end_char": 16058, "source": "ner", "metadata": {"in_sentence": "Sd/- H. D. GATTANI J.\" The appellant's grievance before us is that non-consideratior of his application dated April 7, 1970 has resulted in grave miscarriage of justice."}}, {"text": "Nuruddin Ahmed", "label": "OTHER_PERSON", "start_char": 16443, "end_char": 16457, "source": "ner", "metadata": {"in_sentence": "The second point strongly pressed by Shri Nuruddin Ahmed is that the appellant's conviction is based solely on the testimony of Banwari Lal (P.W. 1), the approver, whose evidenee has not been corroborated in material paruculars, connecting the appellant with the alleged offence in question."}}, {"text": "Banwari Lal", "label": "WITNESS", "start_char": 16529, "end_char": 16540, "source": "ner", "metadata": {"in_sentence": "The second point strongly pressed by Shri Nuruddin Ahmed is that the appellant's conviction is based solely on the testimony of Banwari Lal (P.W. 1), the approver, whose evidenee has not been corroborated in material paruculars, connecting the appellant with the alleged offence in question."}}, {"text": "s. 561", "label": "PROVISION", "start_char": 17813, "end_char": 17819, "source": "regex", "metadata": {"statute": null}}, {"text": "April 29, 1970", "label": "DATE", "start_char": 18536, "end_char": 18550, "source": "ner", "metadata": {"in_sentence": "The counsel for the State was also\n\nunable to explain the divergence between the order of the Deputy .Registrar dated April 29, 1970 and the learned Judge's oblerva\n\ntion in his order dated May 18, 1970 that no one had said any- 8 thing to him on April 29, 1970 about the application dated, April 7, 1970."}}, {"text": "Section 133", "label": "PROVISION", "start_char": 18854, "end_char": 18865, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 18867, "end_char": 18886, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 114", "label": "PROVISION", "start_char": 19259, "end_char": 19265, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Section 114", "label": "PROVISION", "start_char": 19321, "end_char": 19332, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 20002, "end_char": 20008, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 23632, "end_char": 23637, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 467", "label": "PROVISION", "start_char": 23692, "end_char": 23698, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 120", "label": "PROVISION", "start_char": 24050, "end_char": 24056, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 24060, "end_char": 24065, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 467", "label": "PROVISION", "start_char": 24274, "end_char": 24280, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 467", "label": "PROVISION", "start_char": 24413, "end_char": 24419, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "March 18, 1961", "label": "DATE", "start_char": 24589, "end_char": 24603, "source": "ner", "metadata": {"in_sentence": "P-19) on March 18, 1961 to the Collector, Kota, long after the charge of the Panchayat had tal::en over by the Municipal Council."}}, {"text": "Ram Narain", "label": "PETITIONER", "start_char": 24921, "end_char": 24931, "source": "ner", "metadata": {"in_sentence": "Ganga Ram appears also\n\nto have earlier made some complaints to the other officers but as nothing had come out of those complaints the Collector was ap- C proached with an allegation of misappropriation against Ram Narain in March, 1961.", "canonical_name": "Ram Narain"}}, {"text": "Bhanwar Lal", "label": "WITNESS", "start_char": 25032, "end_char": 25043, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, the approver, appearing as P. W. I has deposed that in June, 1958 he wanted to buy a plot of land for building his own house at Kota where he had been transferred from Udaipur as Train Clerk, Ko ta Junction."}}, {"text": "Udaipur", "label": "GPE", "start_char": 25213, "end_char": 25220, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, the approver, appearing as P. W. I has deposed that in June, 1958 he wanted to buy a plot of land for building his own house at Kota where he had been transferred from Udaipur as Train Clerk, Ko ta Junction."}}, {"text": "Kanhaiyalal", "label": "OTHER_PERSON", "start_char": 25300, "end_char": 25311, "source": "ner", "metadata": {"in_sentence": "He was introduced to the appellant through one Kanhaiyalal."}}, {"text": "Bhanwar Lal", "label": "PETITIONER", "start_char": 26332, "end_char": 26343, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad.", "canonical_name": "Bhanwar Lal"}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 26442, "end_char": 26447, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad."}}, {"text": "Madan Mohan Vijay", "label": "OTHER_PERSON", "start_char": 26483, "end_char": 26500, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad.", "canonical_name": "Madan Mohan Vijay"}}, {"text": "Badri Prasad", "label": "OTHER_PERSON", "start_char": 26505, "end_char": 26517, "source": "ner", "metadata": {"in_sentence": "Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad.", "canonical_name": "l'ladri Prasad"}}, {"text": "s. 467", "label": "PROVISION", "start_char": 27152, "end_char": 27158, "source": "regex", "metadata": {"statute": null}}, {"text": "Suraj Singh", "label": "OTHER_PERSON", "start_char": 27228, "end_char": 27239, "source": "ner", "metadata": {"in_sentence": "The charge under s. 467, as already observed, is confined to four pattas issu¢. in favour of Suraj Singh, fool\n\nSingh and Mukat Behari.", "canonical_name": "Suraj Singh"}}, {"text": "Singh", "label": "WITNESS", "start_char": 27247, "end_char": 27252, "source": "ner", "metadata": {"in_sentence": "The charge under s. 467, as already observed, is confined to four pattas issu¢. in favour of Suraj Singh, fool\n\nSingh and Mukat Behari."}}, {"text": "s. 467", "label": "PROVISION", "start_char": 27906, "end_char": 27912, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 28113, "end_char": 28118, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 28481, "end_char": 28486, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 5, 1958", "label": "DATE", "start_char": 29201, "end_char": 29212, "source": "ner", "metadata": {"in_sentence": "P S and P 6, both dated May 5, 1958."}}, {"text": "Ghasi", "label": "OTHER_PERSON", "start_char": 29878, "end_char": 29883, "source": "ner", "metadata": {"in_sentence": "According to tl1e approver he, the appellant and Badri Prasad, had fabricated the signatures of Ghasi and Babula!"}}, {"text": "Babula", "label": "OTHER_PERSON", "start_char": 29888, "end_char": 29894, "source": "ner", "metadata": {"in_sentence": "According to tl1e approver he, the appellant and Badri Prasad, had fabricated the signatures of Ghasi and Babula!"}}, {"text": "Panch Bhanwarlal", "label": "WITNESS", "start_char": 29924, "end_char": 29940, "source": "ner", "metadata": {"in_sentence": "and the thumb impression of Panch Bhanwarlal (P.W. 8) on Ex."}}, {"text": "Babula", "label": "WITNESS", "start_char": 30061, "end_char": 30067, "source": "ner", "metadata": {"in_sentence": "Babula!"}}, {"text": "Ghasi", "label": "WITNESS", "start_char": 30292, "end_char": 30297, "source": "ner", "metadata": {"in_sentence": "Ghasi was not produced by the prosecution."}}, {"text": "s. 467", "label": "PROVISION", "start_char": 30913, "end_char": 30919, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 30931, "end_char": 30936, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 467", "label": "PROVISION", "start_char": 31184, "end_char": 31190, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Onkar", "label": "OTHER_PERSON", "start_char": 31980, "end_char": 31985, "source": "ner", "metadata": {"in_sentence": "P-8 which is signed by the appellant and also purports to be signed by Onkar and Ghasi."}}, {"text": "M. B. Sharma", "label": "OTHER_PERSON", "start_char": 32366, "end_char": 32378, "source": "ner", "metadata": {"in_sentence": "Here also the amount is statt:<l to have been deposited as per Rokarpana and the receipt is signed by one M. B. Sharma."}}, {"text": "Madan Lal", "label": "WITNESS", "start_char": 32483, "end_char": 32492, "source": "ner", "metadata": {"in_sentence": "P-11 which purports t6 bear the signatures of Ghasi and Madan Lal, Ghasi (D.W. 2) has deposed about his signatures on Ex."}}, {"text": "Mukat Behari", "label": "WITNESS", "start_char": 32578, "end_char": 32590, "source": "ner", "metadata": {"in_sentence": "Mukat Behari's case, if anything, becomes more doubtful because of the evidence of Ghasi."}}, {"text": "Su raj Singli", "label": "WITNESS", "start_char": 32669, "end_char": 32682, "source": "ner", "metadata": {"in_sentence": "Su raj Singli was produced as P. W. 2 but he did not support the prosecution and was allowea to be cross-examined by the public prosecutor."}}, {"text": "August 31, 1958", "label": "DATE", "start_char": 33033, "end_char": 33048, "source": "ner", "metadata": {"in_sentence": "According to him he\n\nA had taken over charge from the appellant on August 31, 1958 and continued to work as Sarpanch till the charge was hal!ded over to the Municipal Council or the Municipal Board."}}, {"text": "Ramlal", "label": "WITNESS", "start_char": 34072, "end_char": 34078, "source": "ner", "metadata": {"in_sentence": "Again, .when we consider the evidence of Madan Lal (D. W. 1) and Ghasi son of Ramlal (D.W. 2) both Panchas of the Panchayat in question upto 1958 and the evidence of Ganesh Ram (P.W. 4) the evidence of the approver becomes still more unacceptable."}}, {"text": "Ganesh Ram", "label": "WITNESS", "start_char": 34160, "end_char": 34170, "source": "ner", "metadata": {"in_sentence": "Again, .when we consider the evidence of Madan Lal (D. W. 1) and Ghasi son of Ramlal (D.W. 2) both Panchas of the Panchayat in question upto 1958 and the evidence of Ganesh Ram (P.W. 4) the evidence of the approver becomes still more unacceptable."}}, {"text": "Madan Lal", "label": "PETITIONER", "start_char": 34243, "end_char": 34252, "source": "ner", "metadata": {"in_sentence": "Madan Lal has stated that he was a Panch of Khand Gawarl Panchayat upto 1959 and a piece of land was sold to Mukat Behari in 1958 when he was present in the meting of the Panchayat."}}, {"text": "s. 467", "label": "PROVISION", "start_char": 35046, "end_char": 35052, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 35054, "end_char": 35059, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 120", "label": "PROVISION", "start_char": 35258, "end_char": 35264, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 35268, "end_char": 35273, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 467", "label": "PROVISION", "start_char": 35344, "end_char": 35350, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]}
{"document_id": "1973_3_477_491_EN", "year": 1973, "text": "I . ~\n\nA.C. SHARMA\n\nDELHI ADMINISTRATION\n\nFebruary .5, 1973\n\n[A. ALAGIRISWAM~, I. D. ~UA AND C. A. VAIDIALINGAM, JJ.]\n\n11 . Special Pobce Estc.bbsllment Act 25 of 1946--Notification B De \"3 of Act, being notification No. 7 /5155-A.V.D. dated Nol'emunde(, 5i966 conferring jurisdiction Oil Delhi Special Police Establislzbtr 'to inl'; stigate inter alia offences under 161, 165 1B5A Indian Penal mtdl!t nd o{}ences under the Prevention of Corruption Act 2 of 19~7- Co e 0\n\nA C t' D\n\nI . J . dction o/ the 1111orrup zon epartment o De/lu Administration\n\nft~ltr completely disp!aced-Sclte'!u; s o~ Ac_r 25 of 19~6 and Act 2 C of 1947-Pasuasta vlue f!l dmrrllstrllltve tnsfrullons m interpreting\n\nsroJure-Defect Ill znve.rllgatton. effect of-!~ ord 'elsewhere' ' in r.SA(l)(d) of Act 2 of 1947, meaning of.\n\nThe appellant was the dealing clerk in the labour office Delhi in April 1965. He v.-as tried and convicted by the Special Judge D~!lhi under s. 5(2) of Prevention of Corruptio.ll Act and section 161 of the Indian Penal Code. His appeal to the High Court of Delhi was dis- D mis>ed by the Single Judge.\n\nIn appeal by sp.ccial leave to this Cotrrt it was contended that the Delhi Special Police Establishment Act, 19-U>, ; u amended, prescribes spcciul powers and procedure for inn:stigation of ofTnccs of bribery and co'rruptio.r; and as the appellant was an emploree of the Central Puhlic Work Department offences against him rould only he invtigatd by the Special Police Establishment. His\n\nP~-ution based on investigation by the Deputy Superintendent of the [ Anu-corruptio.r, Department of the Delhi Administration was therefore,\n\nacwrding to the appell:wt, illegal. This contention, raised for the\n\n~~~ tunc in this Court. was allowed to be urged in view of the di!ci-\n\nSIO!J of this court in Allllluwalia's case. •\n\n! F\n\nl~ELD : (i) Statement of object~ and reasons for introducing . a !ill 1n the leghlature is not admissibl<! ;1~ a; ll uiJ to the C?nstrucllon . the statute as enacted far )es<; can it control the meanmg of the\n\nctll',,.lwords used in the Act: Jt can only be referred to for the limited ~tse of ascertaining the circumstances which actuateJ the spons..'t ( 1 B11J to introduce H nnd the purpose for doin!! so. [4840-H}\n\nto fii) The preamble f n statute, which is ofte-n decribd ns a key amhile. undmtanding f it, may Jcgitimatc.ly be consult~J t~. solve nn llh. S0'1Y or to artam nnd fix the mcamng of word~ 10 thctr cookxt ',· ~,)c othcrwhe hc:ir more mcmin\"~ than one. It mav alford useful '' ., Ita nee ll t • \" B if th • nactruent i• ,1· s o Wh;1t the tatutc inknJs to reach. ut ':' e ' .\n\nWt lc<r a!J unambiguous in itself thn fhl pn:mbl<! can yary Its mean mg. u e cont · J th • presnmplin0 th nJJn~:t a statute one has aho to hear 10 mm \" . 1 a\n\ntio~ in t thi! .lei\\lature dol'~ m)t inhmd to m:1kc nnv sut>st:t!l1'_31 a tee 1fllmcui'; e exttlng law hcvond v.h:lt it expresslv !!ed11re$ or be)ond , \"e \\Cope unJ object of the statute. [485:\\-Bl f\n\n(iii) Th . hi' h ent Act does 11 !ll)f fither e Kheme or the Ddhi Special olt:e Esta. '!t mIre r~!!lllar\n\nlklli~ aulh e~resly or by necr<;~:!'rv imnl•cntlon (hv;_tcnce to invP.ti ~!e ;1110 C>ffrthet of their iurisdiction. rc-wer nod com A~ i!POI\"rnl r11te II Would ro '-'ces under nnv other comne•en• Ia~. fvPT/ exclude \"• a llli<tter of ~~litre clear anti e1Ct'lfe~• 1:'\"\"~ 1\" 1!\"\" 10 e, P.C ~!fence~ mr>tinncd\n\naw the JX>Wer of investtgat1on for t ~£\n\n~~;\n\ni \\: .,. ...\n\n. 1\n\n;·,\n\n!. ..\n\n? •'\n\n' ft .\n\nL '\n\nr .\n\nSUPREME COURT REPORTS\n\n(1973) 3 S.C.R.\n\nin the notification dated November 6, 1956, under s. 3 of the Act, from the jurisdiction and competence of-the regular police authorities\n\nconferred on them by the Cr. P.C. and other laws and to vest this power exclusively in the D. S. P. E.\n\nThe D. S. P ~E. Act seems to be only pern; lissive or empowering, intended merely to enable the D.S.P.E.\n\nalso to investigate into the offences specified as -contemplated by section 3 without impairing any other law empowering police authorities to 'investigate offences. [486B-F]\n\n(iv) The plain meaning of sub-section (1) of _'S. 5A of the Prevention of Corruption Act 1947 appears to be that I.nspectors of Police of D. S. P. E. in all places, Assistant Commissioners of Police i; n te Presidency towns of Calcutta and Madras, Superintendent_ of Police in the. Presidency town of Bombay, and Deputy Superintendents of Police in all places other tha; n Prtsidency towns of Calcutta, .· Madras and Bombay are authorised to investigate into the offences mentioned therein. The word 'elsewhere' in cl.{d) does not indicate that a Deputy Superintendent of Police in debarred from investigating offe.nces m.en tioned in . this clause even when so ordered by a Magistrate First Class in the areas in which D. S. P. E. is also , empowered to function. The word 'elsewhere' in clause (d) appears to refer only to the three Presidency tow, ns mentioned in cl_auses (b) and (c). This sub-section th, ei'efore does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force . . It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers bdow certain ranks so that public servants concerned are aved from frivolous harassment at the hands of disgruntled persons. It is also noteworthy that apart from the restrictions in s. SA( 1) the appli~ cability of the provisions of the Cr.P.C. to the proceediniS in relation to the offences mentioned. in that sub-sections, is, subject to certain modifications contained in s. 7A, expressly recognised.\n\n[488IJ-:G]\n\n(v) The schemes of the two enactments, namely, the D.S.P .E. Act, 1946 and Prevention of Corruption Act, 1947 suggest that they are intended to serve as supplementary provisions of law designed to !unction harmoniously in aid of each other and of the existing regular police\n\nimestigating agencies for effectively achieving the object of successful investigatio!l into the serious offences mentioned in s. SA without unreasonably exposing the public servant concerned to frivolou' and vexatious proceedings. [488<; J-H; 489A]\n\n (vi) The above interpretation is supported by D.O. No. 21(8)63- GD dated October S, 1963 addressed by the Central Bureau of Investi gation, Ministry of Home Affairs, Government of India, to the llll5pectors General of Police. No doubt the Jetter contains only administrative instructions but it clearly show the construction pl1l.ced during all these_ years by the administrative officers concerned. If the view stated in this letter is not clearly against the language and scheme of the Act in question then it is entitled to due consideration and has some persuasive value. Reference to th~ State Police in the\n\nD.O. includes the police force of the Union Territory of Delhi. [489F-H; 490A]\n\n{vii_) In the present case the investigati<YJ by the Deputy Suj, erintendent of Pohce could not be considered to be in any way unauthorised or\n\nco?trary to law. The function of investigation is merely to collect evtdence and any irregularity or even illegality in the course of collection of ei.dence can scarce!y be considered by itself to affect the legality of the tnal by an otherwtse competent court of the offence so investigated.\n\n[490A-CJ\n\nA .• 1~{.\n\nB ~··\n\nD •\n\nF )\n\nA. C. SHARMA v. DELHI ADMN. (Dua, J.) 479\n\n(viii) It was toot possible to find any infirmity in judgment of the High Court upholding the prosecution story and convicting the appellant and there was no cogent ground for reappraising the evidence. re was absolutely no extraordinary reason for departing from the nor; ffial rule of practice accordi:ng t0 which this Court accepts the conclusions of facts arrived at by the High Court t() final. There was no grave injustice as a result of any irregularity or other infirmity either in the trial or in the judgments of the trial court and the High Court. [491D-F]\n\nH. N. Bishabud & lnder Singh v. Stc.te of Delhi, [1955] 1 S.C.R. 1150, Munna Lal v. The State of U.P. Crl. A. Nos. 102-104 of 1961 d/April 17, 1963, State of Madhya Pradesh v. Mubarak Ali, A.J.R. 1959 S.C. 707, State of Andhra Pradesh v.\n\nVenugopal, [1964] 3 S. C. R. 743 and Khandu Sonu Dhabi v, State of Maharashtra, Crl.\n\nA. No. 105 of 1969 d'IFebruary 15, 1972, applied.\n\nC .\n\nR. J. Singh Ahuluwalia v':-The State of Delhi, [1970] S.C.R. 451, Abdul Halim v. State of West Bengal, A.l.R. 1961 Cal. 257, Om Prakash y, State, A.I.R. 1964 Punjab 407, Labh Shankar v.\n\nStc.:te of Saurashtra, A.I.R. 1955 Saurashtra 42 Kharati Lal v. State, 1965, D.L .. T 362 and Kartar Singh v. State, Crl. A. No. 42 of 1971 decided on October 13, 1971, referred to.\n\nD CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 28 of 1973.\n\nAppeal by special leave from the judgment and order dated 29th October 1969 of the Delhi High Court at New Delhi in Cr.\n\nA. No. 1 of 1966.\n\nFrank Anthony and K. B. Rohatgi, for the appellant.\n\nGobind Das and R. N_. Sachthey, for the respondent.\n\nF. S. Narimanf Additional Solicitor-General of India, and B. D. Sharma, for the Attorney-General for India.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.-The appellant was the dealing clerk in the Labour Office, Delhi, in April, 1965. He was convicted by the Special\n\nJudge, Delhi under s. 5~2) of the Prevention of Corruption Act and sentenced to one year's rigorous imprisonment and fine of Rs. 200/- with two months further rigorous imprisonment in case of default. He was also found guilty and convicted of an offence under s. 161, I.P.C. and sentenced to rigorous imprisonment for one year. The two--suantive sentences were directed to be concurrent. His appeal to the High Court of Delhi was dismissed by a learned single Judge. He appeals to this Court by special leave.\n\nHis application for leave is dated December 20; 1969. In that' application one of the grounds taken by him questioned the legality of the investigation into the offences against him by the Deputy Superintendent of the Anti-Corruption Department of the Delhi Administration. According to this ground the Delhi Special\n\n\n[1973) 3 S.C.R.\n\nPolice Establishment Act as amended prescribes special powers A and procedure for investigation of offences of bribery and corrup tion in the departments of the Central Government and as the appellant was an employee of the Central Public Works Department, offences against him could only be investigated by the Special Police Establishment. The investigation_ having not been done by 'the D.S.P.E., according to the appellant, his trial is B vltiated. In support of this ground the appellant presented in this Court an application dated January 13, 1970 seeking permission to place on the record a letrter dated February 10, 1966 purporting to have been written by the S.P. AntiCorruption Branch, Delhi and addressed to the appellant stating rthat the anti-corruption branch of Delhi Administration was not competent to make an c enquiry into the allegations levelled against C.P.W.D. employee being a Central Government employee. This Court, while grant ing special leave, also permitted the appellant to urge additional grounds.\n\nWe now turn to the facts giving rise to this case. One Bakht Ram, a labour supplier had to get about Rs. 3,500/- from one D Umrao Singh, a contractor, who was evading this payment.\n\nBakht Ram moved the Labour Officer for relief.\n\nThe Labour Officer stopped payment to the contractor to the extent of the amount claimed by Bakht Ram but as the case was not being\n\ndalt with as expeditiously as Bakht Ram ex]Jected or desired, he approached 1the appellant who was the dealing clerk for expe- E ditious disposal of the case. The appellant demanded Rs. 100/- by way of bribe for using his good offices. The matter was ultimately settled at Rs. 50/- and the amount was to be paid on April 27, 1965 at 1the Labour Office or at the house:of the appellant.\n\nBakht Ram thereupon reported the matter to the Deputy Superintendent of Police (Anti-Corruption Branch) and produced three currency notes of the denomination of Rs. 10/- each which he\n\nF proposed to pay to the appellant. The numbers of these currency notes were nofed by !(:be Deputy Superintendent of Police in the pre, sence of two witnesses and Bakht Ram was instructed to make the payment in the presence of those witnesses. Bakht Ram then proceeded to the office of the Labour Officer along with the said two witnesses followed by the police party headed by the Deputy G Supe'rintendent of Police.\n\nA~ the appellant was not present in the office of the Labour Officer the party proceeded to his house.\n\nBakht Ram called the appellant out from his house 'and they both went to a tea shop nearby. The two witnesses followed 'them.\n\nWithin their hearing Bakht Ram told the appellant that he had brought Rs. 30/- with him and that he would pay the balance H later. He requested the appellant to see that the Labour Officer passed requisite orders on Bakht Ram's application claiming Rs .. 3,500/-. The appellant agreed to see that the Labour Officer\n\nA. C. SHARMA V. DELHI ADMN. (Dua. }. ) 481\n\npassed the necessary orders. He received Rs. 30/- from Hakht Ram and put the currency notes in his pocket. One of the two witnesses at this stage gave a signal and the D.S.P. came to the spot. The currency notes in question were recovered from the appellant's possession. They bore the same numbers as had been noted by the D.S.P.\n\nAt the trial the appellant's plea was that Bakht Ram had borrowed from him Rs. 40/- on April 1, 1965 and the amount recovered from him by the D.S.P. was the amount paid by Bakht Ram towards the discharge of that loan. He also produced four witnesses in support of his version. The learned Special Judge considered the prosecution evidence and held that the receipt of money having been admitted by the appellant, the onus lay on him to rebut the presumption raised by s. 4 oi the Prevention of Corruption Act.\n\nAfter considering the appellant's plea and\n\nappraisin~ the evidence produced by him in support thereof, the learned Special Judge concluded that the burden had not been discharged. In his view, the defence witnesses were interested in the appellant and one of them, being the General Secretary of the Congress Mandai, Lajpatnagar, New Delhi and in that capacity wielding some infouence, had also tried to help the appellant. The testimony of these witnesses did not impress the Special\n\nJudge. Holding the appellant guilty he convicted him and imposed the sentence, as already noticed.\n\nOn appeal the High Court agreed with the view taken by the trial court. According to the High Court also the appellant having admitted receipt of a sum of Rs. 30/- from P.W. 1 Bakht Ram on the date of the offence, under s. 4 of the Prevention of Corruption Act, the burden lay upon him to prove that this amount had been received otherwise than by way of illegal gratification. The testimony of the defl?pce witnesses was not considered acceptable and the order of the trial court was affirmed.\n\nIn this Court Mr .. Anthony _questioned the legality of the in~ vestigation by submitting that the only police agency having jurisdiction to investigate into the allegations against the appellant\n\nwa~ the Delhi Special Police Establishment. The investigation by t.he anti-corruption branch, Delhi, being !thus. without jurisdiction, it '.Vas contended that the appe11ant's trial lind conviction were, en this ground alone, wholly illegal. Mr. Anthony relied on R. I. Singh Ahuluwalia y. The State of DelhW) in sustaining his right to raise this point for the first time in this appeal, as according to his submission, it goes to the root of the validity of the investigation.\n\nIf the investigation is unauthorised the trial springing from it cannot be considered lawful, said the counsel. The app.el\n\n. (1) (1970) 3 S.C.R. 451.\n\nSUPREME COURT REPORTS [1973] 3 S.C, ll.\n\nlant having been permi(ted to urge additional ground and there A being no objection by the other side, iii the interest of justice we heard the parties on the new objection. As the point raised related to the validity of central laws we directed notice to the Attorney General and pursuant to that notice heard Mr. Nariman, Additional Solicitor General on the point.\n\nThe-short but important questionwith far-reaching effect, if the appellant's contention were to prevail, requirin~ our decision is, whether with the setting up of the Delhi Special Pol.ice Establishment, the anti-corruption QI'anch of the Delhi Police had been completely deprived of its power to investigate into the offences. like the present or whether both the S.P.E. and the anti-corruption branch had power to investigate, it being a matter of internal administrative arrangement for , the appropriate authorities to regulate the assignment of investigation of cases according to the exigencies of 1he situation.\n\nMr. Anthony relied on the preamble of the Delhi Special Police Establishment AC't, 25 of 1946. Mr. Nariman produced befor~ us a copy of its objects and reasons for showing the background in which this Act was enacted. Both sides referred to the background of this enactment for the purpose of supporting their rival contentions about its scope and effect. The objects and reasons for its enactment show that in 1943 the Government of India had set up a police staff called the Delhi Police Establishment (War Department) under the Special Police Establishment (War Department)\n\nOrdinance No. XXII of 1943 for the purpose of investigating offences of bribery and corruption connected with the Departments of Central Government. As this organisation proved useful it was decided to retain its police staff on permanent basis by means of: legislation. Ordinance No. XXII of 19431apsed on September 30,\n\n1946. In order to avoid a break in continuity, Ordinance No. XXII of 1946 was promulgated on September 25, 1946 to remain ill force till March 25, 194 7. The object of this Aot is to retain the said special police staff as a permanent organisation to en 4 able it to conduct investigation in all provinces of India with their consent, Its preamble reads :\n\n\"An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdic 4 tion of members of the said force in regard to the investigation of the said offences.'' Section 3 of the Act on which principal reliance was placed by Mr. Anthony reads :\n\nA. C. SHARMA V. DELHI ADMN. (Dua, J.) 483\n\nA \"3. Offences to be investigated by special police es-tablishment : The Central Government may, by noti fication in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.\" Reference to s. 3 of both the Ordinances of 1943 and 1946 B would show that apart from lthe category of offences, the power of the establishment to investigate into the offences mentioned therein is expressed in language similar to that used in the two Acts Section 3 of the 1943 Ordinance reads :\n\n\"3. Offences 1o be investigated by necial Police Establishment: The .Central Government may by general or special order c,., cify the offences or class~ o.f offences committed in connection with Departments of the Central Government which are to be investigated by the Special Police Establishment (War Department) or may direct any particular offence .committed in con nectio.s. wnh a Department of the Central Government to Qe so investhrated.\" Section 3 of the 1946 Ordinance reads :\n\n\"3. Offences. to be investigated by special police establishment : The Central Government may, by notification in the official gazette, specify the . offences or classes of offences committed in connection with matters concerning Departments of rthe Central Government which are to be investigated by the Delhi special police establishment.\"\n\nIt was contended that section 3 of this Act•- confers on D.S.P; E. exclusive jurisdiotion for investigating d1e offences specified by the Central Government b!Y notification in the Gazette. Stress in this connection was laid on the words \"which are to be investigated'' as dfsclosing the mandatory character of the legislative intention.\n\nOur attention was also drawn to the notification no. 7/5/55-AVD dated November 6, 1956 in exercise of the powers conferred by s. 3 in which offences, inter alia, under s. 161, 165, 165A, I.P.C. and offences punishable under the Preveirt:ion of Corruption Act ( 2 of 194 7) are specified.\n\nAccording to the learned Advocate the Special Establishment is a very efficient investigating agency and it utilises officers and not clerks for assistance in its investigation. IUs apparently for this reason, said the learned counsel, that cases of corruption against employees of Central Government are entrusted to it.\n\nMr. Anthony in the course of arguments conceded that if in s. 3 instead of the word \"are\" the legislature had used the words\n\n\n[197 3] 3 S.C.R.\n\n\"may\" or \"can\" then the section would noa prima facze convey a mandatory direction clothing the D.S.P.E. alone with the power of investigation 'to the exclusion of the other investigating agencies, including the regular police force.\n\nOur attention was also drawn to the resolution of the Government of India (No. 4/31/61-T da-ted April I, 1963 ), reproduced at p. 681 of the Anti-Corruption Laws of India by P. V. Ramakrishna, by means of which it was decided 'to set up a Central Bure.au of Investigation at Delhi with six divisions one of which was described as 'investigation and anti-corruption divisions (Delhi Special Police Establishment)'.\n\nAccording to the argument the Government\n\nhad designed to set up a special investigating agency for investigating cases o.f corruption and bribery to the exclusion of an other , investigating agencies. Our attention was specifically in C vited to the letter (No. 593/ AC Br. dated February 10, 1966) from the Superintendent of Police, Anti-Corruption Branch, to the appellant in reply to an application of his. In that leitter it was stated :\n\n\"Shri L. Swarup, Labour Officer, Jurisdiction No. 5, C.P.W.D. Delhi is a Central Government employee.\n\nTherefore, Anti-Corruption Branch of Delhi Administration is not competent to make enquiry into the allegations levelled against him.\" This letter fortifies his submission, said Mr. Anthony. Support for his contention was also sought from Abdul Halim vs. State\n\nof West Bengal(l), Om Prakash vs. State( 2), Labh Shankar vs.\n\nState of Saurashtra( 8 ) and Kharaifi Lal vs. State('). These decisions do not seem to have any direct bearing on the point which concerns us.\n\nMr. Anthony also produced before us a copy of an unreport~ ed decision of a single Judge of the Delhi High Court in Kartar\n\nSingh vs. State( 5 ) rejecting a similar contention raised by the learned counsel.\n\nBut the correctness of this decision was questioned by Mr. Anthony.\n\nWe now proceed to examine the legal position.\n\nStatement of objects and reasons for introducing a Bill iu the Legislature is not admissible as an aid to the construction of the statute as enacted : far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpse of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose for doing so. The preamble of a statute which is often described as a key to the understa:nding of it may legitimately be consulted to solve\n\n(1) A.T.R. 1961 Cat 257.\n\n(2) A.I.R. 1964 Punjal> 407.\n\n(3) A.l.R. 1965 Saurashtra 42.\n\n(4) 1965 D.L.T. 362.\n\n(5) Crl. A. No. 42 of 1971 decided on October 13, 1971.\n\nA. C. SHARMA V. DELHI ADMN, (Dua, /.)\n\nan ambiguity or to ascertain and fix the meaning of words in their context which otherwise .bear more meanings than one. It may afford use.ful assistance as to what the statute intends to reach, but ]f the enactment is clear and unambiguous iri itself then no preamble can vary its meaning. While construing a statute one has also to bear in mind the presumption that the Legislature does not intend to make any subs'tantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute.\n\nTurning to •the D.S.P.E. Act it extends to the whole of India.\n\nFor the constitution and powers of the establishment we have to turn to s. 2 of this Act which reads :-\n\n\"2. Constitution and powers of special police establishment : ( 1) Notwithstanding! anything in the police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special P_olice Establishment for the investigation in any Union territory Of offences notified undeJ\" section 3.\n\n(2) Subject to any orders which the Central Gov- / errunent may make in this half, members of the said police establishment shall have throughout any Union territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union territory have in connction with the investigation of offences committed therein. ( 3) Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so\n\nexercisin~ such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.\" Section 3 which empowers the Central Government to specify the offences to be investigated ttr the D.S.P.E. has already beenset ?Ut.\n\nTe notification dated November 6, 1956 referred to earlier specdies numerous offences under various enactments including a large number of ordinary offences under I.P.C. Clauses\n\n(a) to (J) of this notification take within their fold offences under a number Of statute& specified therein. Clause (k) extends the sweep of this notification by including in its 'scope attempts,\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll.\n\nabetments and conspiracies in re:l_ation to r in connection with the ofienQes mentioned in ell. (a) to (h) and also any other offence committed in the course of those transactions arising out of the same facts. It may also be stared that after 1956 iri a number of further notifications the list of tho offences specified under s. 3 has increased manifold. We consider it unecessary to refer to them in detail. According to s. 4 t~ superintendence of D.S.P.E. vests\n\nin the Central Government and s. 5 empowers the Central Government to extend to any area in a State not being a Union territory the powers and jurisdiction of, members of this establish ment for the investigation of any offences or classes of offences specified under s. 3. Subject to the orders of the Central Government the members of such Establishmerl.t exercising such extended powers and jurisdiction are to be deemed to be members of the police force of that area for the purpose of powers, functions, pri vileges and liabilities.\n\nBut the power and jurisdiction of a mem bet of D.S.P.E. in such State is to be exercised only with the con sent :Of the Government of the State concerned. The scheme of this Act does not either expressly or by necessary implication divest the regular police authorities of their jurisdiction, power and com petence to investigate into.offences under any other comptent law.\n\nAs a general rule, it would require clear and express language to effectively exclude as a matter of law the power of investigation of all the offences mentioned in this notification from the jurisdiction and competence of the regular police authorities conferred on them by Cr. P.C. and other laws and to vest this power exclusivefy in the D.S.P.E. The D.S.P.E. Act seems to be only permissiVe or empowering, intended merely to enable the D.S.P.E. also to investi gate into the offences specified as contemplated by, s. 3 without impairing any other law empowering the regular police authorities to investigate offences.\n\nTurning now to the Prevention of Corruption Act (2 of 1947), we find that this Act was enacted in March, 194 7 several months after the enactment of the D.S.P.E. Act for the more effective pre vention of brivery and corruption. By virtue of s. 3 of the Act an offence under s. 165A, I.P.C. was made a cognizable offence for 1he purposes of Cr. P.C. notwithstanding anything to the contrary\n\ncontained in that Code. Section 4 provides for presumptions in certain cases. Section '5 defines criminal misconduct and also provides for punishment for such offences. It further proVides for punishment for habitual commission of offences under ss. 162, 163\n\nand 165, I.P.C. and also renderers punishable attempts to commit some offences. Section S is expressly stated to operate in addition an~ nodn derogation of other laws. Section SA which is of importance may here be set out : . ., SA. Investigation into cases under this Act:\n\nA. C. SHARMA v. DELHI ADMN. (Dua, /.)\n\n( 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank,- ( a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;\n\n(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;\n\n(c) in the presidency-town of Bombay, of a Superintendent of Police; and\n\n(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class; as the case may be, or make any arrest therefor without a warrant : Provided that if a police officer not below the rank of an Inspector of Police iL authorised by the State Government in this behalf by general or special order, he\n\nmay also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause\n\n(e) of sub-section ( 1) of section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.\n\n(2) If, from information received or otherwise, a police officer has reason to .suspect the commission of an offence which he is empowered to investigate under subliection ( 1 ) and considers that for the purpose of investigation or inquiry into such offence, it is necessary to ins* pect any bankers' books, then, notwitllstanding anything contained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the person sspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section : Provided that no power under this sub-section in relation to the accounts of any person shall be exercised\n\n\n[1973) 3 S.C.R.\n\nby a poliee officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.\n\nExplanation:-ln . this sub-section, the expressions 'bank' arid 'bankers' books' shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891.\"\n\nSub-section ( 1) of this section, while regulating the competence of the officers both of D.S.P.E. and of the regular police force to investigate offences to the extent considered necessary, over-rides the provisions of Cr. P.C. It expressly prohibits police officers, including those of the D.S.P.E., below certain ranks, from investigating\n\ninto offences, under ss. 161, 165 and 165A, I.P.C. and under s. 5 of Prevention of Corruption Act, withOut orders of Magistrates specified therein and from effecting arrests for those offences without a warrant. The plain meaning of this sub-section appears to be that Inspectors of Pollee of D.S.P .E. In all places, Assistant Commissioners of Police in the Presidency Towns ol Calcutta and Madras, Superintendents of Police in the Presidency Town - of Bombay, and Deputy Superintendents of Police in all places, other than Presidency Towns of Calcutta, Madras and Bombay, are authorised to investigate into the offences mentioned therein. The word \"elsewhere\" incl. (d) does not indicate, as was contended by Mr. Anthony that a Deputy Superintendent of Police is debarred from investigating offences mentioned in this clause even when so ordered by a Magistrate of the First Class in the areas in which D.S.P.E. is also empowered to function. The word \"elsewhere\" in\n\ncl. (d) appears to us to refer only to the three Presidency towns\n\nmentioned in ell. (b) and (c). This sub-section, therefore, does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force. It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers below certain ranks, so that public servants concerned are\n\nsaved from frivolous harassment at the hands of disgruntled persons. In this connection it is also noteworthy that apart from the\n\ntriction contained in s. SA. ( 1) the aoPlicability of the provisions of Cr. P.C. to the. proceedinl!s in relation to the aforesaid offences is, subject to eertain modifications contained in s. 7 A, expressly recognised.- The schemes of the two enactments, namely, the D.S.P.E. Act. 1946 and the Prevention of Corruption Act,\n\n1947. suggest that they are intended to serve as supolementa:ry provisions of law .desi20ed to function harmoniouslv in aid of each other and of the eXisting rel!lllar pollee investi2atinll alleocies for\n\nffectively achieving the object of successful investigation into the\n\nI .\n\nJr. C. SHARMA v. DELHI ADMN, (Dua, J.) 489\n\nA serious offences mentioned in s. SA without unreasonably exposing the public servant concernerl to frivolous ad vexatious proceedings. Mr. Nariman also drew our attention to D.O. No. 21/8/63- GD dated October 5, 1963, .addressed by the Central Bureau of Investigation, Ministry of .Home Affairs, Government of India to the Inspectors General of Poli_ce inviting their attention to . the B Government of India Resolution No. 4/31/61-T dated Apnl lJ 1963 establishing the Central Bureau of Investigation consisting of six Divisions to assist the State Police Forces. The authority of Central Bureau is stated therein to have been derived from the\n\nD.S.P.E. Act. In this letter para 6 reads :\n\n\"6. In this connection it may also be mentioned that, on account of inadequacy of staff, it is not possible for the S.P.E. Division to take up every one of the cases which might fall under the categories mentioned in the Annexure to the Government of India Resolution and which might be considered sUitable for investigation by the S.P.E. Division. A certain ill.scretion has, therefore, to be exercised in taking up cases for investigation. In some instances it may not be possible for it to take up even those cases which are committed by Central Government servants, e.g., petty cases of theft, misappropriation, cheating. Such cases could be dealt with more easily and more expeditiously by the local police which has concurrent jurisdiction over these cases also.\"\n\nIn para 7 it is stated that for successful investigation of cases it is most essential that a quick decision is taken about the Agency which has to investigate them. One of the Agencies mentioned therein is S.P.E. Division of the C.B.I. In para 8 it is stated that in respect of cases involving Public Servants or Public Concerns there is an administrative arrangement and understanding between tho S.P.E. and the State Police about the manner in which they are to be dealt with so as to avoid difficulties and delays. This para then refers to the existing procedure and practice which, it is\n\nsuggested, should continue to be valid in future. No doubt. this letter contains onlv administrative instru.ctions but it clearly shows the construction olaced during all these years by the administrative officers concerned with administering this law on the provisions of the S.P.E. and the Prevention of Cprruotion Act.\n\nIf the v1ews stated in this letter' is not clearly a2ainst the lanruage and scheme of these Acts then it i~ entitled to due consideration and has s('lrne\n\npersuasive value.\n\nThe contention raic; ed bv Mr. Anthonv at Delhi not beine a State but onlv a Union territorv. the directions\n\ncontained in D 0. No 21/ll/t;~.nn are inannlicabl~ and that i, n Delhi it is ontv the D.S.P.E. whiC'h has e:tcluc; ive authoritv to investigate into the offences mentioned ins. 5A is not easy to'accept.\n\nSUPREME COURT REPORTS (1973] 3 S.C, Il,\n\nReference to the State Police force in that D.O. in our view in A eludes the police force of the Union territory of Delhi.\n\nAs the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In 1his connection it may not be out of place alo to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H. N. Rishabud & Inder Singh v. State of Delhi(l) it was held tht an i11egality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where c(ll, gn.izance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investiga tion does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the coun at an .early stage of the trial the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it consider appropriate with reference to the requirements of s. SA of the Prevention of Corruption Act, 1952. This decision\n\nwas followed in Munna Lal v. The State of U.P.(2) where the decision in State of Madhya Pradesh v. Mubarak A.li(8) was distin E guished. The same view was taken in the State of Andhfa Pradesh\n\nv. M. Venugopal( 4 ) and more recently in Khllndu Sonu Dhobi v.\n\nState of Maharashtra('). The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr. Anthony deal with different points : in any event to the extent they contain any observations against the view expressed by this Court in the decision just cited those observations cannot be considered good law.\n\nThis takes us to the merits of the case. Mr. Anthony referred us to the evidence of Bakht Ram, the complainant (P.W. 1) and <Submitted that this witness has told lies in the witness box. P.W. 4 D.C. Srivastava who was also a party to the trap and appeared as a witness to the acceptance of the bn'be was also subjected to criticism by the learned counsel. According to this criticism his evidence is equally untrustworthy. It was emphasised that the prosecution witnesses were tied down by the Investigating Agency. by taking their statements under s. 164, Cr. P.C. The learned codnsel submitted that resort to s. 164, Cr. P.C. must put the oourt on guard against implicit reliance on sucli evidence because resort\n\n(1) [1955) 1 S.C.R. HSO.\n\n(2) Crl. A. Nos. 102-104 of 1961 d/April17, 1963.\n\n(3) A.I.R. 1959 S.C. 707.\n\n\n(5) Crl. A. No. lOS of 1969 d/February IS, 1972.\n\nA. C. SHARMA V. DELin ADMN. (Dua, /.) 491\n\nto this section suggests that the witnesses are being compelled to stick to the statement st!Cured from them during investigation. The counsel further drew our attention to the defenee version which, according to him, was put forth at the earliest opportunity. This version, according to him, should have been accepted. The story of demand of bribe by the appellant, argued Mr. Anthony, was not trustworthy. Finally, it was pointed out that Wazir Chand who was stated to be pre5en.t when the appellant is alleged to have de-- manded the bribe should have been produced by the prosecution and failure to do so has seriously prejudiced the appellant's case.\n\nThe plea that he had been won Ol'cr and was. therefore, not produced, did not justify his non-production. The counsel also drew our attention to the evidence of the three witnesses produced in defence.\n\nIn the High Court all these contentions were raised and after a detailed consideration repelled for reasons which we think are !Ound. The appellant had in the present case, as observed by the High Court, admitted receipt of Rs. 30 from P.W. 1 on the date of the offence and his explanation was considered to be unconvincing.\n\nThe defence evidence was also considered by the High Court to be unimpressive and unacceptable.\n\nIn our view, it is not possible to find any infirmity in the judgment of the High Court upholding tho prosecution story and convicting the appellant and indeed we are unable to find any cogent ground for re-appraising the evidence for ourselves in this appeal.\n\nThere is absolutely no extraordinary reason for departing from the normal rule of practice according to which this Court accepts the conclusions of facts arrived at by the High Court to be final. There is no grave injustice as a result of any irregularity or other infirmity either in the trial or in the judgments of the trial court and the High Court.\n\nThe result, therefore, is that the appeal fails and is dismissed.\n\nG.C.\n\nAppeal dismissed.\n\n16- L796SCJI73", "total_entities": 127, "entities": [{"text": "A.C. SHARMA", "label": "PETITIONER", "start_char": 7, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "A.C. 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S. P. E. in all places, Assistant Commissioners of Police i; n te Presidency towns of Calcutta and Madras, Superintendent of Police in the."}}, {"text": "Madras", "label": "GPE", "start_char": 4301, "end_char": 4307, "source": "ner", "metadata": {"in_sentence": "486B-F]\n\n(iv) The plain meaning of sub-section (1) of 'S. 5A of the Prevention of Corruption Act 1947 appears to be that I.nspectors of Police of D. S. P. E. in all places, Assistant Commissioners of Police i; n te Presidency towns of Calcutta and Madras, Superintendent of Police in the."}}, {"text": "Bombay", "label": "GPE", "start_char": 4362, "end_char": 4368, "source": "ner", "metadata": {"in_sentence": "Presidency town of Bombay, and Deputy Superintendents of Police in all places other tha; n Prtsidency towns of Calcutta, .·"}}, {"text": "D.S.P.E.", "label": "ORG", "start_char": 5010, "end_char": 5018, "source": "ner", "metadata": {"in_sentence": "This sub-section th, ei'efore does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force . ."}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 5502, "end_char": 5508, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7A", "label": "PROVISION", "start_char": 5640, "end_char": 5645, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 5757, "end_char": 5791, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Bureau of Investi gation", "label": "ORG", "start_char": 6316, "end_char": 6348, "source": "ner", "metadata": {"in_sentence": "21(8)63- GD dated October S, 1963 addressed by the Central Bureau of Investi gation, Ministry of Home Affairs, Government of India, to the llll5pectors General of Police."}}, {"text": "Delhi", "label": "GPE", "start_char": 6881, "end_char": 6886, "source": "ner", "metadata": {"in_sentence": "Reference to th~ State Police in the\n\nD.O. includes the police force of the Union Territory of Delhi. ["}}, {"text": "Pohce", "label": "GPE", "start_char": 6984, "end_char": 6989, "source": "ner", "metadata": {"in_sentence": "489F-H; 490A]\n\n{vii_) In the present case the investigati<YJ by the Deputy Suj, erintendent of Pohce could not be considered to be in any way unauthorised or\n\nco?trary to law."}}, {"text": "[1955] 1 S.C.R. 1150", "label": "CASE_CITATION", "start_char": 8041, "end_char": 8061, "source": "regex", "metadata": {}}, {"text": "[1964] 3 S. C. R. 743", "label": "CASE_CITATION", "start_char": 8242, "end_char": 8263, "source": "regex", "metadata": {}}, {"text": "Frank Anthony", "label": "LAWYER", "start_char": 8951, "end_char": 8964, "source": "ner", "metadata": {"in_sentence": "Frank Anthony and K. B. Rohatgi, for the appellant."}}, {"text": "K. B. Rohatgi", "label": "LAWYER", "start_char": 8969, "end_char": 8982, "source": "ner", "metadata": {"in_sentence": "Frank Anthony and K. B. Rohatgi, for the appellant."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 9004, "end_char": 9014, "source": "ner", "metadata": {"in_sentence": "Gobind Das and R. N_."}}, {"text": "R. N_. Sachthey", "label": "LAWYER", "start_char": 9019, "end_char": 9034, "source": "ner", "metadata": {"in_sentence": "Gobind Das and R. N_."}}, {"text": "F. S. Narimanf", "label": "LAWYER", "start_char": 9057, "end_char": 9071, "source": "ner", "metadata": {"in_sentence": "F. S. Narimanf Additional Solicitor-General of India, and B. D. Sharma, for the Attorney-General for India."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 9115, "end_char": 9127, "source": "ner", "metadata": {"in_sentence": "F. S. Narimanf Additional Solicitor-General of India, and B. D. 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AntiCorruption Branch, Delhi and addressed to the appellant stating rthat the anti-corruption branch of Delhi Administration was not competent to make an c enquiry into the allegations levelled against C.P.W.D. employee being a Central Government employee."}}, {"text": "Bakht Ram", "label": "OTHER_PERSON", "start_char": 11267, "end_char": 11276, "source": "ner", "metadata": {"in_sentence": "One Bakht Ram, a labour supplier had to get about Rs."}}, {"text": "D Umrao Singh", "label": "OTHER_PERSON", "start_char": 11334, "end_char": 11347, "source": "ner", "metadata": {"in_sentence": "3,500/- from one D Umrao Singh, a contractor, who was evading this payment."}}, {"text": "April 27, 1965", "label": "DATE", "start_char": 11890, "end_char": 11904, "source": "ner", "metadata": {"in_sentence": "50/- and the amount was to be paid on April 27, 1965 at 1the Labour Office or at the house:of the appellant."}}, {"text": "G Supe'rintendent", "label": "OTHER_PERSON", "start_char": 12536, "end_char": 12553, "source": "ner", "metadata": {"in_sentence": "Bakht Ram then proceeded to the office of the Labour Officer along with the said two witnesses followed by the police party headed by the Deputy G Supe'rintendent of Police."}}, {"text": "A. C. SHARMA V. DELHI ADMN", "label": "JUDGE", "start_char": 13114, "end_char": 13140, "source": "ner", "metadata": {"in_sentence": "The appellant agreed to see that the Labour Officer\n\nA. C. SHARMA V. DELHI ADMN. (", "canonical_name": "A. C. SHARMA V. DELHI ADMN"}}, {"text": "Hakht Ram", "label": "OTHER_PERSON", "start_char": 13213, "end_char": 13222, "source": "ner", "metadata": {"in_sentence": "30/- from Hakht Ram and put the currency notes in his pocket."}}, {"text": "D.S.P.", "label": "ORG", "start_char": 13482, "end_char": 13488, "source": "ner", "metadata": {"in_sentence": "They bore the same numbers as had been noted by the D.S.P.\n\nAt the trial the appellant's plea was that Bakht Ram had borrowed from him Rs."}}, {"text": "April 1, 1965", "label": "DATE", "start_char": 13577, "end_char": 13590, "source": "ner", "metadata": {"in_sentence": "40/- on April 1, 1965 and the amount recovered from him by the D.S.P. was the amount paid by Bakht Ram towards the discharge of that loan."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13958, "end_char": 13962, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 13970, "end_char": 13998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Congress Mandai", "label": "ORG", "start_char": 14302, "end_char": 14317, "source": "ner", "metadata": {"in_sentence": "In his view, the defence witnesses were interested in the appellant and one of them, being the General Secretary of the Congress Mandai, Lajpatnagar, New Delhi and in that capacity wielding some infouence, had also tried to help the appellant."}}, {"text": "Lajpatnagar", "label": "GPE", "start_char": 14319, "end_char": 14330, "source": "ner", "metadata": {"in_sentence": "In his view, the defence witnesses were interested in the appellant and one of them, being the General Secretary of the Congress Mandai, Lajpatnagar, New Delhi and in that capacity wielding some infouence, had also tried to help the appellant."}}, {"text": "New Delhi", "label": "GPE", "start_char": 14332, "end_char": 14341, "source": "ner", "metadata": {"in_sentence": "In his view, the defence witnesses were interested in the appellant and one of them, being the General Secretary of the Congress Mandai, Lajpatnagar, New Delhi and in that capacity wielding some infouence, had also tried to help the appellant."}}, {"text": "Bakht Ram", "label": "WITNESS", "start_char": 14764, "end_char": 14773, "source": "ner", "metadata": {"in_sentence": "30/- from P.W. 1 Bakht Ram on the date of the offence, under s. 4 of the Prevention of Corruption Act, the burden lay upon him to prove that this amount had been received otherwise than by way of illegal gratification."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14808, "end_char": 14812, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 14820, "end_char": 14848, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Anthony", "label": "OTHER_PERSON", "start_char": 15104, "end_char": 15111, "source": "ner", "metadata": {"in_sentence": "In this Court Mr .. Anthony _questioned the legality of the in~ vestigation by submitting that the only police agency having jurisdiction to investigate into the allegations against the appellant\n\nwa~ the Delhi Special Police Establishment.", "canonical_name": "Anthony"}}, {"text": "R. I. Singh Ahuluwalia", "label": "OTHER_PERSON", "start_char": 15545, "end_char": 15567, "source": "ner", "metadata": {"in_sentence": "Mr. Anthony relied on R. I. Singh Ahuluwalia y. The State of DelhW) in sustaining his right to raise this point for the first time in this appeal, as according to his submission, it goes to the root of the validity of the investigation."}}, {"text": "(1970) 3 S.C.R. 451", "label": "CASE_CITATION", "start_char": 15891, "end_char": 15910, "source": "regex", "metadata": {}}, {"text": "SUPREME COURT REPORTS [1973] 3 S.C", "label": "COURT", "start_char": 15913, "end_char": 15947, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1973] 3 S.C, ll."}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 16269, "end_char": 16276, "source": "ner", "metadata": {"in_sentence": "As the point raised related to the validity of central laws we directed notice to the Attorney General and pursuant to that notice heard Mr. Nariman, Additional Solicitor General on the point."}}, {"text": "S.P.E.", "label": "ORG", "start_char": 16687, "end_char": 16693, "source": "ner", "metadata": {"in_sentence": "like the present or whether both the S.P.E. and the anti-corruption branch had power to investigate, it being a matter of internal administrative arrangement for , the appropriate authorities to regulate the assignment of investigation of cases according to the exigencies of 1he situation."}}, {"text": "Government of India", "label": "ORG", "start_char": 17362, "end_char": 17381, "source": "ner", "metadata": {"in_sentence": "The objects and reasons for its enactment show that in 1943 the Government of India had set up a police staff called the Delhi Police Establishment (War Department) under the Special Police Establishment (War Department)\n\nOrdinance No."}}, {"text": "Delhi Police Establishment (War Department)", "label": "ORG", "start_char": 17419, "end_char": 17462, "source": "ner", "metadata": {"in_sentence": "The objects and reasons for its enactment show that in 1943 the Government of India had set up a police staff called the Delhi Police Establishment (War Department) under the Special Police Establishment (War Department)\n\nOrdinance No."}}, {"text": "Special Police Establishment (War Department)", "label": "ORG", "start_char": 17473, "end_char": 17518, "source": "ner", "metadata": {"in_sentence": "The objects and reasons for its enactment show that in 1943 the Government of India had set up a police staff called the Delhi Police Establishment (War Department) under the Special Police Establishment (War Department)\n\nOrdinance No."}}, {"text": "September 30,\n\n1946", "label": "DATE", "start_char": 17827, "end_char": 17846, "source": "ner", "metadata": {"in_sentence": "XXII of 19431apsed on September 30,\n\n1946."}}, {"text": "September 25, 1946", "label": "DATE", "start_char": 17935, "end_char": 17953, "source": "ner", "metadata": {"in_sentence": "XXII of 1946 was promulgated on September 25, 1946 to remain ill force till March 25, 194 7."}}, {"text": "March 25, 194", "label": "DATE", "start_char": 17979, "end_char": 17992, "source": "ner", "metadata": {"in_sentence": "XXII of 1946 was promulgated on September 25, 1946 to remain ill force till March 25, 194 7."}}, {"text": "India", "label": "GPE", "start_char": 18151, "end_char": 18156, "source": "ner", "metadata": {"in_sentence": "The object of this Aot is to retain the said special police staff as a permanent organisation to en 4 able it to conduct investigation in all provinces of India with their consent, Its preamble reads :\n\n\"An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdic 4 tion of members of the said force in regard to the investigation of the said offences.''"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 18564, "end_char": 18573, "source": "regex", "metadata": {"statute": null}}, {"text": "Dua", "label": "JUDGE", "start_char": 18677, "end_char": 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specified."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 20542, "end_char": 20546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 161, 165, 165A", "label": "PROVISION", "start_char": 20584, "end_char": 20601, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 20603, "end_char": 20608, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 21087, "end_char": 21091, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "P. V. Ramakrishna", "label": "OTHER_PERSON", "start_char": 21582, "end_char": 21599, "source": "ner", "metadata": {"in_sentence": "4/31/61-T da-ted April I, 1963 ), reproduced at p. 681 of the Anti-Corruption Laws of India by P. V. Ramakrishna, by means of which it was decided 'to set up a Central Bure.au of Investigation at Delhi with six divisions one of which was described as 'investigation and anti-corruption divisions (Delhi Special Police Establishment)'."}}, {"text": "L. Swarup", "label": "OTHER_PERSON", "start_char": 22273, "end_char": 22282, "source": "ner", "metadata": {"in_sentence": "In that leitter it was stated :\n\n\"Shri L. Swarup, Labour Officer, Jurisdiction No."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 22935, "end_char": 22951, "source": "ner", "metadata": {"in_sentence": "Mr. Anthony also produced before us a copy of an unreport~ ed decision of a single Judge of the Delhi High Court in Kartar\n\nSingh vs. State( 5 ) rejecting a similar contention raised by the learned counsel."}}, {"text": "A. C. SHARMA V. DELHI ADMN", "label": "PETITIONER", "start_char": 23851, "end_char": 23877, "source": "ner", "metadata": {"in_sentence": "A. C. SHARMA V. DELHI ADMN, (Dua, /.)\n\nan ambiguity or to ascertain and fix the meaning of words in their context which otherwise .bear more meanings than one.", "canonical_name": "A. C. SHARMA V. DELHI ADMN"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 24574, "end_char": 24578, "source": "regex", "metadata": {"statute": null}}, {"text": "police Act, 1861", "label": "STATUTE", "start_char": 24707, "end_char": 24723, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 24912, "end_char": 24921, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 25889, "end_char": 25898, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 26186, "end_char": 26191, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "SUPREME COURT REPORTS [1973] 3 S.C.ll", "label": "COURT", "start_char": 26400, "end_char": 26437, "source": "ner", "metadata": {"in_sentence": "Clause (k) extends the sweep of this notification by including in its 'scope attempts,\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 26768, "end_char": 26772, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 26864, "end_char": 26868, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 26937, "end_char": 26941, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 27175, "end_char": 27179, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 28339, "end_char": 28343, "source": "regex", "metadata": {"statute": null}}, {"text": "Turning now to the Prevention of Corruption Act", "label": "STATUTE", "start_char": 28444, "end_char": 28491, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 28685, "end_char": 28689, "source": "regex", "metadata": {"linked_statute_text": "Turning now to the Prevention of Corruption Act", "statute": "Turning now to the Prevention of Corruption Act"}}, {"text": "s. 165A", "label": "PROVISION", "start_char": 28718, "end_char": 28725, "source": "regex", "metadata": {"linked_statute_text": "Turning now to the Prevention of Corruption Act", "statute": "Turning now to the Prevention of Corruption Act"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 28727, "end_char": 28732, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 4", "label": "PROVISION", "start_char": 28859, "end_char": 28868, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "ss. 162, 163\n\nand 165", "label": "PROVISION", "start_char": 29081, "end_char": 29102, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 29104, "end_char": 29109, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 29456, "end_char": 29488, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 161", "label": "PROVISION", "start_char": 29880, "end_char": 29891, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 165", "label": "PROVISION", "start_char": 29893, "end_char": 29904, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 165A", "label": "PROVISION", "start_char": 29908, "end_char": 29920, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 29928, "end_char": 29945, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 29955, "end_char": 29964, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 5", "label": "PROVISION", "start_char": 30556, "end_char": 30565, "source": "regex", "metadata": {"statute": null}}, {"text": "Books Evidence Act, 1891", "label": "STATUTE", "start_char": 31936, "end_char": 31960, "source": "regex", "metadata": {}}, {"text": "ss. 161, 165 and 165A", "label": "PROVISION", "start_char": 32328, "end_char": 32349, "source": "regex", "metadata": {"linked_statute_text": "Books Evidence Act, 1891", "statute": "Books Evidence Act, 1891"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 32351, "end_char": 32356, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5", "label": "PROVISION", "start_char": 32368, "end_char": 32372, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 32376, "end_char": 32404, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7", "label": "PROVISION", "start_char": 34067, "end_char": 34071, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 34172, "end_char": 34200, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Central Bureau of Investigation", "label": "ORG", "start_char": 34999, "end_char": 35030, "source": "ner", "metadata": {"in_sentence": "4/31/61-T dated Apnl lJ 1963 establishing the Central Bureau of Investigation consisting of six Divisions to assist the State Police Forces."}}, {"text": "Anthonv", "label": "OTHER_PERSON", "start_char": 37113, "end_char": 37120, "source": "ner", "metadata": {"in_sentence": "The contention raic; ed bv Mr. Anthonv at Delhi not beine a State but onlv a Union territorv.", "canonical_name": "Anthony"}}, {"text": "SUPREME COURT REPORTS (1973] 3 S.C, Il", "label": "COURT", "start_char": 37396, "end_char": 37434, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS (1973] 3 S.C, Il,\n\nReference to the State Police force in that D.O. in our view in A eludes the police force of the Union territory of Delhi."}}, {"text": "SA of the Prevention of Corruption Act, 1952", "label": "STATUTE", "start_char": 38907, "end_char": 38951, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Calcutta, Punjab and Saurashtra High Courts", "label": "COURT", "start_char": 39272, "end_char": 39315, "source": "ner", "metadata": {"in_sentence": "The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr. Anthony deal with different points : in any event to the extent they contain any observations against the view expressed by this Court in the decision just cited those observations cannot be considered good law."}}, {"text": "D.C. Srivastava", "label": "WITNESS", "start_char": 39742, "end_char": 39757, "source": "ner", "metadata": {"in_sentence": "P.W. 4 D.C. Srivastava who was also a party to the trap and appeared as a witness to the acceptance of the bn'be was also subjected to criticism by the learned counsel."}}, {"text": "s. 164", "label": "PROVISION", "start_char": 40097, "end_char": 40103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 164", "label": "PROVISION", "start_char": 40159, "end_char": 40165, "source": "regex", "metadata": {"statute": null}}, {"text": "Wazir Chand", "label": "OTHER_PERSON", "start_char": 40903, "end_char": 40914, "source": "ner", "metadata": {"in_sentence": "Finally, it was pointed out that Wazir Chand who was stated to be pre5en.t when the appellant is alleged to have de-- manded the bribe should have been produced by the prosecution and failure to do so has seriously prejudiced the appellant's case."}}]}
{"document_id": "1973_3_492_496_EN", "year": 1973, "text": "BOARD OF REVENUE, MADRAS\n\nM/S. RAJ BROTHERS AGENCIES ETC.\n\nFebruary 6, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nMadras General Sales Tax A.ct 1959-S. 34(1)-Meaning of Ifie ll'ords \"Subject of an cippepl to the appellate .Tribunal\"-Whetlter an appeal against a time-barred order can be considered as an order lV/iich :!rad been made the subject of an appeal.\n\nThe respondent was assessed to Sales Tax during the assessment years 1960-61 and 1961·62. Against the said orders of assessment, the' respondent went up in appeal to the Appellate Assistant Commissioner., who dismissed the appeals. 011 a second appeal to the Sales Tax Appellate Tribunal, these appeals were also dismissed as being time barred. Thereafter, the assessee moved the Board of Revenue under s. 34(1) of the Madras Sales Tax Act, 1959 to revise the assessmenil orders.\n\nThe Board came to the conclusion that it had no jurisdiction. to entertain those petitions. On a writ petition, the High Court held that the Board has jurisdiction to cntcrtahl those appeals aod therefore, issued a writ of mandamus to the Boa'rd, to entertain the .revision peti tions and to consider them on merits. The State against that decision, has come up in appeal before this Court.\n\nThe main question in these appeals was for determination of the true scope of s. 34.\n\nSection 34(1) gives power to the Board of Revenuo suo 1noto to call for and examine an order passeaby the appropriate authorities under some of the provisions df the Act. Section 34(2) pro vides that the Board of Revenue shall not pass any order under sub section (I), if the time for appeal against that order has not expired cor that the order has been made the subject of an appeal to the Appellate Tribunal, or of a revision before the High Court, or that n1ore than 4 years have expired after the passing of the order.\n\nThe question for consideration was whether an appeal against an ord4:r which was dismissed as time barred can be considered as an order hich had been made the subject of an appeal.\n\nDismissing the appeal, HELD: (i) The sCope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of .Madras in which it was held by the High Court of Madras that before the jurisdiction of the Board to exercise its power under s. 34 is taken away, the appeal filed before the Tribunal must have been an effective appeal, and that an appeal which was dismissed on the ground of limitation, is not a'1 effective appeal.\n\nThat decision has stood the test of time and till no\\\\· it is good law.\n\nAfter that decision of the High Cour~ the Act has been sub jected to several amendments, the Legislature not thought fit to amend s. 34. Therefore, it would. not be proper to upset that decision at this late stage and disturb the settled position in law. If the State wants to change the law, it is open to it to move the Legislature for making the necessary amendments.\n\n[49, B-EJ Erodt Yarn Storts v. State of Madras, 14 S.T.C .. 734, referred to.\n\n(ii) The second contention of the appellant that the assessc'e had no right to invoke the jurisdiction of the Board to exercise its revision al\n\nREVENUE BOARD v. RAJ BROS. (Hegde, J.) 493\n\nA power has also no force. The power is conferred on the Board to remedy an injustice.\n\nIt is open to an a&SCMee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in absence of any vitiating circumstances, the High B Court would not interfere with the discretion of the Board. [49-5EG]\n\n(iii) In the present case, the decision of the Board was vitiated by an error apparent on the face of the record. The Board had refused to exercise its jurisdiction under an erroneous view that the assessee's appeal was dismissed and therefore, it was not competent to entertain the petition. In the circumstances, the High Court was justified in interfering with that decision.\n\n[4950-H]\n\nC Mis. Melara1n & Sons v. The Co1n1nissioner of Inco1ne 4 tax, Punjab, [1956] S.C.R. 1966, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 492 to 493 of 1970.\n\nAppeals by certificate from the Judgment and order dated December 9, 1968 of the Madras High Court in W. Petition Nos. 4628 and 4630 of 1965.\n\nA. V. Rangam and A. Subhashini, for the appellant.\n\nRespondent did not appear.\n\nThe Judgment of the Court.was delivered by\n\nHEGDE, J. These appeals are by certificate. They are directed against the Order of the Madras High Court in two writ petitions in which Mandamus was issued to the Board of Revenue to consider and decide the revision petitions filed by the assessee--respondent under S. 34(1) of the Madras General Sales Tax Act, 1959\n\n(1of1959) (hereinafter called the 'ACT').\n\nThe fjlcts of the case lie within a narrow compass. The res' ponC!ent-assessee was assessed to sales tax during the assessnient years 1960-61 and 1961-62. Aggrieved by the orders of the assessing authorities, he went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter, he filed second appeal to the Sales Tax Appellate Tribunal, Madras. Tiiose appeals were dismissed as having been time.barred. After the Tribunal dismissed the appeals theassessee moved the Board Of Revenue under S. 34(1) to revis& the a8sessment orders. The Board came to the conclusion tllat it had no jurisdiction to entertain those petitions. The High\n\nCourt. in the writ petitions filed held that the Board had jurisdiction to entertain those appeals and consequently issued a writ of mandamus to the Board to entertain the revision petitions and oonsider them on merits. It is against that decision the State of Tamil Nadu has come up in ajlpeal.\n\nIn these appeals we are called upon to detennine the true scope of s. 34.\n\nS. 34(1) confers on the Board of Revenue uo motu power to call for and examine an order passed or proceeding recorded by the appropriate authorities under some of the provisions of the Act.\n\nS. 34(2) reads thus : \"The Board of Revenue shall not pass any order under sub-section ( 1) if. .....\n\n(a) the time for appeal against that order has not expired; or\n\n(b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or ( c) more than four years have expired after the passing of the order.\"\n\nThe question for consideration is as to what is the meaning of the expression \"the order has been made the subject of an appeal ? Whether an appeal against an order which wa~ dismissed as having been barred by time can be considered as an order which had been made the subject of an appeal ?\" This question does present some difficulty.\n\nBut in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court.\n\nAs far back as 1963 the scope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State o.f Madras('). Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under s. 34. The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under s. 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contentton and decided the case in favour of the State. In arriving at the conclusion that the words \"subject of an appeal\" mean subject of an \"effective apoeal\" High Court took into consideration the mischief that would otherwise arise namely, all that an assessee. who wants to stifle the Board's suo motu power of revision, has to do is to file a time-barred appeal and get it dismissed. It was because of that difficultv the Hieb Court in Erode Yarn Stores' case came to the conclusion that exnression the order which has been the subject of an an\"l', al\n\nas meaning \"subject of an effective appeal\". In arriving at that decision. the Hil?h Court did take into consideration the decision of this Court in Messrs. Mela Ram & Sons v. The Commissioner\n\n(I) 14 S.T.C. n4.\n\nREVENUE BOARD v. RAJ Ell.OS. (Hegde, J.) 495\n\nof Incqme-tax, Punjab(') wherein this Court ruled tbatanappeal presented out of time is an appeal and an order dismissing it as lime-barred is one passed in an appeal. That was a decision rendered under the provisions of the Indian Income 'J)x Act, 1922.\n\nThe question for decision in that case was whether an appeal lay against an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred.\n\nIn the circumstances of the present case it is not necessary for us to consider whether the decision of the High Court in Erode Yarn Stores' case was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now.\n\nIt must have governed several cases, decided thereafter.\n\nAfter that decision was rendered, the Act had been subjected to several amendments.\n\nThe Legislature has not thought fit to amend s. 34.\n\nTo put it differently the State had prayed for and obtained a particular interpretation of s. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the State conduct in taking inconsistent positions.\n\nYet another contention was taken on behalf of the State. rt was contended on behalf of the State that the assessee had no right to invoke the jurisdiction of the Board to eiercise its revi, sional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board 'to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in the absence ()f any vitiating circumstance recognised by law the High Court would not have interferred with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the r&:ord. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our atten-\n\n(1) (1956] S.C.R. !66.\n\ntion to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under s. 20 (1) of the Andhra. Pradesh General Sales Tax Act, 1957, which provision is similar to s. 34 of the Act. Those deCisions lend no assistance to the appellants' case.\n\nIn the result these appeals fail and they are dismissed. The respondents are absent and hence there will be no order as to costs. ·\n\nS.N.C.\n\nAppeals dismissed.", "total_entities": 44, "entities": [{"text": "BOARD OF REVENUE, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "BOARD OF REVENUE, MADRAS", "offset_not_found": false}}, {"text": "S. RAJ BROTHERS AGENCIES ETC.", "label": "RESPONDENT", "start_char": 28, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "M/S. RAJ BROTHERS AGENCIES ETC", "offset_not_found": false}}, {"text": "February 6, 1973", "label": "DATE", "start_char": 59, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "February 6, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 78, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 91, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 115, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 170, "end_char": 178, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 641, "end_char": 669, "source": "ner", "metadata": {"in_sentence": "011 a second appeal to the Sales Tax Appellate Tribunal, these appeals were also dismissed as being time barred."}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 785, "end_char": 793, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Sales Tax Act, 1959", "label": "STATUTE", "start_char": 801, "end_char": 827, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 1333, "end_char": 1338, "source": "regex", "metadata": {"linked_statute_text": "the Madras Sales Tax Act, 1959", "statute": "the Madras Sales Tax Act, 1959"}}, {"text": "Section 34(1)", "label": "PROVISION", "start_char": 1341, "end_char": 1354, "source": "regex", "metadata": {"linked_statute_text": "the Madras Sales Tax Act, 1959", "statute": "the Madras Sales Tax Act, 1959"}}, {"text": "Section 34(2)", "label": "PROVISION", "start_char": 1512, "end_char": 1525, "source": "regex", "metadata": {"linked_statute_text": "the Madras Sales Tax Act, 1959", "statute": "the Madras Sales Tax Act, 1959"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2094, "end_char": 2099, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2137, "end_char": 2154, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal, HELD: (i) The sCope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of .Madras in which it was held by the High Court of Madras that before the jurisdiction of the Board to exercise its power under s. 34 is taken away, the appeal filed before the Tribunal must have been an effective appeal, and that an appeal which was dismissed on the ground of limitation, is not a'1 effective appeal."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 2224, "end_char": 2244, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal, HELD: (i) The sCope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of .Madras in which it was held by the High Court of Madras that before the jurisdiction of the Board to exercise its power under s. 34 is taken away, the appeal filed before the Tribunal must have been an effective appeal, and that an appeal which was dismissed on the ground of limitation, is not a'1 effective appeal."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2315, "end_char": 2320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2710, "end_char": 2715, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 3671, "end_char": 3676, "source": "regex", "metadata": {"statute": null}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4516, "end_char": 4528, "source": "ner", "metadata": {"in_sentence": "A. V. Rangam and A. Subhashini, for the appellant."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 4533, "end_char": 4546, "source": "ner", "metadata": {"in_sentence": "A. V. Rangam and A. Subhashini, for the appellant."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 4640, "end_char": 4645, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court.was delivered by\n\nHEGDE, J. These appeals are by certificate."}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 4906, "end_char": 4914, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras General Sales Tax Act, 1959", "label": "STATUTE", "start_char": 4922, "end_char": 4956, "source": "regex", "metadata": {}}, {"text": "Sales Tax Appellate Tribunal, Madras", "label": "COURT", "start_char": 5374, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "Thereafter, he filed second appeal to the Sales Tax Appellate Tribunal, Madras."}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 5556, "end_char": 5564, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act, 1959", "statute": "the Madras General Sales Tax Act, 1959"}}, {"text": "State of Tamil Nadu", "label": "ORG", "start_char": 5952, "end_char": 5971, "source": "ner", "metadata": {"in_sentence": "It is against that decision the State of Tamil Nadu has come up in ajlpeal."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 6064, "end_char": 6069, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 34(1)", "label": "PROVISION", "start_char": 6072, "end_char": 6080, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 34(2)", "label": "PROVISION", "start_char": 6263, "end_char": 6271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 7160, "end_char": 7165, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 7398, "end_char": 7403, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Madras", "label": "ORG", "start_char": 7409, "end_char": 7424, "source": "ner", "metadata": {"in_sentence": "The State of Madras controverted that position."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 7551, "end_char": 7556, "source": "regex", "metadata": {"statute": null}}, {"text": "Erode Yarn Stores", "label": "ORG", "start_char": 8236, "end_char": 8253, "source": "ner", "metadata": {"in_sentence": "It was because of that difficultv the Hieb Court in Erode Yarn Stores' case came to the conclusion that exnression the order which has been the subject of an an\"l', al\n\nas meaning \"subject of an effective appeal\"."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9602, "end_char": 9607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9701, "end_char": 9706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 10789, "end_char": 10794, "source": "regex", "metadata": {"statute": null}}, {"text": "Rangam", "label": "OTHER_PERSON", "start_char": 11461, "end_char": 11467, "source": "ner", "metadata": {"in_sentence": "Mr. Rangam drew our atten-\n\n(1) (1956] S.C.R. !"}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 11538, "end_char": 11563, "source": "ner", "metadata": {"in_sentence": "tion to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under s. 20 (1) of the Andhra."}}, {"text": "Andhra Pradesh Revenue Board", "label": "ORG", "start_char": 11634, "end_char": 11662, "source": "ner", "metadata": {"in_sentence": "tion to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under s. 20 (1) of the Andhra."}}, {"text": "s. 20", "label": "PROVISION", "start_char": 11669, "end_char": 11674, "source": "regex", "metadata": {"statute": null}}, {"text": "Pradesh General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 11694, "end_char": 11729, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 11761, "end_char": 11766, "source": "regex", "metadata": {"linked_statute_text": "Pradesh General Sales Tax Act, 1957", "statute": "Pradesh General Sales Tax Act, 1957"}}]}
{"document_id": "1973_3_497_502_EN", "year": 1973, "text": "MOOSA S. MADHA & AZAM S. MADHA v.\n\nCOMMISSIONER OF INCOME-TAX, WEST BENGAL,\n\nCALCUTTA Febuary 6, 1973\n\n[K. S. HEGOE, P. ]AGANMOHAN REOOY AND H. R. KHANNA, JJ.J\n\nIncome-tax A.ct, 1922, •· 4A(a)(iil)-A.ssessee held to be 'resident' but 'not ordinarily resident'-Burd, en of proving that his visit to India in relevant period war occasional and cG:Sual war on assessee-Burden not discha1gecl by mere assertion that he had no business in India-Question\n\nwhethe~ ren1lttance of Jnco1ne was from accrued profits/Burden Of provJ'ng that it was not from accrued profits-was on assessee-Quertion tlint TrihuMl did not consider photos/at copies of aceounts produced before rt not raised in application under s. 66(1 )-High Court rightly refused to take such copies into account.\n\nIn respect of the assessment year I948-49 the Income-tax Officer'• finding that the assessee was 'resident but not ordinarily resident' in that year in India was confirmed by the Appellate A'!Sistant Commissioner and the Tribunal. It was also held that a sum of Rs. 2 lakhs remitted by the assessee to India from Burma during the relevant period fornied part of the assessee's accrued profits. The High Court answered both the questions in favour of the Revenue. The assessee appealed with certiR ficate.\n\nHELD : ( i) For the finding that the assessee was 'rident' but •, .Jt ordinarily resident' in the year in question the authorities under the Act as well as the High Court had relied on the fact that the assessec had failed to prove his visit to India in 1947 was casual or occasional. This was essentially a finding of fact.\n\n[501B-CJ The burden of proving that the assessee's visit to India in 1947 wa'> occasional or casual was on the assessee.\n\nIn the affidavit filed by him before the Department he merely stated that he visited India for a period elf two months in 1947 but did not state the reason for visiting India nor c!4d he state his visit was occasional or casual.\n\nIn the faee of this affidavit it was idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional or casual. The fact that the assessce had no business in India during the period of stay of two months did not discharge the onus.\n\n[500 F-G; SOIC-E] Con11nissioner of lnconu.i-tax, West Bengal v. B. K. Dhote, 66 J_T.R. 457, referred to.\n\n(ii) The assessee had also failed to prove that the sum of Rs .. 2 Iakhs remitted by him to India did not represent his business income.\n\nEven though the Income-tax Officer gav.e him several opportunities to produce his account books to establish his case he failed to produce the account books .. [SOIH]\n\nThe complaint that the Tribunal ignored the photostat copie.• of the account books without good reasons did not appear to have been made in the application filed by the asscssee under s. 66( 1), The statement of ca\"' submitted by the Tribunal does not refer to that fact. Admittedly the /assess\":\" did not take up any question regarding these documents. Hence the High Court was fully justified in not considering those documents.\n\n[502A-DJ CIVIL APPELLATE JURISOICTION ; Civil Appeal No. 491 of 1970.\n\nAppeal ; by certificate from tho judgment and order dated June 3, 1961) of the Calcutta High Court in Income-tax Reference No. 72 of 1966.\n\nN. N. Goswami and S. N. Mukherjee, for the appell.ant H. C . .Bhandare, S. P. Nayar, J. Ramamurthy and R. N. Sachthey, for XCipondeDt.\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J. This is an appeal by certificate. It arises from the decision of the High Court of Calcutta in a reference under section 66 ( 1 ) of the Income Tux Act 1922 (to be hereinafter referred to as the Act). It relates to the assessee's income tax assessment fOr the assessment year 1948-49, the relevant accounting year being the calendar year 194 7.\n\nThe material facts as could be gathered from the statement of case submitted by the Tribunal are as follows :\n\nThe assessee, one S. C. Madha (since deceased) appears to have migrated with his father to Burma in about the year 1901.\n\nThey were originally the residents of the village Variav in the erstwhile State of Baroda.\n\nIn Burma the assessee carried on business in soap and umbrella. It is seen that he was a successful businessman.\n\nThe assessee's father. died in 1936 and thereafter the business was carried on by a partnership consisting of the assessee and his sons. The assessee had ancestral property in Variav. He purchased a plot of land in Bombay in 1942. After the bombing of Burma in 1942 the assessee came over to India and remained in India till 1946. He returned to Burma in February 1946. Under instructions from the partnership firm, the firm's bankers, the National Bank of India Limited, Rangoon, remitted to Calcutta in the year 1946 a sum of Rs. 5 lakhs, and the same was credited to assessee's account. Again on October 26, 1947 a further sum of Rs. 2 lakhs was transferred by the bankers of the partnership to the National Bank of India Ltd., Calcutta and credited in the name of the assessee. Out of the total amount of Rs. 7 Iakhs remitted from Rangoon, Rs. 5 lakhs was utilised by the assessee for the purchase of two properties in Calcutta; one in the year 1948 and the other in the year 1949. On April 8, 1953, the assessee filed a voluntary disclosure petition before the Income\n\nTax Department at Calcutta and followed up the same with nine voluntary returns for the assessment years 1944-45 to 1952-53, disclosing certain incc:.; nes from the properties in India as well as from his business in Btlrma during those assessment years. As those returns were not filed within time the Income Tax Officer H k proceedings under section 34(i)(a) of the Act for the assessment years 1947-48 and 1948-49. The Income Tax Officer assessed the assessee in the status of a. 'resident' but 'not ordinarily\n\nrdent' on a total income of Rs. 6,24,47S for the assessment year 1947-4& and Rs. 3,55,214 for the assessment year 194S-49.\n\nIn determining the assessee's residential status in these two asse&Smcnt years the Income Tax Officer relied on the facts stated by the assessee in his voluntary disclosure statements as well as on the affidavit filed by him. He also took into consideration the fact that the assessee had purchased a property in Bombay in the year 1942 and the further fact that in the years 194S and 1949 he had purchased two premises in Calcutta.\n\nAggrieved by the order of the Income Tax Officer the assessee went up in appeal to the Assistant Appellate Commissioner. The Assistant Appellate Commissioner remanded the case back to the Income Tax Officer for the reason that on the materials collected by the Income Tax Officer, he was unable to co.me to any firm conclusion. Thereafter the Income Tax Officer held further enquiries and reached the very conclusion which he had reached earlier. On appeal the Assistant Appellate Commissioner confirmed the order of the Income Tax Officer. On a further appeal, the Tribunal came to the conclusion that the assessment of the assessee for the\n\nassessment year 1947-4& was unsustainable and it accordingly set aside that order but it affirmed the assessee's assessment for the assessment year 1948-49.\n\nThe Tribunal came to the conclusion that the assessee was a 'resident' but 'not ordinarily resident' in India during the calendar year 1947. It further came to the conclusion that the amounts remitted from Rangoon to Calcutta were remitted by the assessec for his use in India. It also held that the amounts remitted formed part of the assessee's accrued profits.\n\nAggrieved by the decision of the Tribunal the assessee moved the Tribunal to submit two questions of law to the High Court of Calcutta under s. 66 (1). The Tribunal accepted that prayer and submitted the following two questions to the High Court of Calcutta: ( i) On the facts and in the circumstances of the case, was there any material or evidence for the Tribuna I to hold that the assessee was a resident but not ordinarily resident in the taxable territories for the assessment year 194S-49 ?\n\n(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the amount of Rs. 2 lakhs had been remitted to the taxable territories by the assessee during the accounting year out of his accrued profits of earlier years ?\n\nThe High Court answered both 'those 4uestions in favour of the Revenue. Hence this appeal. ·\n\nFor deciding the question whether the assessee was a 'resident' in India but 'not ordinarily resident' in India in the calendar year 1947, we must first examine the scope of section 4A(a) (iii). That section reads :\n\n\"For the purposes of this Act- ( a) any individual is resident in the taxable territories in any year if he--\n\n( i) ........... \" .. .\n\n(ii) . \" . \" ........ ..\n\n(iii) having within the four years preceding that year been in the taxable territories for a period of or for periods amounting in all to three hundred and sixty-five days or more, is in the taxable territories for any time in that year otherwise than on an occasional or casual visit; (iv) ,.\n\nTo determine whether this provision applies to the facts of the present case we must find ont :- ( 1) Whether during the first of January 1943 to 31st of December 1946 the assessee was in India for a period of three hundred and sixty five days or more;\n\n(2) Whether the assessee was in India at any time between the !st January 1947 to 31st D, ecember, 1947; and\n\n( 3) Whether the presence of the assessee in India in 194 7 was not an occasional or casual visit.\n\nSo far as the first two ingredients are, concerned there is no dispute. It is admitted thAt the assessee was in India during the years 1943-46 for a period of more than three hundred and sixtyfive days. It is also admitted that he was in India for a period of two months in the year 1947. Therefore, the only question that requires to be decided is whether his visit to India in 1947 was occasional or casual. The burden of proving this point is undoubtedly on thcYassessee.\n\nThe Department cannot be expected to prove a negative. The assessee knows best why he stayed in India for a period of two months in 194 7. This question is no more res integra. In Commissioner of Income Tax, West Bengal\n\nv. B. K. Dhote('1), this court ruled that in order that the assessee may be treated as resident in British India under Section 4A-\n\n(a) (iii) of the Act the onus of proving that the assessee was in British India during the four years preceding the previous year\n\n(I) 66 l.T.R. 4S7.\n\nA for a period of or for periods amounting in all to three hundred and sixty-five days and in the relevant previous year at any time, lies upon the Department.\n\nBut if these two conditions are established or admitted, the onus lies upon the assessee to prove that his visits in the previous year were occasional or casual. In the . present case it may be noted that the Income Tax Officer, the B Assistant Appellate Commissioner, the Tribunal as well as the High Court have come to the conclusion that the assessee failed to prove that his visit to India in 194 7 was casual or occasional.\n\nThis is essentially a finding of fact. Hence the only point that calls for decision is whether the finding reached by the Tribunal\n\nis unsupported by any vidence. We have earlier stated the legal position. The burden of proving that the assessee's visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual.\n\nWerst still is, in the affidavit filed by .him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal cani.e to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 194 7 was occasional or casual.\n\nThe sole circumstance on which Mr. Goswami, the learned counsel for the appellant, relied on was that the assessee had no business in India. The fact that the assessee had no business in India during the period of his stay of iwo months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.\n\nFor the reasons mentioned above we agree with the, High Coun in the answer given to the first question.\n\nNow turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947.\n\nRs. two lakhs were remitred from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Bunna. This was a matter which the assessee had toprove. He has failed to prove the same. Even though the Income Tax Officer gave him several opportunities to produce his Account Books to establish his case that the money remitted to India did not represent his business income, he failed to produce his Account Books. It was contended by Mr. Goswami that he produced certified photostat copies of his accounts before the Tribunal and the Tribunal erred in not considering those documents.\n\nIn the first place it must be noted that the assessee has no satisfactory eXplanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal.\n\nThe complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under section 66 ( 1). The statement of the case submitted by the Tribunal does not refer to that fact.· Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was rig11t in its conclusion that the remittance of Rs. 2 lakhs from Bunna .to India during the year 1947 is not proved to be the capital asset of the assessec. Hence. there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court. For the reasons mentioned above this appeal foils mid the same is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 39, "entities": [{"text": "MOOSA S. MADHA & AZAM S. MADHA", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "MOOSA S. MADHA & AZAM S. MADHA", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, WEST BENGAL,\n\nCALCUTTA", "label": "RESPONDENT", "start_char": 35, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL, CALCUTTA", "offset_not_found": false}}, {"text": "H. R. 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Madha (since deceased) appears to have migrated with his father to Burma in about the year 1901."}}, {"text": "Variav", "label": "GPE", "start_char": 4187, "end_char": 4193, "source": "ner", "metadata": {"in_sentence": "They were originally the residents of the village Variav in the erstwhile State of Baroda."}}, {"text": "Baroda", "label": "GPE", "start_char": 4220, "end_char": 4226, "source": "ner", "metadata": {"in_sentence": "They were originally the residents of the village Variav in the erstwhile State of Baroda."}}, {"text": "Bombay", "label": "GPE", "start_char": 4558, "end_char": 4564, "source": "ner", "metadata": {"in_sentence": "He purchased a plot of land in Bombay in 1942."}}, {"text": "National Bank of India Limited", "label": "ORG", "start_char": 4783, "end_char": 4813, "source": "ner", "metadata": {"in_sentence": "Under instructions from the partnership firm, the firm's bankers, the National Bank of India Limited, Rangoon, remitted to Calcutta in the year 1946 a sum of Rs."}}, {"text": "Rangoon", "label": "GPE", "start_char": 4815, "end_char": 4822, "source": "ner", "metadata": {"in_sentence": "Under instructions from the partnership firm, the firm's bankers, the National Bank of India Limited, Rangoon, remitted to Calcutta in the year 1946 a sum of Rs."}}, {"text": "Calcutta", "label": "GPE", "start_char": 4836, "end_char": 4844, "source": "ner", "metadata": {"in_sentence": "Under instructions from the partnership firm, the firm's bankers, the National Bank of India Limited, Rangoon, remitted to Calcutta in the year 1946 a sum of Rs."}}, {"text": "October 26, 1947", "label": "DATE", "start_char": 4942, "end_char": 4958, "source": "ner", "metadata": {"in_sentence": "Again on October 26, 1947 a further sum of Rs."}}, {"text": "National Bank of India Ltd., Calcutta", "label": "ORG", "start_char": 5045, "end_char": 5082, "source": "ner", "metadata": {"in_sentence": "2 lakhs was transferred by the bankers of the partnership to the National Bank of India Ltd., Calcutta and credited in the name of the assessee."}}, {"text": "April 8, 1953", "label": "DATE", "start_char": 5332, "end_char": 5345, "source": "ner", "metadata": {"in_sentence": "On April 8, 1953, the assessee filed a voluntary disclosure petition before the Income\n\nTax Department at Calcutta and followed up the same with nine voluntary returns for the assessment years 1944-45 to 1952-53, disclosing certain incc:.;"}}, {"text": "Income\n\nTax Department at Calcutta", "label": "COURT", "start_char": 5409, "end_char": 5443, "source": "ner", "metadata": {"in_sentence": "On April 8, 1953, the assessee filed a voluntary disclosure petition before the Income\n\nTax Department at Calcutta and followed up the same with nine voluntary returns for the assessment years 1944-45 to 1952-53, disclosing certain incc:.;"}}, {"text": "Btlrma", "label": "GPE", "start_char": 5634, "end_char": 5640, "source": "ner", "metadata": {"in_sentence": "nes from the properties in India as well as from his business in Btlrma during those assessment years."}}, {"text": "section 34(i)(a)", "label": "PROVISION", "start_char": 5761, "end_char": 5777, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 7797, "end_char": 7802, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4A(a)", "label": "PROVISION", "start_char": 8692, "end_char": 8705, "source": "regex", "metadata": {"statute": null}}, {"text": "31st D, ecember, 1947", "label": "DATE", "start_char": 9528, "end_char": 9549, "source": "ner", "metadata": {"in_sentence": "st January 1947 to 31st D, ecember, 1947; and\n\n( 3) Whether the presence of the assessee in India in 194 7 was not an occasional or casual visit."}}, {"text": "British India", "label": "GPE", "start_char": 10452, "end_char": 10465, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Income Tax, West Bengal\n\nv. B. K. Dhote('1), this court ruled that in order that the assessee may be treated as resident in British India under Section 4A-\n\n(a) (iii) of the Act the onus of proving that the assessee was in British India during the four years preceding the previous year\n\n(I) 66 l.T.R. 4S7."}}, {"text": "Section 4A", "label": "PROVISION", "start_char": 10472, "end_char": 10482, "source": "regex", "metadata": {"statute": null}}, {"text": "Goswami", "label": "OTHER_PERSON", "start_char": 12269, "end_char": 12276, "source": "ner", "metadata": {"in_sentence": "The sole circumstance on which Mr. Goswami, the learned counsel for the appellant, relied on was that the assessee had no business in India."}}, {"text": "Bunna", "label": "GPE", "start_char": 13166, "end_char": 13171, "source": "ner", "metadata": {"in_sentence": "The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Bunna."}}, {"text": "section 66", "label": "PROVISION", "start_char": 14290, "end_char": 14300, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_503_509_EN", "year": 1973, "text": "KALIAMMA v.\n\nJANARDHANAN PILLAI & ORS ..\n\nFebruary 8, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nHindu Law-Special custom-Proof of-Reliance on pr(or decisions. when permissible.\n\nThe appellant was the daughter of a member of the Krisbnawakll.\n\nCommunity by one of bis two wives, and the first respondent was h19 son by the other wife.\n\nThe appellant filed the suit claiming half share of her father's property on the basis of a custom of special kind of Patnibhag\"111. The special kind of Patiiibhagam pleaded by the appellant was tllat even a daughter was entiUed to a share. On her behalf, reliance was placed on certain earlier decisions regarding the prevalence of Ibo CUl!olll!\n\nin !he community. The trial court dismissed the suit, but the first appelkle court held in favour of the appellant. In second appeal, tho High Court toolt the view that the decisions relied on by the first appellate court could. not be said to have established the existence of the special custOl)I.\n\nDismissing the appeal to this Court,\n\nHELD : (I J A custom which has been recognised and affirmed in a, series of decisions each of which was based on evidence adduced in tM\n\np\"1ticular case may become incorporated in tho rneral Jaw, and proof of it then becomes unnecessary under s. 57(1) o the Evidence Act.\n\n[5050-HJ\n\nRama Rao v. Rajah of Pittapur, [1918) I.L.R. 41 (Madras), 778 at 785, Pramra; v. Chand Kunwar, [1947) 11 M.L.J. 516 and Uiagar Singh v ..\n\nMat. Ito, [1959) 2 S.C.R. (Suppl.), 781 followed ..\n\n(2) Among the decisions cited only one decision recognised the special kind of patnibbagarn pleaded by the appellant.\n\nBut even that decision did not proceed on the basis of -the evidence in the case but relied upon the observations of the learned judges who decided Ramaswami Sadaaivan\n\nv. Thanu Gouri. But those observations were JKJt based on a discussion of the evidence and were not necessary for the decision of that case.\n\n[50 DJ\n\nAvikutti Bhagavathi & Anr, v. Chithambaratham Mathevan, reported m 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu Gouri reported in Kol•ppa Pillai's unreported important cases, p. 179 and Hagaru Pillaf Saraswathi Amma v. Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred to.\n\n(3) While it is true that the community is a very amall community found in a small local area and cases reaching courts may not be many, the court cannot, on that ground, ignore the well established principle bef'?\"' a ctom elm be held.~· having been proved on the basis of earlier dects1ons.\n\nThose dec1S1ons should have been based on evidence. adduced in those cases. But in the present case, neither of the two decisions which refer to the special kind of patiiibhagarn pleaded by the appellant was based on the evidence in the case. (508 F-H; 509 A-BJ\n\nC1vn. APPELLATE JURISDICTION : Civil Appeal No. 1251 0£ 1967. .\n\n50JI\n\nSUPREME COURT REPOR'I fl 973) 3 s.c.R.\n\nAppeal by special leave from the judgment and order dated A September 29, 1966 of the Madras High Coutt in S.A. No. 1670 -Of 1963.\n\nK. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M. R. Krishna Pillai, for the appellant.\n\nLily Thomas and A. Sreedhara11 Nambiar, for respondent B No. 1.\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J. This is an appeal by special leave against the judgment of the High Court of Madras in Second Appeal. c\n\nThe appellant is the daughter of one Ayyappan Mathevan Pillai, who died on 17th January, 1949, by one of his wives, the second respondent.\n\nThe first respondent is his son by another wife. The parties belong to the .Krishnanvaka Community found mainly in the Kanyakumari district of Tamil Nadu. During the appellant's minority her mother and the first respondent entered into a deed of partition under which _the appellant was given 9 out of 79 items belonging to her father.\n\nShe filed the suit out of which this appeal arises for partition and possession of a half share in all her father's properties. Her claim was based on the allegation that in the community to which the parties belong there was a custom of a special kind of pathnibhagam. While under the ordinary pathnibhagam a man's sons by different wives get :i;: their shares on the basis that whatever their numbe~ the property is divided according to the number of wives he had, rather than , on a per capita basis, the special kind of pathnibhagam pleaded by the plaintiff was that even a daughter was entitled to share on the same basis.\n\nShe pleaded that as Mathevan Pillai had two wives and she was the daughter by one wife and the 1st defendant the son by the other wife each of them was entitled to a half share.\n\nThe learned Subordinate Judge who tried the suit, on a con- sideration of the evidence in the case, as also various earlier decisions regarding this custom held against the plaintiff.\n\nOn appeal the District Judge of Kanyakumari without going into the G evidence but on the basis of some earlier decisions allowed the appeal. In the Second Appeal before the High Court the learned Single Judge took the view that the decisions relied on by the District Judge cannot be said to have established the existence of the special custom pleaded by the plaintiff. The 1st defendant also sought to sustain the partition deed on the basis that it wu H the result of a family arrangement. But the learned 1 udge did not think it necessary to go into that question in the view he took -regarding the custom pleaded by the plaintiff.\n\nThe question that arises for decision i~ ,{his case is whether the custom pleaded by the appellant has be:K'stablished. On behalf of the appellant reliance was not placed on the evidence in the case to establish the custom.\n\nThe argument was simply based on certain earlier decisions regarding the prevalence of the custom of pathnibhagam among the community to which the parties belong. The legal position regarding the place of customary law among the Hindus is now well established. In The Collector of Madura v. Moottoo Ramalinga Sethupathy(') it was observed by the Privy Council :\n\n\"Under the Hindu system of law clear proof of usage will outweigh the written text of the law.\" In Rama Rao v. Rajah of Pittapur(') the Privy Council observed:\n\n\"When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case. It becomes in the end truly a matter of process and pleading.\"\n\nIn Premraj v. Chand Kanwar(') the Privy Council observed :\n\n\"It is not doubtful that the ordinary rule is that a party relying on a custom .......... which is at variance with the ordinary Hindu law must allege and prove it. But it is equally beyond doubt that a custom which has been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case. may become incorporated in the general law. with the result that the onus of proof no longer lies on those who assert it but upon those who assert an exception to it.\"\n\nThe latest decision iS' that of this Court in Ujagar Singh v. Mst.\n\nJeo(') wherein after referring to the statement of law in Rama Rao v. Rajah of Pittapur, earlier referred to, this Court pointed out that 'when a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under s. 57 (I) of the Evidence Act.' In the particular circumstances of that case this Court pointed out that there was a formidable array of authorities in support of either view, and, therefore, went into the evidence and held that the respon-\n\n(I) (1868) 12 .M.I.A., 397, 436.\n\n(3) (1947) II M.L.J. 516 (P.C.)\n\n(2) (1918) I.L.R. 41 (Madras), 778 at 785.\n\n(4) (1959) 2 S.C.R. (Suppl.), 781.\n\nSUPREME COURT REPORTS [1973j 3 s.c.1..\n\ndent therein had proved a custom whereby a sister was entitled A to succeed in preference to the collateral relations of her brother.\n\nNow let us. see whether in the community to which the parties belong the rule of pathnibhagam with the special modification of that rule pleaded by the plaintiff is prevalent. That the rule of pathnibhagam is prevalent in various parts of the coun~ there is no doubt.\n\nIn Palaniappa Chetti'ar v. Alagan Chetti( ) the PriyY Council referred to the statement of law by Mayne in his Hindu Law (Edn. 7), para. 473 to the following effect:\n\n\"In some families, however, a custom called patnibhaga prevails of dividing aCCording to mothers, so that if A had two sons by his wife B and three sons by C, the property would be divided into moieties, one going to the sons by B, and the other to the sons by C, Somrun Singh v. Khedun Singh. This practice prevails locally in Oudh, as evidenced by numerous W ajib ularz, which I have seen in cases under appeal to the Privy Council.\"\n\nThey also referred to the prevalence of the custom in many parts of Southern India, as referred to by Mr. Ellis, on page 357 of Vol. II of Strange, and at page 167 of that work to the following effect :\n\n\"The division of estates, in case of one person having several families by ditlerent women, among the families in equal shares without reference to the num-. ber of persons in each.\"\n\nTheir Lordships, therefore, approached the evidence in that case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, and after examining the F evidence came to the conclusion that the custom of Patnibhaga was proved.\n\nWe may now refer to the decisions that were cited before the Courts below and, were relied upon before this Court. The earliest ono is a decision of the year 1890, in Avikutti Bhagavathi &: Anr.\n\nv. Chithambarathanu Mathevan, reported in 8 T.L.R. 51 where the effect of the evide.nce was stated as follows :\n\n\"From the evidence on both sides, it is clear to us that Krishnavakakkar to which the parties belong, follow the Hindu Jaw with one or two points of divergence from it, viz. the widow cohabiting with the brother of her deceased husband and the existence of Pathni\n\nBhagam.\"\n\n(I) (1921) I.LR. 44 (Madras), 7'40,\n\n7--\n\nXALIAMMA v. J; PILLAI (Alagiriswami, /.) 507\n\nA Tue next decision is of the year 1904, in Rama.swami Sadasivan\n\nv. Thanu Gouri, reported in Ko!appa Pillai's unreported important cases, p. 179. Here again on a consideration of the evidence it was held that the preponderance of evidence as a whole was in favour of Pathni Bhagorn. But one of the learned Justice\n\nobserved :\n\n\"The Pathni Bhagon which prevails in this community seems to go even beyond the usual custom known as Pathni BJiaiom. . . . that it is not only sons of different mothers that take per stirpes (according to the nwnber of mothers) but when one mother has got onlr female issue and . another a male issue the female 1ssqe get a half share in their father's properties and the male issue by the other wife of the father takes the other half.\" It is upon this decision that the plaintiff based her whole case.\n\nIt must be pointed out, however, that the learned Judge did not D go into the evidence regarding the particular type of pathnibhagam which was stated to be prevalent among this community.\n\nNor was it necessary to decide that question for the purpose of that case. It was a mere passing observation and this is a solitary case in which such a special custom is mentioned.\n\nWe then come to another dcclsian oi. the year 1944, in E Nagaru Pillai SaraswaJhi Amma v. Thanu Pillai Thanu Pillai,\n\nreported in 1944 ]'.L.R. 710. In that case also the special custom pleaded by the plaintiff did not arise for decision. What was urged was the right of absolute ownership for a widow of a member of a Krishnanvaka community. Tue argument was that the existence of Pathnibhagam in the community implied the F principle that on the death of the husband of a Krishnavakakar woman, in the absence of his children, she was entitled to inherit her husband's property absolutely. This contention was rejected but the decision proceeded on the basis that the custom of Pathnibhagam \"\".as prevalent in this community.\n\nThere is a decision of the District Court of N agercoil in 0 .S.\n\nG No. 109 of 1096 M.B., dated 22nd December. 1923, marked Ex A-6 .• wherein it was observed:\n\n\"But it has been held in Kolappa Pillay, page 179 that in the community Krishnavakakars to which the parties belong that when a man dies leaving two wives even though one wife might have only female issues such females issue are entitled to a half share as the Pathnibhagam to thir mother. It appears to me therefore that under the ruling in Kolappa Pillay's Select Decisions cited before in which 8 T.L.R. 51 and I.LR. 17-L796Sup.C. I. /73\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll•\n\nl6, Calcutta 759 have been cited and followed, plaintilfs are also entitled to a half share in the assets of Kunchan.\"\n\nThere 1s another decision of the District Munsiff's Court of Kuzhithurai in 0.S. No. 18 of 1959, dated 2nd January, 1960, wherein it was observed:\n\n\"Ex. B. 26 judgment proc~ on the basis that as the parties belonged to Krishnan Vakakkar commu- , nity per capita division among them is not allowable.\n\n'That community does not follow Hindu Mithakshara Law.\n\nThere is authority for the possession that this community follows the system known as Patnibhagam under which property of the deceased is inherited according to the number of widows he had irrespective of the existence of the children to the deceased.\"\n\nThis decision recognised the existence of Pathnibhagam but not the special custom pleaded by the plaintiff.\n\nIt is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in. point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in Ramaswami Sadasivan v. Thanu Gouri. This observation was not, however, based on a disc11Ssion of the evidence and was not necessary for the decision . in that case, as already pointed out.\n\nWhile it is true that this comlhllll.ity is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on that ground ignore the well established principie that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case.\n\nThus while the existence of the custom of pathnibhagam in the\n\ncominunity may be said to have been established, the special , kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement.\n\nThe appeal is_ dismissed with costs of the. 1st respondent to be paid by the appellant.\n\nV.P.S.\n\nAppeal dismissed •", "total_entities": 35, "entities": [{"text": "KALIAMMA", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "KALIAMMA", "offset_not_found": false}}, {"text": "JANARDHANAN PILLAI & ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "JANARDHANAN PILLAI & ORS", "offset_not_found": false}}, {"text": "February 8, 1973", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "KALIAMMA v.\n\nJANARDHANAN PILLAI & ORS ..\n\nFebruary 8, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nHindu Law-Special custom-Proof of-Reliance on pr(or decisions."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 61, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 78, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 57(1)", "label": "PROVISION", "start_char": 1287, "end_char": 1295, "source": "regex", "metadata": {"statute": null}}, {"text": "Avikutti Bhagavathi", "label": "OTHER_PERSON", "start_char": 1957, "end_char": 1976, "source": "ner", "metadata": {"in_sentence": "[50 DJ\n\nAvikutti Bhagavathi & Anr, v. Chithambaratham Mathevan, reported m 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu Gouri reported in Kol•ppa Pillai's unreported important cases, p. 179 and Hagaru Pillaf Saraswathi Amma v. Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred to."}}, {"text": "Kol•ppa Pillai", "label": "OTHER_PERSON", "start_char": 2084, "end_char": 2098, "source": "ner", "metadata": {"in_sentence": "[50 DJ\n\nAvikutti Bhagavathi & Anr, v. Chithambaratham Mathevan, reported m 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu Gouri reported in Kol•ppa Pillai's unreported important cases, p. 179 and Hagaru Pillaf Saraswathi Amma v. Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred to."}}, {"text": "K. T. Harindranath", "label": "LAWYER", "start_char": 3042, "end_char": 3060, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M. R. Krishna Pillai, for the appellant."}}, {"text": "S. N. Sudhakaran", "label": "LAWYER", "start_char": 3062, "end_char": 3078, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M. R. Krishna Pillai, for the appellant."}}, {"text": "P. Kesava Pillai", "label": "LAWYER", "start_char": 3080, "end_char": 3096, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M. R. Krishna Pillai, for the appellant."}}, {"text": "M. R. Krishna Pillai", "label": "LAWYER", "start_char": 3101, "end_char": 3121, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M. R. Krishna Pillai, for the appellant."}}, {"text": "Lily Thomas", "label": "LAWYER", "start_char": 3143, "end_char": 3154, "source": "ner", "metadata": {"in_sentence": "Lily Thomas and A. Sreedhara11 Nambiar, for respondent B No."}}, {"text": "A. Sreedhara11 Nambiar", "label": "LAWYER", "start_char": 3159, "end_char": 3181, "source": "ner", "metadata": {"in_sentence": "Lily Thomas and A. Sreedhara11 Nambiar, for respondent B No."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 3252, "end_char": 3264, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nALAGIRISWAMI, J. This is an appeal by special leave against the judgment of the High Court of Madras in Second Appeal."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 3332, "end_char": 3352, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nALAGIRISWAMI, J. This is an appeal by special leave against the judgment of the High Court of Madras in Second Appeal."}}, {"text": "Ayyappan Mathevan Pillai", "label": "OTHER_PERSON", "start_char": 3411, "end_char": 3435, "source": "ner", "metadata": {"in_sentence": "c\n\nThe appellant is the daughter of one Ayyappan Mathevan Pillai, who died on 17th January, 1949, by one of his wives, the second respondent."}}, {"text": "Mathevan Pillai", "label": "OTHER_PERSON", "start_char": 4500, "end_char": 4515, "source": "ner", "metadata": {"in_sentence": "She pleaded that as Mathevan Pillai had two wives and she was the daughter by one wife and the 1st defendant the son by the other wife each of them was entitled to a half share."}}, {"text": "District Judge of Kanyakumari", "label": "COURT", "start_char": 4858, "end_char": 4887, "source": "ner", "metadata": {"in_sentence": "On appeal the District Judge of Kanyakumari without going into the G evidence but on the basis of some earlier decisions allowed the appeal."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 7485, "end_char": 7490, "source": "regex", "metadata": {"statute": null}}, {"text": "Mayne", "label": "OTHER_PERSON", "start_char": 8416, "end_char": 8421, "source": "ner", "metadata": {"in_sentence": "In Palaniappa Chetti'ar v. Alagan Chetti( ) the PriyY Council referred to the statement of law by Mayne in his Hindu Law (Edn."}}, {"text": "Oudh", "label": "GPE", "start_char": 8813, "end_char": 8817, "source": "ner", "metadata": {"in_sentence": "This practice prevails locally in Oudh, as evidenced by numerous W ajib ularz, which I have seen in cases under appeal to the Privy Council.\""}}, {"text": "Southern India", "label": "GPE", "start_char": 8990, "end_char": 9004, "source": "ner", "metadata": {"in_sentence": "They also referred to the prevalence of the custom in many parts of Southern India, as referred to by Mr. Ellis, on page 357 of Vol."}}, {"text": "Ellis", "label": "OTHER_PERSON", "start_char": 9028, "end_char": 9033, "source": "ner", "metadata": {"in_sentence": "They also referred to the prevalence of the custom in many parts of Southern India, as referred to by Mr. Ellis, on page 357 of Vol."}}, {"text": "Patnibhaga", "label": "OTHER_PERSON", "start_char": 9554, "end_char": 9564, "source": "ner", "metadata": {"in_sentence": "Their Lordships, therefore, approached the evidence in that case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, and after examining the F evidence came to the conclusion that the custom of Patnibhaga was proved."}}, {"text": "Krishnavakakkar", "label": "OTHER_PERSON", "start_char": 9944, "end_char": 9959, "source": "ner", "metadata": {"in_sentence": "v. Chithambarathanu Mathevan, reported in 8 T.L.R. 51 where the effect of the evide.nce was stated as follows :\n\n\"From the evidence on both sides, it is clear to us that Krishnavakakkar to which the parties belong, follow the Hindu Jaw with one or two points of divergence from it, viz."}}, {"text": "Ko!appa Pillai", "label": "OTHER_PERSON", "start_char": 10344, "end_char": 10358, "source": "ner", "metadata": {"in_sentence": "44 (Madras), 7'40,\n\n7--\n\nXALIAMMA v. J; PILLAI (Alagiriswami, /.) 507\n\nA Tue next decision is of the year 1904, in Rama.swami Sadasivan\n\nv. Thanu Gouri, reported in Ko!appa Pillai's unreported important cases, p. 179.", "canonical_name": "Ko!appa Pillai"}}, {"text": "Pathni Bhagorn", "label": "OTHER_PERSON", "start_char": 10518, "end_char": 10532, "source": "ner", "metadata": {"in_sentence": "Here again on a consideration of the evidence it was held that the preponderance of evidence as a whole was in favour of Pathni Bhagorn."}}, {"text": "District Court of N agercoil", "label": "COURT", "start_char": 12210, "end_char": 12238, "source": "ner", "metadata": {"in_sentence": "There is a decision of the District Court of N agercoil in 0 .S.\n\nG No."}}, {"text": "22nd December. 1923", "label": "DATE", "start_char": 12279, "end_char": 12298, "source": "ner", "metadata": {"in_sentence": "109 of 1096 M.B., dated 22nd December."}}, {"text": "Kolappa Pillay", "label": "OTHER_PERSON", "start_char": 12685, "end_char": 12699, "source": "ner", "metadata": {"in_sentence": "It appears to me therefore that under the ruling in Kolappa Pillay's Select Decisions cited before in which 8 T.L.R. 51 and I.LR.", "canonical_name": "Ko!appa Pillai"}}, {"text": "SUPREME COURT REPORTS (1973] 3 S.C.ll•\n\nl6, Calcutta 759", "label": "COURT", "start_char": 12785, "end_char": 12841, "source": "ner", "metadata": {"in_sentence": "C. I. /73\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll•\n\nl6, Calcutta 759 have been cited and followed, plaintilfs are also entitled to a half share in the assets of Kunchan.\""}}, {"text": "Kunchan", "label": "OTHER_PERSON", "start_char": 12934, "end_char": 12941, "source": "ner", "metadata": {"in_sentence": "C. I. /73\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll•\n\nl6, Calcutta 759 have been cited and followed, plaintilfs are also entitled to a half share in the assets of Kunchan.\""}}, {"text": "District Munsiff's Court of Kuzhithurai", "label": "COURT", "start_char": 12978, "end_char": 13017, "source": "ner", "metadata": {"in_sentence": "There 1s another decision of the District Munsiff's Court of Kuzhithurai in 0.S. No."}}, {"text": "2nd January, 1960", "label": "DATE", "start_char": 13048, "end_char": 13065, "source": "ner", "metadata": {"in_sentence": "18 of 1959, dated 2nd January, 1960, wherein it was observed:\n\n\"Ex."}}]}
{"document_id": "1973_3_510_514_EN", "year": 1973, "text": "51()\n\n'liHE COMMISSIONER OF INCOME-TAX, WEST BENGAL,\n\nII CALCUITA v.\n\nM/S. NAGA HILLS TEA CO. LTD.\n\nFebruary 8, 1973\n\n[K. S. I!EGDE, P., JAGANMOHAN REDDY AND H. R. KHANNA, JJ.l\n\nFinnnce Act, 1959, First Schedule, Part 11, Paragl'aph D--Carry over of unabsorbed rebate--Scope of.\n\nFor the assessment year 1959-60 the total income of the assessee. company was utilised and a rebate was allowed, on the corporation tax payable by it, under the provisions of Finance Act, 1959. Thereafter, that reb-ate was wiardrawn on the ground that there was an unabsorbed reduction of rebate in the assessment year 1957-58. For the assessment year 1958-59 the assessee's assessment disclosed a loss and no corporation tax was legal for that year.\n\nIt was contended by the assessee that the unabrbed reduction in rebate for the year 1957-58 could only be carried forward and set off against the rebate for the assessment year 1958·1959 under the provisions of Finance Act, 1958, and as there was no rebate available for the assessment year 1958-59 the unabsorbed reduo\n\ntion in rebate exhausted itself and could not be further set off against the rebate available in the assessment year 1959-60.\n\nThe contention was rejected by the Income-tax Officer and the Appellate Assistant Commi~ sioner. The Tribunal and the High Court in reference, however, held in favour of the assessee.\n\nDismissing the appeal to this Court,\n\nHELD : It is a cTear from paragraph D of Part II of the First Schedule to the Finance Act, 1959, that it does not provide for carry over of any unabsorbed rebate from year to year. All that the provision provides for is that if there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that can be taken into consideration while allowing rebate in the assessment year 1959-60. A power in favour of the revenue to tatce mto consideration any unabsorbed reduction in rebate for any year prior to 1958-59 cannot be read into the provision.\n\nAt any rate, the view taken by the High Court appears to be a reasonable one, and, it a provision of taxing statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee must be accepted.\n\n[513F-H; 5140-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.--496 of 1970.\n\nAppeal bv Certificate from the Judgment and order dated August 13, 1964 of the Calcutta High Court at Calcutta in Income tax Reference No. 148 ot 1966.\n\nT. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant. H\n\nB. Sen, Lellu Seth, 0. P. Kizaitan and B. P. Maheshwari, for the respondent.\n\nC.I.1'. v. NAGA HILLS TEA CO. LTD. (Hegde, J.) 511\n\nA The Judgment of the Court was delivered by\n\nHBGDE, J. This appeal biY certificate arises from the decision of the Calcutta High Court in a reference under section 66 ( 1) of the Indian Income-taX. Act 1922 (to be hereinafter referred to as the 'Act') . The question referred to the High Court for its\n\n8 its opinion reads : ·\n\n\"Whether, on the facts and in the c;; ircwnstances of the case, the Tribunal was right in boldiJJ& that the assessee, having not been assessed to super-tax fot the assessment year 1958-59, the unabSorbed reduction in rebate under clause (i)(a) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act, 1957, could not be set oft against the rebate available to the assessee under the Finance Act,\n\n1959, and that accordingly the Income-tax Officer was not justified in reducing the rebate of Rs. 16,114/- available to the assessee for the assesment year 1959-\n\n60?\"\n\nFollowig its earlier decision in Commissioner of Income Tax, West Bengal-I v. Deoria Sugar Mills Ltd.,(l) the High Court answered that question in favour of the assessee. Aggrieved by that decision the Commissioner of Income Tax for West Bengal has brought this appeal.\n\nThe facts material for the purpose of deciding question as could be gathered from the case stated by the Tribunal may now be set out. The assessment year y.rith which we are con- . cemed in this case is 1959-60; the relevant accounting year being the calendar year 1958. The -assessee is a Tea Company. For the assessment year 1959-60 it was assessed to a total income of F Rs. 55,257/ -. The Corporation tax payable by the assessee on that amount was computed at Rs. 26,357 I-. On that a rebate of Rs. 16,114/ - was allowed under the provisions of the Fmance Act\n\n1959. Thereafter that rebate was withdrawn by the Income Tax Officer on the ground that there wu an unabsorbed reduction of rebate amounting to Rs. 27,144/· in the assessment year 1957 G\n\n58. While making assessment for the assessment year 1959-60 the. Income Tax Officer reduced the rebate to nil by taking into consideration the unabsorbed reduction of rebate in the assessment year 1957-58. At this stage it may be noted that in the\n\nasses8ee's assessment for the assessmeat year 1958-59 the loss of Rs. 73,920/- was determined and no corporation tax was levied\n\nH for that year.\n\nIt was contended before the Income-tax Officer that the unabsorbed reduction in rebate for the .year 19S7-S8 could only be\n\n(1) 80 L T.ll. 408.\n\nSUPREME COURT REPORTS [197.3] 3 s.c.R.\n\ncarried forward and set off against the rebate for the assessment 4 year 1958-59 under the provision of he Finance Act, 1958, and as there was no rebate available for the assessment year 1958-59, -the unabsorbed reduction in rebate exhausted itself and could not be further set off against the rebate available for the assessment year 1959-60. This contention was rejected by the Income-tax Officer.\n\nIn appeal, the Appellate Assistant Commisisoner con- & firmed the decision of the Income-tax Officer but on a further appeal being taken to the Tribunal, the Tribunal accepted the contention of the assessee and thereafter, at the instance of the Commissioner, the question formulated above was referred to the High Court. As mentioned earlier, the High Court has answered that question in favour of the assessee.\n\nWe may now read the relevant provisions of the Finance Act,\n\n1959. They are found in Paragraph D ot Part IT of the First Schedule to the Finance ACt, 1959 and are as under:\n\n\"In the case of the Life Insurance Corporation of India established under the_ Life Insurance Corporation Act, 1956 (XXXI of 1956),-\n\nRATE OF SUPER-TAX On the whole of its profits and gains\n\nfrom life insurance business.\n\nIn the case of every other company,-\n\nRATE OF SUPER-TAX\n\nOn the whole of the total income Provided that,-\n\n11%\n\n50%\n\n(i) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 35 per cent on the balance of the total jncome shaH be a11owed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1960, has made the prescribed arrangements for the declaration and payment within India of the dividends payable out of such profits and for the deduction of super-tax from dividends in accordance with the provisions of sub-section (3D) of section 18 of that Act; and\n\n(b) is such a company as is referred to in subsection (9) of-section-23A of. the IncOme-tax Act with a total income not exceeding Rs. 25,000;\n\nC.I.T, v. NAGA lULLS TEA CO, LTD, (Hegde, /.) 513\n\n(ii) a rebate at the rate of 40 per cent on so much of the total income as COD$ists of dividends from a sub- 6idiary Indian company and a rebate at the rate of 30% on the balance of the toW income shall be allowed in the case of any company which satisfied condition (a) but not condition (b) of the preceding clause;\n\n(iii) , a rebate at the rate of 40% on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 20% on the balance of the total income shall be allowed in the case of my company not entitled to a rebate under either of the preceding clauses : Provided further that,-\n\n(i) the amount of the rebate under clause (i) or clause (ii) shall be reduced by the Sl!ffi_, if any, eal to the amount or_ the aggregate of the amounts, as the case may be, computed as hereunder :-\n\n(a) on tat part of the . aggregate of the sums arrived at in accordance with clause (i) of the second proviso to paragraph D of Part II of the First Schedule to the Finance Act, 1958 (XI of 1958), as has not been deemed to have been taken into account, in accordance with cfause (ii) of the said -proviso, for the purpose of reducing the rebate mentioned in clause (i) of the said proviso t<> nil;\n\n(b) ..................•. \"\n\nAt the outset we may mention that the provision of law is extremely confusing. It required more than one reading on our part to understand what it means. One thing is clear from the provision, namely, it does not provjde for carryover of any unabsorbed rebate from year to year. Mr. Ramachandran contended that when the Finance Act says \"on that paq of the aggregate of the sums arrived at in accordance with clause ( i) of the second proviso to Paragraph D of Part II of the First Schedule to the Finance Act 1958 (Act XI of 1958) as has not been deemed to have been taken into acc6unt, in accordance with clause (ii) of the said proviso, for the purpose of reducing the rebate mentioned in clause ( i) of the said proviso to nil\", it means that the unabsorbed deduction of rebate can be carried forward untill it is reduced to nil. We are' unable to accept this contention as correct. In our opinion, all that provision provides for is that if there is any unabsorbed reduction of rebate in the assessment year 1958-59, then that c~ be taken into considera tion while allowing rebate in the assessment year 1959-60. We\n\nSUPREME COURT REPORTS [1973] 3 s .c.a.\n\nare unable to rea~ into th~ pro-...:ision in question a power to Revenue to take mto _cns1derat10n any unasorbed reductione rebate for any year pnor to 1958-59. That 1s the view tak m the Calcutta High Cour~ in t?e case mentioned earlier. eti~ Calcutta High Court opmed m that case that the second P . • to Paragraph D of Part II of the First Schedule to the Ffu 0 150 Act, 1959 providt;~ that the amount ?f rebate to be allowed u~~~ clauses (i) and (u) of the first proviso thereto has to be reduced a to the sum,..if any, equal to the amoun~ or the aggregate of th: amount, as the case may be, computed m the manner set out in the second proviso. It further observed :\n\n\"Now, clause (i) (a) of the second proviso refers to th, aggregate of the sums arrived at in accordance with clause (i) c{ c the second proviso to Paragraph D of Part II of the First Schedu~ to the Finance Act of 1958.\" The aforesaid proviso in 195~ Act, therefore, can apply only when there was a total income in terms of 1958 Act and certain reduction from that total incom~ remained unabsorbed in 1958. If a particular assessee baJ suffered loss in 1958, there was no income to which a rate ci I} super-tax prescribed in the 1958 Act could be applied and if n0 rate of super-tax was applicable, there was no question of rebat! or reduction in rebate to be allowed under the 1958 Act.\" We are in entire agreement with the view expressed therein. At any rate the view taken by the High Court appears to be a reasonable view. 1i a provision of a Taxing Statute can be reasonably inter £ preted in two ways, that interpretation whkh is favourable :o the assessee, has got to be accepted. This is a well accepted Vlew of b~ . .\n\nIn the result this appeal fails and the same is dismissed with costs.\n\nV.P.S.", "total_entities": 40, "entities": [{"text": "liHE COMMISSIONER OF INCOME-TAX, WEST BENGAL,\n\nII CALCUITA", "label": "PETITIONER", "start_char": 7, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, WEST BENGAL, II CALCUTTA", "offset_not_found": false}}, {"text": "M/S. NAGA HILLS TEA CO. LTD", "label": "RESPONDENT", "start_char": 70, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "M/S. NAGA HILLS TEA CO. LTD", "offset_not_found": false}}, {"text": "February 8, 1973", "label": "DATE", "start_char": 100, "end_char": 116, "source": "ner", "metadata": {"in_sentence": "February 8, 1973\n\n[K. S. I!EGDE, P., JAGANMOHAN REDDY AND H. R. KHANNA, JJ.l\n\nFinnnce Act, 1959, First Schedule, Part 11, Paragl'aph D--Carry over of unabsorbed rebate--Scope of."}}, {"text": "JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 137, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ", "label": "JUDGE", "start_char": 158, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Finnnce Act, 1959", "label": "STATUTE", "start_char": 178, "end_char": 195, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 197, "end_char": 211, "source": "regex", "metadata": {"linked_statute_text": "Finnnce Act, 1959", "statute": "Finnnce Act, 1959"}}, {"text": "Finance Act, 1959", "label": "STATUTE", "start_char": 455, "end_char": 472, "source": "regex", "metadata": {}}, {"text": "Finance Act, 1958", "label": "STATUTE", "start_char": 943, "end_char": 960, "source": "regex", "metadata": {}}, {"text": "is a cTear from paragraph D of Part II of the First Schedule to the Finance Act, 1959", "label": "STATUTE", "start_char": 1413, "end_char": 1498, "source": "regex", "metadata": {}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 2431, "end_char": 2449, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2451, "end_char": 2462, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2467, "end_char": 2481, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "H\n\nB. Sen", "label": "LAWYER", "start_char": 2502, "end_char": 2511, "source": "ner", "metadata": {"in_sentence": "H\n\nB. Sen, Lellu Seth, 0."}}, {"text": "Lellu Seth", "label": "LAWYER", "start_char": 2513, "end_char": 2523, "source": "ner", "metadata": {"in_sentence": "H\n\nB. Sen, Lellu Seth, 0."}}, {"text": ". P. Kizaitan", "label": "LAWYER", "start_char": 2526, "end_char": 2539, "source": "ner", "metadata": {"in_sentence": "H\n\nB. Sen, Lellu Seth, 0."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2544, "end_char": 2560, "source": "ner", "metadata": {"in_sentence": "P. Kizaitan and B. P. Maheshwari, for the respondent."}}, {"text": "Hegde", "label": "JUDGE", "start_char": 2619, "end_char": 2624, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 511\n\nA The Judgment of the Court was delivered by\n\nHBGDE, J. This appeal biY certificate arises from the decision of the Calcutta High Court in a reference under section 66 ( 1) of the Indian Income-taX. Act 1922 (to be hereinafter referred to as the 'Act') ."}}, {"text": "HBGDE", "label": "JUDGE", "start_char": 2681, "end_char": 2686, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 511\n\nA The Judgment of the Court was delivered by\n\nHBGDE, J. This appeal biY certificate arises from the decision of the Calcutta High Court in a reference under section 66 ( 1) of the Indian Income-taX. Act 1922 (to be hereinafter referred to as the 'Act') ."}}, {"text": "section 66", "label": "PROVISION", "start_char": 2792, "end_char": 2802, "source": "regex", "metadata": {"statute": null}}, {"text": "Paragraph D of Part II of the First Schedule to the Finance Act, 1957", "label": "STATUTE", "start_char": 3233, "end_char": 3302, "source": "regex", "metadata": {}}, {"text": "Finance Act", "label": "STATUTE", "start_char": 3380, "end_char": 3391, "source": "regex", "metadata": {}}, {"text": "Commissioner of Income Tax for West Bengal", "label": "JUDGE", "start_char": 3765, "end_char": 3807, "source": "ner", "metadata": {"in_sentence": "Aggrieved by that decision the Commissioner of Income Tax for West Bengal has brought this appeal."}}, {"text": "Fmance Act", "label": "STATUTE", "start_char": 4387, "end_char": 4397, "source": "regex", "metadata": {}}, {"text": "S8", "label": "PROVISION", "start_char": 5089, "end_char": 5091, "source": "regex", "metadata": {"linked_statute_text": "the Fmance Act\n\n1959", "statute": "the Fmance Act\n\n1959"}}, {"text": "Finance Act, 1958", "label": "STATUTE", "start_char": 5275, "end_char": 5292, "source": "regex", "metadata": {}}, {"text": "Assistant Commisisoner", "label": "PETITIONER", "start_char": 5594, "end_char": 5616, "source": "ner", "metadata": {"in_sentence": "In appeal, the Appellate Assistant Commisisoner con- & firmed the decision of the Income-tax Officer but on a further appeal being taken to the Tribunal, the Tribunal accepted the contention of the assessee and thereafter, at the instance of the Commissioner, the question formulated above was referred to the High Court."}}, {"text": "may now read the relevant provisions of the Finance Act", "label": "STATUTE", "start_char": 5986, "end_char": 6041, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 6098, "end_char": 6112, "source": "regex", "metadata": {"linked_statute_text": "We may now read the relevant provisions of the Finance Act,\n\n1959", "statute": "We may now read the relevant provisions of the Finance Act,\n\n1959"}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 6236, "end_char": 6272, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6805, "end_char": 6819, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "31st day of March, 1960", "label": "DATE", "start_char": 6847, "end_char": 6870, "source": "ner", "metadata": {"in_sentence": "In the case of every other company,-\n\nRATE OF SUPER-TAX\n\nOn the whole of the total income Provided that,-\n\n11%\n\n50%\n\n(i) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 35 per cent on the balance of the total jncome shaH be a11owed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1960, has made the prescribed arrangements for the declaration and payment within India of the dividends payable out of such profits and for the deduction of super-tax from dividends in accordance with the provisions of sub-section (3D) of section 18 of that Act; and\n\n(b) is such a company as is referred to in subsection (9) of-section-23A of."}}, {"text": "India", "label": "GPE", "start_char": 6948, "end_char": 6953, "source": "ner", "metadata": {"in_sentence": "In the case of every other company,-\n\nRATE OF SUPER-TAX\n\nOn the whole of the total income Provided that,-\n\n11%\n\n50%\n\n(i) a rebate at the rate of 40 per cent on so much of the total income as consists of dividends from a subsidiary Indian company and a rebate at the rate of 35 per cent on the balance of the total jncome shaH be a11owed in the case of any company which- ( a) in respect of its profits liable to tax under the Income-tax Act for the year ending on the 31st day of March, 1960, has made the prescribed arrangements for the declaration and payment within India of the dividends payable out of such profits and for the deduction of super-tax from dividends in accordance with the provisions of sub-section (3D) of section 18 of that Act; and\n\n(b) is such a company as is referred to in subsection (9) of-section-23A of."}}, {"text": "section 18", "label": "PROVISION", "start_char": 7106, "end_char": 7116, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act, 1956", "statute": "Life Insurance Corporation Act, 1956"}}, {"text": "IncOme-tax Act", "label": "STATUTE", "start_char": 7216, "end_char": 7230, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Part II of the First Schedule to the Finance Act, 1958", "label": "STATUTE", "start_char": 8301, "end_char": 8355, "source": "regex", "metadata": {}}, {"text": "Ramachandran contended that when the Finance Act", "label": "STATUTE", "start_char": 8883, "end_char": 8931, "source": "regex", "metadata": {}}, {"text": "Paragraph D of Part II of the First Schedule to the Finance Act 1958", "label": "STATUTE", "start_char": 9046, "end_char": 9114, "source": "regex", "metadata": {}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 10006, "end_char": 10025, "source": "ner", "metadata": {"in_sentence": "eti~ Calcutta High Court opmed m that case that the second P . •"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 10099, "end_char": 10113, "source": "regex", "metadata": {"linked_statute_text": "Paragraph D of Part II of the First Schedule to the Finance Act 1958", "statute": "Paragraph D of Part II of the First Schedule to the Finance Act 1958"}}]}
{"document_id": "1973_3_515_521_EN", "year": 1973, "text": "~ .. [ '\n\n515.\n\n. ..\n\nG. MURUGESAN & BROS . v.\n\nI .\n\n. '\n\nC.I.T., MADRAS February 8, 1973\n\n[KS JlEGDE, P: J~G~NMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nJncome-ta.~-Assocwtton.\n\n1 of. Pcrdsns'- 1 What constitutes-Volition on\n\nI ,\n\nf members an essentm mgre tentn case of realisation of divlpar~ 0 there is no' act of management-The statement of members that ~I ad s/arted tfrawing dividends Separately must be accepted in abse11ce\n\n~~acts. to the conrrt~'-Tircy must be asses.red as 'Individuals.'\n\nFr the years 1957-58, to 19.62~63 the assessee, s were assescd by the.\n\nJocometax Officer as an Association of Persons. They bad filed their returns for the first two of these years as 'Association of persons' but jn !959-60 they claimed that they had diidcd their interest in the shares\n\nheld by hem and therefore in respect of them they should be thereafter assessed as 'Individuals' •. The Appellate Assistant Commissioner upheld the order of the Income-tax Officer. The Tribunal however held that the assessecss should be assessed as 'Individuals' and not as Association of Persons'. The Hjgh Court in reference answered in favour of the Revenue.\n\nD ln appeal by c'ertificate it was urged on behalf of the assessees appcllant3\n\nthat the facts that a joint gift of shares was made in favour of more than ooo pcrsor. or those shares were registered jointly in their names or even the fact that the clividcnG was realised together did not go to show tlut the stmrc-hoklcr' or the beneficiaries did act as an 'Association of Perr.ons.'\n\nHELD: (i) For forming on 'Assoc'iation of Persons' the rnembers of the association must join together for the purpose of producing teome. ~- ·ssociation of Per..ons' can be formed only when two or mor.:\n\nmd!tduls voluntarily combine together for a certain purpose. Hence\n\noiJllo~ on the. part of the members of the association is an essential lngrcdtcnt.\n\n{519FG]\n\n~~ the case of receiving diviJ.::nd~ from shares where there is no r ueshon of any management it is difticult to draw an inference that J0 or more shareholders funt ioned 11s un 'Association of Persons', from cef mere fc~ that they jointly own one or more shares and jointly reve the dtvH!eods declared. These circ'Umstances do not by themselves go 10 Lhow that they acted liS an 'Association of Persons'. [5l9GH1\n\ni!. (ii) For the years 1957·58 and 1958-59 the usscssccs were rigtly\n\n\\\\bsed as an 'Association of Persons' because of their own admisston G fc~. was an import.ant piece of cvid.:nce. [519H; 5:!0A-BJ tn}1\") For the years 1959-60 and 1962-63 they ha.J s~:citk':llly s!at.:d the they were no more functioning a! an 'Asociation of rcrsons • In to ~~'>e of an •Association ol Persons' It is always open to rts embers l thdraw from the same No one' can b., compcl!t:d to co!\"ll!lue a.s P<tti her of an association.\n\nFor withdrawing from an assocratao:n no •'\\! ilr form n<.'(!d be obsrved. (520C-D] 11 Ir ~~~ ti~.Pesent C'ase the question rdatd. only hto rea!isa:lisf ti:/~&~:\n\n<lends as r.vr~l member.s of the assocratton c oose_. ion The assese~· arr lndJ\\rJual!l there is an cnJ of the as.o~.:ta • : • I 'tv\n\nrernai~~ tat tbbey had realised their iviJcnJd~ inothcefhlrdicli~~ Nd'nclof\n\nunrc ul!ed. There was notlung to tspr v ·\n\nt. .\n\n- ~· ,\n\nSUPREME COURT REPORTS\n\n(1973] 3S.C.R.\n\nthe facts proved could be said to be inconsistent with the claim made by them.\n\n[5200-EJ\n\nThe answer, therefore, in respect of the years 1959-60 to t962-63 must be i, h favour of the assessees. [521CDJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 685 to 690 of 1970.\n\nAppeals by certificate from the judgment and order dated 27th June 1968 by the Madras High Court at Madras in Tax case No. 308 of 1964.\n\nM. C. Setalvad and T. A. Ramachandran, for the appellant.\n\nN, D. Karkhanis, S; P. Nayar and R, N. Sachthey, for the res- C pondents.\n\nThe Judgment of the Court was. delivered by\n\nHEGDE, J.\n\nThese are connected appeals by certificate.\n\nThey are directed against the decision of the High Court of Madras in a \\{eference under Section 66 ( 1) of the Indian Income-Tax Act, D\n\n1921. (to be hereinafter referred to as the Act) .\n\nThe question of law referred for ascertaining the opinion of the High <::ourt was : . .\n\n\"Whether on the facts and in the circumstances of the case, the Department was justified in assessing the assessee in the status of an Association of Persons?\"-\n\nIn this case we are concerned with the assessment of the assessee for 1h_e assessment years 1957-1958 to 1962-63. In all these years tfie .assessees were assessed as an 'Association of the persons'. The contention of the assessees is that in the years, in question, they should have been assessed as 'individuals' and not as an 'Association of Persons'. Therefot:e, the only question that calls for decision is as to the status of the assessee during the relevant assessment yea~.\n\nFor deciding the question formulated above, it is necessary to divide the assessment years into two groups. For th~ assessment years 1957-58 and 1958-59 the assessees themselvessubmitted their return in the status of 'Association of Persons', but for the later years, they submitted their retUrns as 'individuals'. In their returns for the assessment years 1959-60, they staled that they have divided their interest in the shares and therefore they should pe thereafter assessed as 'individuals'. It is necessary mentio~\n\none other circumstance before we proceed to set ourthe relevant facts. The income in which we are concerned in this case arises under two heads. Part of the income arises from house propertY\n\nG. MURUGESAN v. C.I.T. (Hegde, ].) 517\n\nA and the remaining income arises from dividends from shares. ~\n\nfr as the income from house property is concerned, the High Court has answered the question in favour of the assessee; the Revenue. has not appealed against that decision. Hence we nee~\n\nnc't go into that aspect. . All that we have to decide in the present esse is whether the dividend income which i$ the subject-matter B cf these appeals should be assessed in the hands of the appellant$\n\n<1~ an 'Association of Persons' or as 'individuals'.\n\nNow, we shall refer to the material facts as could be athered from the case stated by that Tribunal. One Simiamam Nadar\n\n(who will be hereinafter referred to as 'N adar') and his son Ganesan partitioned their family properties on December 4, 1940.\n\nThereafter, Nadar started a firm of his own on June 27, 1955.\n\nLater Nadar executed a settlement deed in favour of his four grandsons,_ namely, .G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel. The property covered by the said settlement deed included a house property, which had been let out. Under this settlement deed, the donees are to enjoy during the life time the properties gifted and thereafter the same was to devolve on their children. Sometime thereafter Nadar purchased a number of shares iri Joint Stock Companies in the name of 'G.\n\nMurugesan & Brothers'.\n\nFor each of such purcbase, a debit entry was made in the books of the firm. The share applic:; ations (lddressed to the companies for the transfer of the shares from the prior owners , to the name of G. Murugesan and Brothers were s.igned by Padamavathy Ammal, the mother of donees as their guardian.\n\nThe donees were minors at the time most of these transactions; took place. Murugesan became a major on March 3, 1955.\n\nAfter 1959, Murugesan himself signed all transfer applications both on his behalf as well as on behalf of his brothers.\n\nThe youngest of the brothers became a major on 15th December,\n\n1962. The income from the house property and the dividend income from shares were credited to an account called \"G. Murugesan & Brothers\" in the books of Nadar's Firm. In those books. there are separate accounts for G. Murugesan; G. Kathiresan, G.\n\nRaja Shankar and G. Vetrivel. Private income and expenses of these persons were credited or debited to these individual accounts. At the end of each year the balance in the account of G. Murugesan & Brothers is transferred in equal proportion to the individmi.l accounts of the four persons mentioned above. There was a partition between Ganesan and his sons on 3rd February 1958, but that does not include the house property or the shares g, ifted by Nadar to his grandsons. As mentioned ear!ier for the\n\nassessment years 1957-58 and 1958-59, the assessees submitted their returns in the status of 'Association of Persons' and thereafter they submitted their returns as individuals.\n\n....\n\n\n(1973) 3 S.C.R.\n\nOn the basis of the above facts, the Income Tax Officer assessed the assessee durin:g all the years mentioned earlier in the status of 'Association of Persons'. His orders were confirmed by the Appellate Assistant Commissioner.\n\nBut on a further appeal\n\nt~ the Appellate Tribu1,1al, the Tribunal held that the assessee should be assessed as 'individuls' and not as 'Association of Persons'. At the instance of the Commissioner, the question set out earlier was referred to the High Court. TheJJigh Court answered that question in the affirmative and in favour of the Revenue.\n\nThe High Court was of the opinion that because of the fact that the shares were purchased jointly in the name of G. Murugesan & Brothers, the transfer applications were filed by Padmavathy acting as guardian of all the assessees, and further, after Murugesan became major, he collected the dividends jointly on behalf of the assessees, the assessees should be considered to have acted as an 'Association of Persons'. That conclusion is challenged before us by Mr. Setalvad, appearing on behalf of the assessees.\n\nCounsel urges that the facts that a joint gift of shares was made in favour of more than one persons or those shares were registered jointly in their names or even the fact that the dividend wa~\n\nrealised together do not go to show that the shareholders or the beneficiaries did act as an 'Association of Persons'.\n\nOn the other hand, it is contended on behalf of the Revenue by Mr.\n\nKarkhanis that the facts proved in this case clearly establish that the assessee functioned as an 'Association of Persons'.\n\nThe expression 'Association of Persons' is not a term of art.\n\nThat expression has come up for coniideration before this Court in more than one case.\n\nIn Commissioner of Income-tax, Bombay, North, Kutch and Saurashtra v. lndra Balkrishna (39 I.T.R. 546), this Court after referring to the various judgments, observed thus :\n\n\"It is enough for our purpose to refer to three decisions : ln re. B. S. EUas (1935) 3 I.T.R. 408; Commissioner of Incometax v. Laxmidas Devidar (1937) 5\n\nI.T.R. 548; and In re: Dwarkanath Harishchandra Pitale (1937) 5 I.T.R. 716.\n\nIn re:\n\nB. N. Elias Derbyshire, C.J., rightly pointed out that the word G \"associate\" means, according to the Oxford Dictionary, \"to joiR in common purpose, or to join in an action. Therefore, an association of persons, must be one in which two o_r more persons join in a common purpose or cominon action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, . profits or H gains.\n\nThis was the view expressed by Beaumont, C.J., in Com-·\n\nmissior of Income-tax v. JAbhmdas Devidas, at page 589\n\n(1937) 5 I.T.R., an(! also ln re: Dwarkanath. Harishchandrli\n\nG, MURUGESAN v. C.I.T. (Hegde, J.) 519\n\nPita/e. In re : B. N. Elias, Costello; J., put the test in more forceful language. He said : \"It may well be that the intention of the Legislature was to hit combinations of individuals who were\n\nengaged together i~ same joint enterprise but did not in law constitute partnerships . . . . when we find, . . . . . . . . . . . . that there is a combination of persons formed for the promotion of a jcint enterprise . . . . . . . . then I think no difficulty arises whatever in the way of saying that . . . . these persons did coll!titute an association. . . . . . . . . .. /'.\n\nWe think that the aforesaid decision correctly lay down the\n\ncr:.dal test for determing what is an 'Association persons within the meaning of section 3 of the Income-tax Act, and they have\n\nbc, n accepted and followed in a number of later decisions of\n\ndHferent High Courts to all of which it is unnecessary to call intention .. It is, however, necessary to add some words of caution here.\n\nThere is no formula of universal application as to what facts, bow many of them and of what nature, are necessary to come to a conClusion that there is an association of persons within the meaning of section 3; it must depend on the particular facts and circum stances of each case as to whether the conclusion can be drawn or not,\"\n\nTn the course of that judgment, this Court also observed :\n\n\"With regard to the shares, dividend3, and interest on deposits there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the windows performed in respect thereof which produced or helped to produce income.'' For forming an 'Association of Persons', the members of the association must join together for the purpose of producing an iricome.\n\nAn Association of Persons' can be formed only when two or more individuals voluntarily combine together for a certain purpose.\n\nHence volition on the part of the .member of the association is an r.ssential ingredient. It is true that even a m!nor can join an 'Association of Persons' if his lawful guardian gives his consent.\n\nIn the case of receiving dividends from shares, where there is no question of any management, it is difficult to draw an inference that two more shareholders functioned as an 'Association .of Perns' from the mere fact that they jointly own one or more sharr.s. and jointly receive the dividends d.eclared. Those circumstances\n\ndo not by themselves go to show that they acted as an 'Association of Persons'.\n\nBut unfortunately for the assessee for the assessment years 1957-58 and 1958-59, they themselves had submitted their retums in the status of 'Association of Persons'. Those returns were\n\ns2o SUPREME COURT REPORrS\n\n[1973) 3 S.C.R.\n\nniether withdrawn nor did they file fresh returns as 'individuals'.\n\nItwas fonhe first time in the appeal, it was argued on their behalf 1hat they should not have been assessed as 'Association of Persons'.\n\nThe question whether the assessees functiond as on 'Association of _Persons' during those years was best known to them. Their\n\nrui.mission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression 'of law or is otherwise vitiated. Hence for those years they were rightly assessed as _an 'Association of Persons'. But so far as the other assessment years are concerned,\n\nthe same result does not follow. They themselves have specifically c stated that they are no more functioning as 'Association of Perons•: In the case of 'association of persons' it is always open to its members o withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form need be observed.\n\nAs seen earlier, herei.D. we are concerned only with the realisation D of dividends. If the individ11al members of the association choose to realise their dividends as inili; viduals, there is an end of the association. The assessee's assertion that they haye realised their -dividends in their individual capacity remains unrebutted. There\n\nis nothing to disprove that claim. Nope of the facts proved can be said to be inconsistent with the claim made by them .\n\n. . For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959-60 to 1962- 63, the assessees should be. held, as having functioned as an F \"association of persons'. Mr. Karkhanis in support of the contention of Revenue relied on the decision of the Bombay High Court iD. S. C. Gambatta v. Commissioner of Income-tax, Bombay (14 I.T.R. 748). Therein, the only question was whether when an action is taken by an Income-tax Officer under Section 23A, should the dividend deemed to have been declar~ to the shareholders must be considered has been taken by a husband and wife who were the joint holders of a share as an 'Association of Persons'' or by the husband alone who under the Articles ofAssociation was\n\nto act on behalf of the joint holders. The contention of the Revenue was that the husband alone was the shareholder. On the B other hand the contention of the assessee was that they were an •Ass<><:iation of Persons' and that contention was accepted by the\n\nG, MURUGESAN V. C.l.T, (Hegde, J.) 521\n\nCourt. The ratio of that decision has no bearing on the point in. issueJn the present case. We are also not able to agr~ with Mr.\n\nK.arkhanis that the decision of this Court inN. V. Shanmugham &:\n\nCo. v. Commissioner of Income-Tax, Madras (81 I.T.R. 310)\n\nlends any support for the contention of the Revenue. On the other hand, therein this Court relied upon the deeision of this Court in Commissioner of Incomi-tax, Bombay North, Kutch& Saurashtra v. Indra Balkrishna (39 I.T.R. 546):\n\nIn the result, Civil-Appeals Nos. 685 & 686 of 1970 are dis missed with no order as to oo; ts. Civil Appeals Nos. 687-690 of 1970 are allowed with costs-<>ne bearing fee. Consequently the answer given by the High Court in those four appeals is discharged and in its plac~, we answer the question, in the negative and in favour of the assessee.\n\nG.C.", "total_entities": 46, "entities": [{"text": "G. MURUGESAN & BROS", "label": "PETITIONER", "start_char": 22, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "G. MURUGESAN & BROS", "offset_not_found": false}}, {"text": "G~NMOHAN REDDY", "label": "JUDGE", "start_char": 108, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 127, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3699, "end_char": 3713, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and T. A. Ramachandran, for the appellant."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 3718, "end_char": 3736, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and T. A. Ramachandran, for the appellant."}}, {"text": "D. Karkhanis", "label": "LAWYER", "start_char": 3761, "end_char": 3773, "source": "ner", "metadata": {"in_sentence": "N, D. Karkhanis, S; P. Nayar and R, N. Sachthey, for the res- C pondents.", "canonical_name": "D. Karkhanis"}}, {"text": "P. Nayar", "label": "LAWYER", "start_char": 3778, "end_char": 3786, "source": "ner", "metadata": {"in_sentence": "N, D. Karkhanis, S; P. Nayar and R, N. Sachthey, for the res- C pondents."}}, {"text": "R, N. Sachthey", "label": "LAWYER", "start_char": 3791, "end_char": 3805, "source": "ner", "metadata": {"in_sentence": "N, D. Karkhanis, S; P. Nayar and R, N. Sachthey, for the res- C pondents."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 3878, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "delivered by\n\nHEGDE, J.\n\nThese are connected appeals by certificate."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 3980, "end_char": 4000, "source": "ner", "metadata": {"in_sentence": "They are directed against the decision of the High Court of Madras in a \\{eference under Section 66 ( 1) of the Indian Income-Tax Act, D\n\n1921. ("}}, {"text": "Section 66", "label": "PROVISION", "start_char": 4023, "end_char": 4033, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act", "label": "STATUTE", "start_char": 4053, "end_char": 4067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Simiamam Nadar", "label": "OTHER_PERSON", "start_char": 6226, "end_char": 6240, "source": "ner", "metadata": {"in_sentence": "One Simiamam Nadar\n\n(who will be hereinafter referred to as 'N adar') and his son Ganesan partitioned their family properties on December 4, 1940."}}, {"text": "Ganesan", "label": "OTHER_PERSON", "start_char": 6304, "end_char": 6311, "source": "ner", "metadata": {"in_sentence": "One Simiamam Nadar\n\n(who will be hereinafter referred to as 'N adar') and his son Ganesan partitioned their family properties on December 4, 1940."}}, {"text": "Nadar", "label": "OTHER_PERSON", "start_char": 6382, "end_char": 6387, "source": "ner", "metadata": {"in_sentence": "Thereafter, Nadar started a firm of his own on June 27, 1955."}}, {"text": "June 27, 1955", "label": "DATE", "start_char": 6417, "end_char": 6430, "source": "ner", "metadata": {"in_sentence": "Thereafter, Nadar started a firm of his own on June 27, 1955."}}, {"text": ".G. Murugesan", "label": "PETITIONER", "start_char": 6514, "end_char": 6527, "source": "ner", "metadata": {"in_sentence": "Later Nadar executed a settlement deed in favour of his four grandsons,_ namely, .G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel.", "canonical_name": "G. MURUGESAN & BROS"}}, {"text": "G. Kathiresan", "label": "OTHER_PERSON", "start_char": 6529, "end_char": 6542, "source": "ner", "metadata": {"in_sentence": "Later Nadar executed a settlement deed in favour of his four grandsons,_ namely, .G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel."}}, {"text": "G. Raja Shankar", "label": "OTHER_PERSON", "start_char": 6544, "end_char": 6559, "source": "ner", "metadata": {"in_sentence": "Later Nadar executed a settlement deed in favour of his four grandsons,_ namely, .G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel.", "canonical_name": "G.\n\nRaja Shankar"}}, {"text": "G. Vettrivel", "label": "OTHER_PERSON", "start_char": 6564, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "Later Nadar executed a settlement deed in favour of his four grandsons,_ namely, .G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel.", "canonical_name": "G. Vettrivel"}}, {"text": "G.\n\nMurugesan", "label": "PETITIONER", "start_char": 6928, "end_char": 6941, "source": "ner", "metadata": {"in_sentence": "Sometime thereafter Nadar purchased a number of shares iri Joint Stock Companies in the name of 'G.\n\nMurugesan & Brothers'.", "canonical_name": "G. MURUGESAN & BROS"}}, {"text": "G. Murugesan", "label": "PETITIONER", "start_char": 7156, "end_char": 7168, "source": "ner", "metadata": {"in_sentence": "The share applic:; ations (lddressed to the companies for the transfer of the shares from the prior owners , to the name of G. Murugesan and Brothers were s.igned by Padamavathy Ammal, the mother of donees as their guardian.", "canonical_name": "G. MURUGESAN & BROS"}}, {"text": "Padamavathy Ammal", "label": "OTHER_PERSON", "start_char": 7198, "end_char": 7215, "source": "ner", "metadata": {"in_sentence": "The share applic:; ations (lddressed to the companies for the transfer of the shares from the prior owners , to the name of G. Murugesan and Brothers were s.igned by Padamavathy Ammal, the mother of donees as their guardian."}}, {"text": "Murugesan", "label": "OTHER_PERSON", "start_char": 7333, "end_char": 7342, "source": "ner", "metadata": {"in_sentence": "Murugesan became a major on March 3, 1955."}}, {"text": "March 3, 1955", "label": "DATE", "start_char": 7361, "end_char": 7374, "source": "ner", "metadata": {"in_sentence": "Murugesan became a major on March 3, 1955."}}, {"text": "15th December,\n\n1962", "label": "DATE", "start_char": 7545, "end_char": 7565, "source": "ner", "metadata": {"in_sentence": "The youngest of the brothers became a major on 15th December,\n\n1962."}}, {"text": "G. Murugesan & Brothers", "label": "ORG", "start_char": 7674, "end_char": 7697, "source": "ner", "metadata": {"in_sentence": "The income from the house property and the dividend income from shares were credited to an account called \"G. Murugesan & Brothers\" in the books of Nadar's Firm."}}, {"text": "G.\n\nRaja Shankar", "label": "OTHER_PERSON", "start_char": 7806, "end_char": 7822, "source": "ner", "metadata": {"in_sentence": "there are separate accounts for G. Murugesan; G. Kathiresan, G.\n\nRaja Shankar and G. Vetrivel.", "canonical_name": "G.\n\nRaja Shankar"}}, {"text": "G. Vetrivel", "label": "OTHER_PERSON", "start_char": 7827, "end_char": 7838, "source": "ner", "metadata": {"in_sentence": "there are separate accounts for G. Murugesan; G. Kathiresan, G.\n\nRaja Shankar and G. Vetrivel.", "canonical_name": "G. Vettrivel"}}, {"text": "3rd February 1958", "label": "DATE", "start_char": 8172, "end_char": 8189, "source": "ner", "metadata": {"in_sentence": "There was a partition between Ganesan and his sons on 3rd February 1958, but that does not include the house property or the shares g, ifted by Nadar to his grandsons."}}, {"text": "Padmavathy", "label": "OTHER_PERSON", "start_char": 9274, "end_char": 9284, "source": "ner", "metadata": {"in_sentence": "The High Court was of the opinion that because of the fact that the shares were purchased jointly in the name of G. Murugesan & Brothers, the transfer applications were filed by Padmavathy acting as guardian of all the assessees, and further, after Murugesan became major, he collected the dividends jointly on behalf of the assessees, the assessees should be considered to have acted as an 'Association of Persons'."}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 9560, "end_char": 9568, "source": "ner", "metadata": {"in_sentence": "That conclusion is challenged before us by Mr. Setalvad, appearing on behalf of the assessees."}}, {"text": "Karkhanis", "label": "LAWYER", "start_char": 9993, "end_char": 10002, "source": "ner", "metadata": {"in_sentence": "On the other hand, it is contended on behalf of the Revenue by Mr.\n\nKarkhanis that the facts proved in this case clearly establish that the assessee functioned as an 'Association of Persons'.", "canonical_name": "D. Karkhanis"}}, {"text": "B. N. Elias Derbyshire", "label": "JUDGE", "start_char": 10683, "end_char": 10705, "source": "ner", "metadata": {"in_sentence": "In re:\n\nB. N. Elias Derbyshire, C.J., rightly pointed out that the word G \"associate\" means, according to the Oxford Dictionary, \"to joiR in common purpose, or to join in an action.", "canonical_name": "B. N. Elias Derbyshire"}}, {"text": "Beaumont", "label": "JUDGE", "start_char": 11172, "end_char": 11180, "source": "ner", "metadata": {"in_sentence": "This was the view expressed by Beaumont, C.J., in Com-·\n\nmissior of Income-tax v. JAbhmdas Devidas, at page 589\n\n(1937) 5 I.T.R., an(!"}}, {"text": "B. N. Elias", "label": "JUDGE", "start_char": 11372, "end_char": 11383, "source": "ner", "metadata": {"in_sentence": "Harishchandrli\n\nG, MURUGESAN v. C.I.T. (Hegde, J.) 519\n\nPita/e. In re : B. N. Elias, Costello; J., put the test in more forceful language.", "canonical_name": "B. N. Elias Derbyshire"}}, {"text": "Costello", "label": "JUDGE", "start_char": 11385, "end_char": 11393, "source": "ner", "metadata": {"in_sentence": "Harishchandrli\n\nG, MURUGESAN v. C.I.T. (Hegde, J.) 519\n\nPita/e. In re : B. N. Elias, Costello; J., put the test in more forceful language."}}, {"text": "section 3", "label": "PROVISION", "start_char": 12074, "end_char": 12083, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12091, "end_char": 12105, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 12523, "end_char": 12532, "source": "regex", "metadata": {"statute": null}}, {"text": "s2", "label": "PROVISION", "start_char": 14081, "end_char": 14083, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 15943, "end_char": 15960, "source": "ner", "metadata": {"in_sentence": "Mr. Karkhanis in support of the contention of Revenue relied on the decision of the Bombay High Court iD. S. C. Gambatta v. Commissioner of Income-tax, Bombay (14 I.T.R. 748)."}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 16129, "end_char": 16140, "source": "regex", "metadata": {"statute": null}}, {"text": "MURUGESAN V. C.l.T, (Hegde, J.) 521\n\nCourt", "label": "JUDGE", "start_char": 16663, "end_char": 16705, "source": "ner", "metadata": {"in_sentence": "On the B other hand the contention of the assessee was that they were an •Ass<><:iation of Persons' and that contention was accepted by the\n\nG, MURUGESAN V. C.l."}}, {"text": "K.arkhanis", "label": "LAWYER", "start_char": 16831, "end_char": 16841, "source": "ner", "metadata": {"in_sentence": "We are also not able to agr~ with Mr.\n\nK.arkhanis that the decision of this Court inN. V. Shanmugham &:\n\nCo. v. Commissioner of Income-Tax, Madras (81 I.T.R. 310)\n\nlends any support for the contention of the Revenue.", "canonical_name": "D. Karkhanis"}}, {"text": "inN. V. Shanmugham", "label": "OTHER_PERSON", "start_char": 16874, "end_char": 16892, "source": "ner", "metadata": {"in_sentence": "We are also not able to agr~ with Mr.\n\nK.arkhanis that the decision of this Court inN. V. Shanmugham &:\n\nCo. v. Commissioner of Income-Tax, Madras (81 I.T.R. 310)\n\nlends any support for the contention of the Revenue."}}]}
{"document_id": "1973_3_522_527_EN", "year": 1973, "text": "C.I.T. BIHAR & ORISSA, PATNA\n\nMAHARAJ KUMAR KAML SINGH\n\nFebruary 13, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nIndian Income-Tax Act, 1922, ss. 16(3)(a) (a)(iii), 9(4)(a)-Hol4er of impartible estate, transferring properties of estate to his wife-fnc()me\n\nfrom properties whether liable to be included in i11come of assessee- Fiction created by s. 9 ( 4 )(a) re11ders assessee liable under s. 16( 3) (a)(iii).\n\nThe assessee-respondent is the bolder of an impartible estate. By an iodonture dated 23rd November, 1963, he granted to his wife two premises fer life by way of supplementary maintenance grant. If was a direct transfer which was admittedly not effected for any consideration or in connec- . ticiQ with the agreement to live apart.\n\nDuring the assessment yean 1957-58 to 196G-61, the income from these house properties was included in the total income of the assessee under section 16(3) (a) (iii) o'f the Act At the instance of the assessee the matter was referred to the High Court.\n\nTwo questions fell for consideration before the High Court, namely, (i) whether the Tribunal was justified in holding that the provisions of s. 16(3) (1) (iii) applied to the income arising from the property; and\n\n(ii) whether the Tribunal was right in holding that the income under the said provisions was to be included in the total income for the purpose oi computing the net annual value of the residential house. under the first proviso of s. 9(2). The High Court answered the first of the two questions in favour of the assessee and. therefore, did nc; t think it necessary to go into the other question.. On appeal by certificate to this Court, the material question was whether thl! income from the house properties transferred by the assessee was liable to be included the income of the assessee.\n\nHELD : (i) The incident of impartible estate have been well settled by the decisions of the Courts i11 this country as well. as by the decisions of the judicial committee.\n\nThe holder of an impartible estate has uncontrolled power of enjoyment and disposal of the impartible estate as well as\n\nthe income arising therefrom; yet the estate belongs to the Hindu joint family of which the holuer is a member.\n\nSubject to any custom to the contrary, on the death of the holder of an impartible estate, the estate devolves by survivorship.\n\n[524G-H]\n\nBaijnath Prasad Singh and Ors. v. Tej Bali, L.R. 48 I.A. 195, Shiba Prcsad Singh v. Rani Prayad Kumari Devi & Ors., L.R. 59 I. A. 331 and Commissioner of /ncome-ll/Jc, Punjab. North-West Frontier and Delhi Provinces, Lahore v. Dewan Bahadur Dewan Krishna Kishore, Rrds, Lahore. 68 I.A. 155, referred to.\n\nCii) After s. 9 was amended by incorporating s. 9( 4). the income of house property owned by the ho1der of an impartible estate has to be considered as his individual income.\n\nFrom this it follows that had the assessee not transferred the ?remises in question in favour of his wife, the income from those premises would have been considered as his individual income under section 9.\n\nThe contention that s. 9(4) (a)' raises a legal fiction which is limited for the purpose of s. 9 is fallacious. Section deals with onlv one head of income. Section 9(4)(a) speaks for th~ purpose of this Secticn'' whkh really mea:ns for the purpose of deter-\n\nC.I.T. v. M. K. K. SINGH (Hegde, }.) 523\n\nmining tho! taxable income of the assessee.\n\nAn assessee is not epara1el_y taxed under each Jlead of income. Hence when a source of lDCOmc 11 transferred from assessee to his wife excepting for the two purposes men• tioned in s. 16(3) (a) (ii), income from that purpose has to be considered as the income of the assessee because of asset of the assessee stand~ trans\n\nJerred to his wife.\n\nSuch. a conclusion docs not amount to cxtendmg the fiction cr.:ated under s. 9 beyond the purpose for which it is created. It\n\nmerely gives etl\"ect tc that fiction. It is true that a legal fiction may not he extended beyond the purpose for which it is created but that does not mean that the Court should not give effect to that fiction. [S26H to\n\n527D] Section 27(ii) of the Income-tax Act, 1961 which has taken place of s. 9(4) of the Act makes explicit that was implicit in the provision, es it originally stood.\n\n[527D-E)\n\n(iii) lt follows as necessary corollary that the annual value of the\n\nasessee's residential house has to be computed at 10% of the total income of the assessee which i.ncome includes the income from the house prop_erthis transferred to his wife as required by the first proviso to s. 9(2).\n\n[527~G]\n\nCiVIL APPELLATE JURISDrcnoN : Civil Appeals Nos. 297 to 300 of 1970.\n\nAppeal by Certificate from the Judgment and order dated August 9, 1966 of the Pa'tna High Court in Misc. Judicial Cases Nos. 480 to 483 of 1964.\n\nV. S. Desai, I. R. Murthy, S. P. Nayar and R. N. Sachthey, for the appellant.\n\nN. D. Karkhanis, Santokh Singh a.nd U. P. Singh, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHBGDE, J. These are appeals by certificate. They arise from a common judgment delivered by the High Court of Patna.\n\nThe assessee respondent is the holder of an impartible estate.\n\nBy an indenture dated November 23, 1950, he granted to his wife two premises at Camac Street, Calcutta for life by way of. supplementary Khorposh (maintenance) grant. During the assessment years with which we .are concerned viz. 1957-58 to 1960-61 the\n\nmcot.1e from those house properties was included in the totai in- G come of the assessee under s. 16(3) (a) (iii) of the Indian Jncomotax .Act, 1922 (to be hereinafter referred to as the Act). The assessee challenged the validity of that inclusion firstly on the ground that s. 16(3)(a) (iii) of the Act is ultra vires Art. 14 of the Constitution and secondly on the ground that the income m\n\nqestion .cannot be consded a5 his income for the purpose of the H said section. These objections were ove~Ied by the authorities under the Act. Thereafter at the instance-'of the asseuee the following three questions were referred to the High Court of Pama\n\nunde:r s. 661 ) of the Act. · 18-L796SupCl/73\n\n5~4 Sul'REME COURT REPORTS [1973] 3 s.c.a.\n\n\" ( l ) Whether the provisions of s. 16 ( 3) (a) (iii) of the Indian Income-tax Act, 1922 are ultra vires the Constitution of India ?\n\n( 2) Whether in the facts and circumstances of the case the Tribunal was justified iri holding that the provisions of section 16(3)(a)(iii) applied to the income arising from a property transferred by the holder of an impartible estate to his wife for her maintenance ?\n\n(3) Whether in the facts and circumstances the Triw\n\nbunal was right in holding that the income under section 16(3) (a) (Hi) was to be included in the total income for the purpose of computing the net annual value of the residential house at 10%\n\nof the total income under the 1st Proviso to section 9 ( 2) ?\"\n\nBefore the High Court CoWlSel for the assessee did not press for any answer on the first question .evidently in view of the deci sion of this Court in Balaji v. lncomewTax Officer, Speciallnvestiw gat ion Circle, A kola and ors. (1) The second question was answered in favour of the assessee and in view of the decision of the High Court on that question, the High Court did not think it necessary\n\nto go into the third question. The answer to the third question\n\nueccs.arily depends on the answer to the second question. If we come to the conclusion that the second question was not corresctly answered then it follows that the income from the properties in question has to be included in the total income of the assessee and the income frolll! the residential house of the assessee will have to be computed at 10% of his total income under the 1st proviso to s. 9(2) of the Act. Hence the material question to be decided is whether the income from the properties in Calcutta is liable to be included in the income of the assessee. ·\n\nThe assessee is assessed as an individual. As mentioned earw iiel', he is the holder of an impartible estate. The incidenis of im~ -partible estate have been well settled by the decisions of courts in this country as well as by the decisions of the Judicial Committee.\n\nThe holder of an impartible estate has uncontrolled power Of enw joyment and disposal over the impartible estate as well as over the income arising theref. '; but, yet the estate belongs to the Hindu joint fami1y of which the lanlder i& a member. Subject to any cusw tom to the contrary, ori the • 1\"!-ath of the holder of an impartible estate, the estate devolves by survivorshiee Baljnath Pra.rhad Singh and ors. v. Tej Bali Sinh(2) ailCS: Shlba Prasad Singh v.\n\n(1) 43, I.T.R. 393.\n\n(2) L.R.. 48 I A. 195.\n\n. H\n\nC.l.!. V. M. K. K. SINGH (Hcglie, J.) 525\n\nRani Prayad Kumari Debi apd ors. ( ').\n\nIn Commissioner of Income-tax, Punjab, North-West Frontier and Delhi Provinces, Lahore v.\n\nDewan Bahadur Dewan Krishna Kishore, Rais, Lahore ( ~), the Judicial Committee held that the income of a ouse\n\npropeny which is a part ot an impartible estate cannot be considered as the individual income of an ru.sessee under s. 9 of the Act as it stood then. Therein the Judicial Committee observed :\n\n\"Since the decision of the Board in Baijnath Prashad Singh v. Tej Bali Singh (supra), it has been settled law that property, though impartible, may be t~ ancestral property of a joint family, and that in such cases the successor falls to be de, signated according to the ordinary rule of Mitakshra. The concluding words of the judgment, delivered on behalf of the Board by Lord Dunedin , in Baijnath's case (supra) are to that effect, and in that case, as welt as n Shiba Prasad Singh v. Prayag Kumari Devi (supra) which followed jt, \"the keynote of the whole position\" is-not that property which is not joint property devolves by virtue of custom as though it had been joint-but that the gep.erallaw regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom; hence the estate retains the character of join family property and devolves by the general law upon that person who, being in fact and in law joint in respect of the estate, is also the senior member in the senior line.\"\n\nOn tlie basis of the above reasoning their Lordships held \"for the purpose of sect.ion 9 of the Act\" the income in question is not the individual income of the holder of the estate. After that deci~ sion was endered s. 9 of the Act was amended by incorporating 5•\n\n9 ( 4) whtch reads :\n\n\"For the purpose of this section-\n\n( a) the holder of at1 impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. (b) X X\n\nX\".\n\nHence, it is clear that after s. 9 was amended, the income of house property owned by a holder of an impartible estable has to be constdered as his individual income. From this it follows that had _the _assessee not transferred the premises in question in favour of hts wrfe, the income from those premises would have been considered as his individual income under s. 9. Now we have to see\n\nwhethe~ because of the transfer of the premises in favour of hii • 01 L.R. 591 .An---- (21 liS I.A. p. 155. 19-L796sup.c. 1.173\n\n5~6\n\nSUPREME COURT REPORTS ['1973] 3 s.c.R.\n\nwife, the said income cannot be considered as the income of the assessee under s. 16(3)(a)(iii). Section 16(3)(a)(iii) reads:\n\n\"In computing the total income of any individual for the purpose of assessment, there shaH be included- ( a) so much of the income of a wife or minor child of such individual as arises directly or indirectly-\n\n(i) (ii) (iii)\n\nX X X\n\nX X.\n\nX from assets transferred directly or indirectly to the wife by the husband otherwise than for adt:~ quate consideration or in connection with dll\n\nagreement to live apart; or (iv) x X\n\nX (b) X\n\nThere is no dispute that the transfe-r with which we are concerned is a direct transfer. Further it is dmitted that the transfer in question was not effected for any consideration adequate or otherwise, nor was it effected in connection with an agreement to live\n\napart. But th_e assessee's contention was, which l:Ontention was accepted by the High Court that s. 9 ( 4) (a) on! y deems the income of a house property included in an impartible estate as the indivi- , d\\ml income of the holder and that only for the purpose of s. 9\n\nand not for any other purpose. In other wprds; it was urged that section raises a legal fiction and that legal fi'ction is limited for the purpose of s. 9. It was further urged that a legal fiction cannot be extended beyond the purpose for it was created. Counsel for the\n\nassesse:e urged that the fiction incorporated ¥t s. 9 ( 4) (a) can be taken .into consideration only for the purpose of s. 9 and not for the purpose of s. 16 ( 3) .\n\nThis contention appears to us to be fallacious.\n\nSection 6 of the Act sets out the various heads of income, profits and gains chargeable to income-tax. They are (i) salaries;\n\n(ii) interest on securities; (iii) Income from property; (iv) Profits and Gains of business, profession or vocation~ (v) Income from othpr sources (vi) Capital gains. Section 3 read with s. 4 brings to tax the total income, profits and gains of an assessee from whatever source it might have been received or accrued. The total income is defined in s. 2 ( xv) as meaning total amount of income, profits and gains referred to in sub-s. ( 1 ) of s. 4 computed in the manner laid down in the Act.\n\nSection 9 deals with only one head of income.\n\nPrior 'l:o the .- transfer by the assessee, he, in law would have ben. cons_idred as . th~ owner of those premises for purposes of. ascertammg hts mcome\n\nc.I.T. V. M. K. K. SINGH (/legdc, J.) 527\n\n111 house proper!Y nn? that irycome would have been taken into\n\n.A f~ount in comptmg his total mcomc. In other words, in ascer-\n\n~. nu the total mcome of the assessee for the purpose of assesstatnlt f11at income also would have entered into the calculatio\n\n\":ce when s. 9 ( 4 )(a) speaks \"for the .Prpose of this sectio~; it really means for the purpose of determmmg the _ _taxable-income of the assessee. It must be rcmemered that an assessee is not\n\nB. separately t?xed under each head of mcome. Hence when a source of income Js transferrc.d by t_he assessee to his wife, exceptino for the two purposes men~1oned m s. I?(3)(a)(iii), income from\"tbat source has to be considered as the mcome of the assessee because . an asset of the assessee stands transferred to his wife. Such a con- , c clusion docs not amount to extending the fiction created under s~\n\n9 beyond he purp?sc for which it is creted. It merely gives effect to that fict1on. It IS true that a legal fict1011 should not be extended beyond the purpose for which it is created; but that docs not mean that the court should not give effect to t11at fiction. Section 27(ii) of the Income-tax Act. 1961 which-has taken o the place of s. 9 ( 4) of the Act docs not begin by saying \"for the\n\npurpose of this section\". On the other hand, it says that \"the holder of an impartible estate shalt be deemed to be the individual owner of all the properties comprised in the estate... It was contended on behalf of the a.-; sessee that this is a change in the Jaw and on that basis we were asked to accept the assessee's construe- [ tionofs. 9(4)(a). Weare unable toacccptthiscontention.- We\n\ndo not think t!:_lat there is any change in the law. Section 27 (ii) of the Income-tax Act, 1961 makes explicit what was implicit in the provbion as it originally stood.\n\nJn view of our conclusion that the income of the house property !n question should be in~Judcd in the total income of the assessee, f 1t follows as a nccessar;' corol!nry that the annual value of the\n\nssessce's residential house has to be computeu at 10% of the total\n\nncomc to the assessee which income as alreaJv held included.the mcome from the house nroncrtics transfarcd to his wife as reqUired by the 1st proviso to s. 9(2). c For the reasons mentioned above, thcs'! pFe:t'~ ; r~. allo\"e1; tltc answer l!ivcn by the High Court to quest1on No. - .'s vacatt; d and in its nlace we amwcr that qucstilm in the atl1rn; attv.e and 1.n favour of the Revcnw!. Our anwcr to the third qul'~~~-:n\n\n1~.~ 1\n\n1 0 ; n 11h1e affirmative and in favour o~ the .Revenue. Th~ as:>H~:h ori. 1 c <:ots of the Revenue both 1n this Court and 10 t e \" .\n\ns.n.w\n\n.. -- ·. _.,_.....-:: .. - :'\n\n. ,·", "total_entities": 79, "entities": [{"text": "I.T. BIHAR & ORISSA, PATNA", "label": "PETITIONER", "start_char": 2, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "C.I.T. BIHAR & ORISSA, PATNA", "offset_not_found": false}}, {"text": "MAHARAJ KUMAR KAML SINGH", "label": "RESPONDENT", "start_char": 30, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "MAHARAJ KUMAR KAML SINGH", "offset_not_found": false}}, {"text": "February 13, 1973", "label": "DATE", "start_char": 56, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "C.I.T. BIHAR & ORISSA, PATNA\n\nMAHARAJ KUMAR KAML SINGH\n\nFebruary 13, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 76, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "K.S. 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KHANNA, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Indian Income-Tax Act, 1922", "label": "STATUTE", "start_char": 133, "end_char": 160, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 16(3)(a)", "label": "PROVISION", "start_char": 162, "end_char": 174, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-Tax Act, 1922", "statute": "Indian Income-Tax Act, 1922"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 366, "end_char": 370, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-Tax Act, 1922", "statute": "Indian Income-Tax Act, 1922"}}, {"text": "s. 16( 3)", "label": "PROVISION", "start_char": 411, "end_char": 420, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-Tax Act, 1922", "statute": "Indian Income-Tax Act, 1922"}}, {"text": "section 16(3)", "label": "PROVISION", "start_char": 905, "end_char": 918, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-Tax Act, 1922", "statute": "Indian Income-Tax Act, 1922"}}, {"text": "s. 16(3)", "label": "PROVISION", "start_char": 1158, "end_char": 1166, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-Tax Act, 1922", "statute": "Indian Income-Tax Act, 1922"}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 1462, "end_char": 1469, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 48 I.A. 195", "label": "CASE_CITATION", "start_char": 2414, "end_char": 2430, "source": "regex", "metadata": {}}, {"text": "L.R. 59 I. A. 331", "label": "CASE_CITATION", "start_char": 2486, "end_char": 2503, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2686, "end_char": 2690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9( 4)", "label": "PROVISION", "start_char": 2720, "end_char": 2728, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 3047, "end_char": 3056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(4)", "label": "PROVISION", "start_char": 3079, "end_char": 3086, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 3151, "end_char": 3155, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(4)(a)", "label": "PROVISION", "start_char": 3215, "end_char": 3230, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(3)", "label": "PROVISION", "start_char": 3586, "end_char": 3594, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 3823, "end_char": 3827, "source": "regex", "metadata": {"statute": null}}, {"text": "S26H to\n\n527D", "label": "PROVISION", "start_char": 4088, "end_char": 4101, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27(ii)", "label": "PROVISION", "start_char": 4103, "end_char": 4117, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 4125, "end_char": 4145, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9(4)", "label": "PROVISION", "start_char": 4171, "end_char": 4178, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 4557, "end_char": 4564, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "CiVIL APPELLATE JURISDrcnoN", "label": "PETITIONER", "start_char": 4576, "end_char": 4603, "source": "ner", "metadata": {"in_sentence": "[527~G]\n\nCiVIL APPELLATE JURISDrcnoN : Civil Appeals Nos."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4792, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, I. R. Murthy, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "I. R. Murthy", "label": "LAWYER", "start_char": 4805, "end_char": 4817, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, I. R. Murthy, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4819, "end_char": 4830, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, I. R. Murthy, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4835, "end_char": 4849, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, I. R. Murthy, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 4871, "end_char": 4886, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Santokh Singh a.nd U. P. Singh, for the respondent."}}, {"text": "Santokh Singh", "label": "LAWYER", "start_char": 4888, "end_char": 4901, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Santokh Singh a.nd U. P. Singh, for the respondent."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 4907, "end_char": 4918, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Santokh Singh a.nd U. P. Singh, for the respondent."}}, {"text": "HBGDE", "label": "JUDGE", "start_char": 4985, "end_char": 4990, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHBGDE, J. These are appeals by certificate."}}, {"text": "Calcutta", "label": "GPE", "start_char": 5260, "end_char": 5268, "source": "ner", "metadata": {"in_sentence": "By an indenture dated November 23, 1950, he granted to his wife two premises at Camac Street, Calcutta for life by way of."}}, {"text": "s. 16(3)", "label": "PROVISION", "start_char": 5514, "end_char": 5522, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(3)(a)", "label": "PROVISION", "start_char": 5694, "end_char": 5705, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 5738, "end_char": 5745, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "High Court of Pama", "label": "COURT", "start_char": 6050, "end_char": 6068, "source": "ner", "metadata": {"in_sentence": "Thereafter at the instance-'of the asseuee the following three questions were referred to the High Court of Pama\n\nunde:r s. 661 ) of the Act. ·"}}, {"text": "s. 661", "label": "PROVISION", "start_char": 6077, "end_char": 6083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 6195, "end_char": 6200, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6223, "end_char": 6250, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 6271, "end_char": 6292, "source": "regex", "metadata": {}}, {"text": "section 16(3)(a)(iii)", "label": "PROVISION", "start_char": 6414, "end_char": 6435, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 16(3)", "label": "PROVISION", "start_char": 6669, "end_char": 6682, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 9", "label": "PROVISION", "start_char": 6859, "end_char": 6868, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 7739, "end_char": 7746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 9100, "end_char": 9104, "source": "regex", "metadata": {"statute": null}}, {"text": "Mitakshra", "label": "OTHER_PERSON", "start_char": 9465, "end_char": 9474, "source": "ner", "metadata": {"in_sentence": "Therein the Judicial Committee observed :\n\n\"Since the decision of the Board in Baijnath Prashad Singh v. Tej Bali Singh (supra), it has been settled law that property, though impartible, may be t~ ancestral property of a joint family, and that in such cases the successor falls to be de, signated according to the ordinary rule of Mitakshra."}}, {"text": "Dunedin", "label": "OTHER_PERSON", "start_char": 9555, "end_char": 9562, "source": "ner", "metadata": {"in_sentence": "The concluding words of the judgment, delivered on behalf of the Board by Lord Dunedin , in Baijnath's case (supra) are to that effect, and in that case, as welt as n Shiba Prasad Singh v. Prayag Kumari Devi (supra) which followed jt, \"the keynote of the whole position\" is-not that property which is not joint property devolves by virtue of custom as though it had been joint-but that the gep.erallaw regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom; hence the estate retains the character of join family property and devolves by the general law upon that person who, being in fact and in law joint in respect of the estate, is also the senior member in the senior line.\""}}, {"text": "Baijnath", "label": "OTHER_PERSON", "start_char": 9568, "end_char": 9576, "source": "ner", "metadata": {"in_sentence": "The concluding words of the judgment, delivered on behalf of the Board by Lord Dunedin , in Baijnath's case (supra) are to that effect, and in that case, as welt as n Shiba Prasad Singh v. Prayag Kumari Devi (supra) which followed jt, \"the keynote of the whole position\" is-not that property which is not joint property devolves by virtue of custom as though it had been joint-but that the gep.erallaw regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom; hence the estate retains the character of join family property and devolves by the general law upon that person who, being in fact and in law joint in respect of the estate, is also the senior member in the senior line.\""}}, {"text": "s. 9", "label": "PROVISION", "start_char": 10481, "end_char": 10485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 10762, "end_char": 10766, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 11097, "end_char": 11101, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(3)(a)(iii)", "label": "PROVISION", "start_char": 11376, "end_char": 11392, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(3)(a)(iii)", "label": "PROVISION", "start_char": 11394, "end_char": 11415, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12219, "end_char": 12223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12385, "end_char": 12389, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12541, "end_char": 12545, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12713, "end_char": 12717, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12784, "end_char": 12788, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 12816, "end_char": 12821, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 12879, "end_char": 12888, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13173, "end_char": 13182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13193, "end_char": 13197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 13355, "end_char": 13359, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13450, "end_char": 13454, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 13501, "end_char": 13510, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. K. K. SINGH", "label": "JUDGE", "start_char": 13709, "end_char": 13726, "source": "ner", "metadata": {"in_sentence": "ascertammg hts mcome\n\nc.I.T. V. M. K. K. SINGH (/legdc, J.) 527\n\n111 house proper!Y nn?"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14012, "end_char": 14016, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27(ii)", "label": "PROVISION", "start_char": 14867, "end_char": 14881, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 14889, "end_char": 14903, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14941, "end_char": 14945, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 15444, "end_char": 15454, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 15467, "end_char": 15487, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 15984, "end_char": 15991, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}]}
{"document_id": "1973_3_528_532_EN", "year": 1973, "text": "RAJA JAGDISH PRATAP SAHi\n\nSTATE OF UTTAR PRADESH\n\nFebruary 13, 1973\n\n[K. S. HEGDE, P. )AGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nU.P. Agricultural Income-tax Act (3 of 1948), s. 32-Suit for recovery of tax assessed-Maintainability.\n\nThe appellant was assessed to Agricultural income-tax under the U.P.\n\nAgricultural Income-tax Act, 1948, and was directed to pay it in four instalments. The appellant defaulted and, when summary proceedi:ogs to recover the amounts as arrears of land revenue were taken under s. 32 of the Act, it was found that two of the instalments had become time barred under s. 32(2). In a suit by the respondent State for recovery of those amounts, the appellant contended that the only remedy open to the respondent was under s. 32 and that the suit was not maintainable. The trial court dismissed the suit, but the High Court in appeal decreed the suit.\n\nDismissing the appeal to this Court,\n\nHELD : Where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law. [5320]\n\nOnce a notice of den1and is served on the assessee for payment of tax due under the Act, and the assessee makes a default _after the date for payment specified therein has expired, a debt is created in favour of the State; and the State has the right to recover it by any of the modes open to it under the general law, unless, as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law.\n\nNo such prohibition is enacted in s. 32 of the Act. [531C-EJ\n\nManlckam Chetiar v. Income-tax Officer. Madurai, [1938] VI l.T.R. 180, lnder Chand v. Secretary of State, A.LR. [1942] Patna 81 and Cha ganti Raghava Reddy v. State of Andhra Pradesh, A.l.R. [1959] A.P. 631 applied.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1192 of 1970.\n\nAppeal by Certifica1e from the Judgment and order dated May 20, 1966 of the Allahabad High Court in First Appeal No. 161 Of 1960.\n\nYogeshwar Prasad, Hajii Iqbal Ahmed, S. K. Bagga a.nd S.\n\nBagga, for the appellant.\n\nS. C. Manchanda and 0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nJAGANMOHAN REDDY, J.\n\nThe State of Uttar Pradesh filed a suit against the appellant for the recovery of a sum of Rs. 26,548-62 being two instalments of the Agricultural Income-tax due from him\n\nJ. P. SAHi v. U.P. STATE (Jaganmohan Reddy, J.) 529\n\nunder the U.P. Agricultural Income-tax Act (III of 1948) hereinafter referred to as 'the Act'). The appellant was assessed to Agricultural Income-tax for the year 1359 Fasli, in a sum of Rs. 53,097-25 and was directed to pay the same in four instalments of Rs. 13,274-31 each payable on December 9, 1952, Februry 9, 1953, April 9, 1953 and June 9, 1953, and accordingly the first instalment was recovered from him with penalty. Notice to pay the second and third instalments by April 21,1953 was served on him but this amount was not paid. Instead, the appellant filed a Writ Petition in the Allahabad High Court and obtained a stay order which was subsequently vacated. Thereafter the State sought to recover the amout but the appellant filed a revision challenging the proceedings for recovery on the ground that they had become time-barred under s. 32(2) of the Act. The Board accepted the contention and held that no proceedings could be commenced for the recovery of third and fourth instalments which fell due on April 9, 1953 and June 9, 1953, but in respect cif the proceedings for the recovery of the second instalment it was held that those proceedings could be continued. An application to the Board for reference to the High Court was dismissed. The appellant then paid the second instalment.\n\nIn view of the decision of the Board, the State of Uttar Pradesh filed a suit for the recovery of the amounts aforesaid in which the\n\nappellant pleaded that the only remedy open to the State was that permitted under s. 32(2) of the Act, and that no regular suit was maintainable. This plea was sustained, and the suit was dismissed as not maintainable. The High Court, however, in an appeal reversed the judgment of the Trial Court and decreed the suit.\n\nAgainst that judgment, this appeal is by certificate.\n\nIt is contended before us that the only mode of recovery of arrears of tax or penalty due under the Act is under s. 32, and the State cannot recover any such amount by any other mode such as by s. suit. Section 32 is as follows :\n\n\"32. Recovery of penalties--(!) The Collector may, on the motion of assessing authority, recover any sum imposed by way of penalty under the provisions of section 17 or section 31, or, where an assessee is in default, the amount assessed as agricultural income-tax as if it were an arrear of land revenue. '\n\n(2) No proceedings for the recovery of any sum\n\npyale under this Act shall be commenced after the expuauon of one year from the date on which the last instal!llet fixect under section 30 falls due or after the exp1rat10n f one year from the date on which. any appeal relatmg to such sum has been disposed of,\"\n\nBefore we deal' with the n1ain contention, it may be stated that once a notice of demand is served on the assessee for payment of tax duel under the Act, and the assessee makes a default after the date for payment specified therein has expired, a debt is createa in favour of the State. This debt the State can recover by any of the modes open to it under the general Jaw. This is also the position under the Indian Income-tax Act, but it is contended that the analogous provisions of sub-s. (7) of s. 46 of the Indian Income-tax Act, 1922, or the corresponding provisions of s. 232 of the Incometax Act of 1961 cannot be relied upon for interpreting s. 32 of the Act inasmuch as there are special provisions in these Acts which enab'Ie the Revenue to file a suit for the recovery of arrears of tax due from the assessee. It is true thats. 232 of the Income-tax Act '05 1961 provides that the modes of recovery under that Act are not exhaustive, but this clarification, which it is, does not imply tliat it is only bv virtue of a soecific provision that the legislature has.conferred this right uoon the Revenue where it did not earlier possess. nder s. 46(2) of the Act of 1922, the Income-tax Officer may forward to the Collector a certificate under his signature soecifying the amount of arrears due from an assessee. and the Callee-·\n\ntor. on receipt of such certificate, shall oroceed to recover from such assessee the amount soecified therein as if it were an arrear of land revenue. Sub-section (7) of the said section orescri6~ a period of limitation of one year from the last day of the Financial year in which anv demand is. made under the Act, and thereafter no proceedings for the recovery can be taken. This section was amended bv s. 21 of the Indian Income-tax (Amendment) Act, 1953, by which the following exolanation was added : . . . \"Explanation.-A proceeding for the recovery of any sum shall be deemed to have commenced within the meaning of this section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive, nor affect in' any way any other law for the time being in force relating to the recovery of debts due to Govern- . ment. and it shall be lawful for the Income-tax Officer. if\n\nfor any special reasons to be recorded he so thinks fit, to nave recourse to .'.!ny such mode of recovery notwith-· standing that the tax due is being recovered from an assessee by any other mode.\"\n\nIt is manifest that this eXplanation does not in any way confer a right on the Revenue to recover arrears of tax by any.mode ()!her 11 than those provided under that Act. That right which the State or thd Revenue has for reeovering arrears of tait which i~ a del; it due\n\n'.,..\n\nJ. P. SAHi v. U.P. STATE (Jaganmoha11 Reddy, J.) 5:Jl\n\nto it is a general right conferred on it under the law either by a suu 'or Dy some oma memod open to 1t.\n\nSection 32, thougn H ctoes not nave an Expianauon analogous to s. 4o nonetneless uoes\n\nnot preclude either spec1ticatly or by necessary impllcauon a nghr to recover the arrears o! tax Clue by a suit. The melhoct prescnbecJ m tn1s section is one o! the modes of recovery which 1s a summary\n\nrem~Jy. 1t is, however, open to the State to adopt any method availaDle to it for the recovery of tax in the same way as it would be open to it to .recover ordinary debt due to it. It can institute a suit and obtain a decree with costs against the assessee or other persons liable to pay. It could also probably, without obtammg a decree or attachment, apply to a Court for ll1e payment of dues 1f there are funds lying to' •me credit of the assessee in the Court,\n\nur it may perhaJ?.s demand payment in the hands of the receiver appointed in respect of any property pf the assessee, if due nonce to all the parties interested in the funds is given. On these aspects, however, we do not propose to express any views. As already observed, after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. It is well established that once a debt is creati; d, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only specific mode to the exclusion of any other is presc.tiQed by the Jaw.\n\nNo such prohibition is enacted in s. 32 of the Act.\n\nEven prior to the amendment of sub-s. ( 7) of s. 46 of the 1922 Act, several High Courts in this country had taken this view. In Manickam Chettier v. Income-tax Officer, Madurai('), a Full Bench of the Madras High Court was dealing with the right of the Crown to obtain payment of arrears of tax due from the assessees properties sold in execution of a. decree where the question were, firstly, whether the Government was entitled to claim a priority, and secondly, whether, as. a matter of procedure, the petition by the Income-tax Officer to the Civil Court for payment to him from the amounts to the credit of the assessee, was sustainable. It was contended before the .Full Bench, as it is contended before us, on the analogous provisions of section 32 of the Income-tax Act of 1922, that inasmuch as section 46 of that Act nrovides modes for the recovery of income-tax, the Crown is not entitled to adopt any different method. This cnntention was repelled.\n\nLeach. C.J., observed at p. 185 :\n\n\"This section, h. •.vever, does not profess to be exhaustive and it cannot without express wordo, to that effect take away from tile Crown the right of enforcing 11av- _._n1ent_by any_cithe~_method open to it. Therefore, I do\n\n(1) (1938) VJ l.T.R. 180.\n\nnot regard section 46 as imposing a bar to an application or the nature of the one we are now concerned with.\"\n\nVaradachariar, J., had expressed a doubt as to the procedure for recovery,. but he had howevr no doubt that the Crown had a priority tor the recovery of debts due to it, and consequently agreed in favour of the view expressed by Leach, C.J. Mockett, J., also agreed with this view. This case was COl!Sidered by Harris; C.J., and Chatterjee, J., of the Patn:i High Court in lnder Chand v.\n\nSecretary of State('). In this case the Patna High Court was confilering whether the Crown as a Creditor has th11 ordinary right of suit against the assessee. Following the Full Bel\\ch judgment of the Madras High Court, it was held that a suit was maintainable.\n\nThe contention of Mr. P.R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in s. 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v.\n\nStat_e of Andhra Pradesh('), the Andhra Pradesh High Court also took a similar view. On principle.as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law.\n\nIn this view, the judgment of the High Court is affirmed, and the appeal is dismissed with costs.\n\nV.P.S.\n\nA ppeat dismissed.\n\n(I) A.l.R. 1942 Patna 87 .\n\n(2) A.LR. 1959 A.P. 631.\n\nLV96Sup, C.l./73-2500-30-8 74-GIPF.", "total_entities": 65, "entities": [{"text": "RAJA JAGDISH PRATAP SAHi", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "RAJA JAGDISH PRATAP SAHI", "offset_not_found": false}}, {"text": "STATE OF UTTAR PRADESH", "label": "RESPONDENT", "start_char": 26, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "February 13, 1973", "label": "DATE", "start_char": 50, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "RAJA JAGDISH PRATAP SAHi\n\nSTATE OF UTTAR PRADESH\n\nFebruary 13, 1973\n\n[K. S. HEGDE, P. )AGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 70, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. )AGANMOHAN REDDY", "label": "JUDGE", "start_char": 83, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 107, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Agricultural Income-tax Act", "label": "STATUTE", "start_char": 132, "end_char": 159, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 32", "label": "PROVISION", "start_char": 173, "end_char": 178, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act", "statute": "Agricultural Income-tax Act"}}, {"text": "Agricultural Income-tax Act, 1948", "label": "STATUTE", "start_char": 301, "end_char": 334, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 32", "label": "PROVISION", "start_char": 506, "end_char": 511, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act, 1948", "statute": "Agricultural Income-tax Act, 1948"}}, {"text": "s. 32(2)", "label": "PROVISION", "start_char": 594, "end_char": 602, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act, 1948", "statute": "Agricultural Income-tax Act, 1948"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 747, "end_char": 752, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act, 1948", "statute": "Agricultural Income-tax Act, 1948"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 1575, "end_char": 1580, "source": "regex", "metadata": {"statute": null}}, {"text": "Yogeshwar Prasad", "label": "PETITIONER", "start_char": 2014, "end_char": 2030, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, Hajii Iqbal Ahmed, S. K. Bagga a.nd S.\n\nBagga, for the appellant."}}, {"text": "Hajii Iqbal Ahmed", "label": "LAWYER", "start_char": 2032, "end_char": 2049, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, Hajii Iqbal Ahmed, S. K. Bagga a.nd S.\n\nBagga, for the appellant."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 2051, "end_char": 2062, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, Hajii Iqbal Ahmed, S. K. Bagga a.nd S.\n\nBagga, for the appellant."}}, {"text": "S.\n\nBagga", "label": "LAWYER", "start_char": 2068, "end_char": 2077, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, Hajii Iqbal Ahmed, S. K. Bagga a.nd S.\n\nBagga, for the appellant."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 2099, "end_char": 2114, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 2119, "end_char": 2129, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": "JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 2196, "end_char": 2212, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nJAGANMOHAN REDDY, J.\n\nThe State of Uttar Pradesh filed a suit against the appellant for the recovery of a sum of Rs.", "canonical_name": "Jaganmoha11 Reddy"}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 2222, "end_char": 2244, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nJAGANMOHAN REDDY, J.\n\nThe State of Uttar Pradesh filed a suit against the appellant for the recovery of a sum of Rs."}}, {"text": "Jaganmohan Reddy", "label": "JUDGE", "start_char": 2416, "end_char": 2432, "source": "ner", "metadata": {"in_sentence": "26,548-62 being two instalments of the Agricultural Income-tax due from him\n\nJ. P. SAHi v. U.P. STATE (Jaganmohan Reddy, J.) 529\n\nunder the U.P. Agricultural Income-tax Act (III of 1948) hereinafter referred to as 'the Act').", "canonical_name": "Jaganmoha11 Reddy"}}, {"text": "Agricultural Income-tax Act", "label": "STATUTE", "start_char": 2458, "end_char": 2485, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 9, 1952", "label": "DATE", "start_char": 2730, "end_char": 2746, "source": "ner", "metadata": {"in_sentence": "13,274-31 each payable on December 9, 1952, Februry 9, 1953, April 9, 1953 and June 9, 1953, and accordingly the first instalment was recovered from him with penalty."}}, {"text": "Februry 9, 1953", "label": "DATE", "start_char": 2748, "end_char": 2763, "source": "ner", "metadata": {"in_sentence": "13,274-31 each payable on December 9, 1952, Februry 9, 1953, April 9, 1953 and June 9, 1953, and accordingly the first instalment was recovered from him with penalty."}}, {"text": "April 9, 1953", "label": "DATE", "start_char": 2765, "end_char": 2778, "source": "ner", "metadata": {"in_sentence": "13,274-31 each payable on December 9, 1952, Februry 9, 1953, April 9, 1953 and June 9, 1953, and accordingly the first instalment was recovered from him with penalty."}}, {"text": "June 9, 1953", "label": "DATE", "start_char": 2783, "end_char": 2795, "source": "ner", "metadata": {"in_sentence": "13,274-31 each payable on December 9, 1952, Februry 9, 1953, April 9, 1953 and June 9, 1953, and accordingly the first instalment was recovered from him with penalty."}}, {"text": "April 21,1953 was", "label": "DATE", "start_char": 2921, "end_char": 2938, "source": "ner", "metadata": {"in_sentence": "Notice to pay the second and third instalments by April 21,1953 was served on him but this amount was not paid."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3035, "end_char": 3055, "source": "ner", "metadata": {"in_sentence": "Instead, the appellant filed a Writ Petition in the Allahabad High Court and obtained a stay order which was subsequently vacated."}}, {"text": "s. 32(2)", "label": "PROVISION", "start_char": 3292, "end_char": 3300, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act", "statute": "Agricultural Income-tax Act"}}, {"text": "s. 32(2)", "label": "PROVISION", "start_char": 3965, "end_char": 3973, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 4372, "end_char": 4377, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 4462, "end_char": 4472, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 4645, "end_char": 4655, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 4659, "end_char": 4669, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 4975, "end_char": 4985, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5526, "end_char": 5540, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 46", "label": "PROVISION", "start_char": 5609, "end_char": 5614, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5622, "end_char": 5649, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 232", "label": "PROVISION", "start_char": 5686, "end_char": 5692, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 5761, "end_char": 5766, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5961, "end_char": 5975, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 46(2)", "label": "PROVISION", "start_char": 6261, "end_char": 6269, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 6854, "end_char": 6859, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaganmoha11 Reddy", "label": "JUDGE", "start_char": 8024, "end_char": 8041, "source": "ner", "metadata": {"in_sentence": "J. P. SAHi v. U.P. STATE (Jaganmoha11 Reddy, J.) 5:Jl\n\nto it is a general right conferred on it under the law either by a suu 'or Dy some oma memod open to 1t.\n\nSection 32, thougn H ctoes not nave an Expianauon analogous to s. 4o nonetneless uoes\n\nnot preclude either spec1ticatly or by necessary impllcauon a nghr to recover the arrears o!", "canonical_name": "Jaganmoha11 Reddy"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 8159, "end_char": 8169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8222, "end_char": 8226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 9702, "end_char": 9707, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 9767, "end_char": 9772, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 9923, "end_char": 9940, "source": "ner", "metadata": {"in_sentence": "In Manickam Chettier v. Income-tax Officer, Madurai('), a Full Bench of the Madras High Court was dealing with the right of the Crown to obtain payment of arrears of tax due from the assessees properties sold in execution of a. decree where the question were, firstly, whether the Government was entitled to claim a priority, and secondly, whether, as."}}, {"text": "section 32", "label": "PROVISION", "start_char": 10467, "end_char": 10477, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10485, "end_char": 10499, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 46", "label": "PROVISION", "start_char": 10526, "end_char": 10536, "source": "regex", "metadata": {"statute": null}}, {"text": "Leach", "label": "JUDGE", "start_char": 10684, "end_char": 10689, "source": "ner", "metadata": {"in_sentence": "Leach."}}, {"text": "section 46", "label": "PROVISION", "start_char": 10984, "end_char": 10994, "source": "regex", "metadata": {"statute": null}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 11085, "end_char": 11098, "source": "ner", "metadata": {"in_sentence": "Varadachariar, J., had expressed a doubt as to the procedure for recovery,."}}, {"text": "C.J. Mockett", "label": "JUDGE", "start_char": 11321, "end_char": 11333, "source": "ner", "metadata": {"in_sentence": "but he had howevr no doubt that the Crown had a priority tor the recovery of debts due to it, and consequently agreed in favour of the view expressed by Leach, C.J. Mockett, J., also agreed with this view."}}, {"text": "Harris", "label": "JUDGE", "start_char": 11396, "end_char": 11402, "source": "ner", "metadata": {"in_sentence": "This case was COl!Sidered by Harris; C.J., and Chatterjee, J., of the Patn:i High Court in lnder Chand v.\n\nSecretary of State(')."}}, {"text": "Chatterjee", "label": "JUDGE", "start_char": 11414, "end_char": 11424, "source": "ner", "metadata": {"in_sentence": "This case was COl!Sidered by Harris; C.J., and Chatterjee, J., of the Patn:i High Court in lnder Chand v.\n\nSecretary of State(')."}}, {"text": "Patn:i High Court", "label": "COURT", "start_char": 11437, "end_char": 11454, "source": "ner", "metadata": {"in_sentence": "This case was COl!Sidered by Harris; C.J., and Chatterjee, J., of the Patn:i High Court in lnder Chand v.\n\nSecretary of State(')."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 11514, "end_char": 11530, "source": "ner", "metadata": {"in_sentence": "In this case the Patna High Court was confilering whether the Crown as a Creditor has th11 ordinary right of suit against the assessee."}}, {"text": "P.R. Das", "label": "OTHER_PERSON", "start_char": 11759, "end_char": 11767, "source": "ner", "metadata": {"in_sentence": "The contention of Mr. P.R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in s. 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v.\n\nStat_e of Andhra Pradesh('), the Andhra Pradesh High Court also took a similar view."}}, {"text": "s. 46", "label": "PROVISION", "start_char": 11883, "end_char": 11888, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 11984, "end_char": 12009, "source": "ner", "metadata": {"in_sentence": "The contention of Mr. P.R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in s. 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v.\n\nStat_e of Andhra Pradesh('), the Andhra Pradesh High Court also took a similar view."}}, {"text": "LV96Sup", "label": "WITNESS", "start_char": 12493, "end_char": 12500, "source": "ner", "metadata": {"in_sentence": "LV96Sup, C.l./73-2500-30-8 74-GIPF."}}]}
{"document_id": "1973_3_533_540_EN", "year": 1973, "text": "SANTOKH SINGH\n\nDELHI ADMINISTRATION February 20, 1973\n\n[A. ALAGIRISWAMJ, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nConstitutwn of India, Article l9(l)(a)-Punjab Security of State Act (No. 12 of 1953)-Sec. 9 whether violates Article 19(1)(a)- Speech or statement which \"tends to over throw the State\"-whether restriction unreasonable-Constitution of India, Art. 136-Appeal by Speciui leave on a pure queStion of law effecting constitutional validity of\n\nan Act-lvhether can be raised for first time in Supreme Court-Scope of appeal lln special [eave-whether apper/ant can claini adjudicction on n1crits as of right.\n\nThe appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited th• defence employees to commit offences prejud'icial to security of the State or to the maintenance of public order. Sec. 9 of the Act prohibits speeches or staten1ents etc, which have effect of undermining the security of the State, friendly .relations with foreign States, public order decency or morality or which am, ount to contempt of court, defamation or incitenlent to an offence prejudicial to the security of th~ State or the maintenance of public order or Wlhich tends to over throw the State._ On perusal of the documents filed u/s. 173 of the Cr.P.C., the Magistrale came to the conclusion that the prima facie case was established.\n\nThe appellant unuccessfuJiy challenged the said 1nter-locutory order before the Sessions Court and then in th~ High Court.\n\nOn appeal by special leave, the appellant raised the questio.o of constitutional validity of Sec. 9 of the ,\\ct. The appellant contended: (i) that Sec. 9 of the Punjab Security of State Act waSI violative of the fundamental right guaranteed under Art. 19(1) (a) of the Constitution, and (ii) in the altern11tive, thE ope'ration of Sec. I) should be limited only to suc}1 matters as involve incitement to violence or intention or tendency to create publi~ disorder or cause disturbance tc> public peace.\n\nJn di!'- missing the appeal.\n\nHELD : (i) Except the words \"tends to o\\er throw the State\" the rest of the provisions of Section 9 rep<oduce the provisions of Art. 19(2) of the Constitution. The prohibition relating to offending speech, wod!s or the . other publications wbic!) tend to over throw the State clearly fall within the sweep of the expression \"incitemeiit to an offence prejudicial to the security of the State\". Restriction, therefore, is prima facie reasonable restriction. rs37 C-El\n\n. Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia 11962] 2 S.C.R. 321, distinguished on facts.\n\n(ii) Reasonable restrictions in respect of matters specified in Art. 1?(2). are essential for integrated development on egalitarian. progres- OJve lines of any peace lovin~ civilised society. Art. 19(2) thus save• the constitutional validity of Sec. 9 of the Act. The analogy between s: 124( I) !PC and Sec. 9 of the Act is wholly misoonceived and in vrew of he comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot be . retncted to those speeches and expressions which ir.cite or tend to mc1te viclence only.\n\nSec. 9 cannot be interpreted in a restricted 2-L 761 SuPCl/73 .\n\nmanner Sec'. 124( 1) IPC was interpreted in Kedarnath Singh v. State of A Bihar r.1966 Supp, 2 S.C.R. 7691. [539 A-Cl\n\n(iii) 'fhc Supreme Court may allow the question of law elf~ the constitutional validity of an Act for the first ti~ to be k\"aised in Supreme Court.\n\nIn an appeal by special leave under Art. 136 of the Constitution, the scope of the '-.ippeal is not enlarged after leave and the appellant cannot as of right claim adjudicaticm on merits.\n\nThe B Court would not pronounce its opinion on the merits of the charge framed against the appellant.\n\n[540 C-E]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 197 of 1972.\n\nAppeal by special leave from the judgment and order dated 24th day of February 1972, of the Delhi High Court in Cr. Rev. c No. 469 of 1970.\n\nS. C. Agarwala and A. K. Gupta for the appellant.\n\nD. P. Bhandari and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.\n\nThis appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court of Delhi dated February 24, 1972 rejecting the appellant's revision petition under ss. 430 and 561-A of the Code of Criminal Procedure. In that revision he had prayed that the charge franwd\n\nagainst him by a Magistrate, First Cl'ass, New Delhi on July 3,\n\n1969 under s. 9 of the Punjab Security of State Act (Punjab Act no. 12), 1953 (hereinafter called the Act) be quashed. The special leave petition originally came up for preliminary hearing before a bench of this Court on August 18, 1972 when notice to show cause was issued. On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner's counsel to file a writ petition. It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on uwal terms. The appeal was also directed to be heard on the existing paper book with liberty tb the parties to file such additionaJI documents as they wished to file from the record. The appeal was directed to be_listed for hearing in the second week of Januar:y,\n\n1973. Sometime in January, 1973 the aopellarit presented criminal miscellaneous petition no. 32 of 1973 seeking permission to urge additional grounds. In that application the constitutional validity of s. 9 of the Act was questioned. The said section, according to the averment in that petition, infringes the fundamentjd right of speech guaranteed under Art. 19(1)(a) of the ConsQ. tution.\n\nIt is alleged by the prorecution that the aooe!lant had addressed a public' meeting of the employees of the Defence Department on\n\nA October 9, 1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State or to the maintenance of public order. The Magistrate had, on perusal of the documents filed under s. 1973, Cr. P.C. framed a charge against the appellant punishable under s. 9 of the Act.\n\nAccording to the judgment of the High Court the offending por- B tion of the speech which had been delivered in Hindi reads as follows :\n\n\"There will be hunger strike at Chavan Sahib's kothi No. 1 Race Course Road.\n\nIf Chavan Sahib thinks that they will be\"in position to .crush us with the assistance of C.R.P. and B.S.F. then that is his misunderstanding.\n\nChavan Sahib when the Britishers had to leave this country then the same military and police will push you out. Because these children of military and police personnels are also hungry they also require bread for eating. Therefore, the day has to come when after their unity these workers will send you out. Comrades the Government suffered the moral death when it promulgated the ordinance. Because we had no idea of starting any violance, when we demanded bread, clothes and house. This struggle of ours will continue. If Government servants die then other labourers will take this struggle ahead. One thing more I want to tell you that if there will be no celebration of Diwali in the house of our .fifty thousand people, then there shall be darkness in the houses of these ministers. I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London .\n\nAnnexures I and II attached to the petition under Art. 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which the charge sheet had been filed in court contained a couple of more sentences which do appear to be of some importance. But we consider it unnecessary for our-present purposes to refer to them.\n\nThe High Court considered the part of the speech reproduced\n\nabove and after referring to the decisions of this Court in Srate of Bihar v. Shrimati Shailba/a Devi('), Ram Manolwr Lohia v. State of Bihar(') and Sudhir Kumar Saha v. The Commissioner of Police(') dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under s. 9 of the Act. It was, however. added that it was open to the petitioner either by cross-examination of the prosecution\n\n(1) A.l.R. 1952 S.C. 320.\n\n(21 A.T.R. 1966 S.C. 740.\n\n(3) [19701 I S.C.C. 149.\n\n(1973] 3 S, C.R.\n\nwitnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order. The High Court felt that at that stage it could not be_ said that there was no prima facie case against the petitioner under s. 9 of the Act.\n\nIn this Court Shri S. C. Agarwal questioned the vires of s. 9 of the Act, contending tijat this section is violative of the fundamental right guaranteed by Art. 10 (I)( a) Of the Constitution.\n\nNo doubt, this point was not raised in the High Court and in this Court also it was specifica!Iy sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in/question was itself 5ought in para 5 of the petition for special leave to be protected , by Art. 19 (I) (a) and as it was a pure question! of law raising the constitutionality of s. 9 of the Act we permitted the counsel to raise it.\n\nSection .9 of the Act reads :\n\n'9. Dissemination of rumours, etc.- Whoever\n\n(a) makes any speech, or\n\n(b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or moraljty, .. QJ: amounts to contempt of , Court, defamation or incitement to an offence prejiidicial tq the security of the State\n\nor the maintenance Of public order, or tends to overthrow the !?tate, be punislfaple with impri!IO'ninent which may extend to three years dr with fine or with both.\" This section on its own plain Ieiding• taken within its fo(d all the objectionable matters which had been taken by sub-Art. (2) of Art. 19 out of the guaranteed freedom of speech and expression protected by cl. (a) of Art. 19(1). In order to fully understand f!ie f; e7®m of speech and expression guaranteed by the Constitution 1t 1s necessary to reproduce Art. 19(l)(a) and (2) :- Right to Freedom 19(1) All citizens shall have the right- ( a) to freedom of speech and expression;\n\n(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the\n\n'! •\n\n\"' '\n\nState from making any Jaw, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the soverQignty and integrity of India, the security of the State, friendly rel!ltions with foreign st!!tes, public order, de.- oency or morality, or in relation to contempt of court, defamation or incitement to an offonce\".\n\nIt may appropriately be.pointed out here that sub-Art. (2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India. This !imitation was not in this sub-Article in 1953 but as it does not affect the question raised in this case we need say notlting more about it.\n\nReading s. 9 of the Act and Art. 19 ( 2) of the Constitution it is obvious that the only matter specifically contained in s. 9 in addition to those stated in Art. 19(2) relate to the offendinr, speech, words or other publications which ''.tends to overthrow the State\". Now this matter would clearl1 also fall within the sweep of the expression \"incitement to an offence. prejudicial to the security of the State\" contained ins. 9 and within Art. 19(2) where it speaks of \"reasonable restrictions .... in the interest of. . . . the security of the State\". Anything tending to overthrow the State lmliSt necessarily be prejudicial to the security of the State and. therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State. Prima facie, therefoi:e, s. 9 clearly falls within the express language of Art. 19 ( 2) .\n\nOn behalf of the appellant great stress was laid on Superilllendent of Central Jail, Fatehgarh v. Ram Manohar Lohia(1) where ihis Court struck down as unconstitutional s. 3 of the U.P. Special F Powers Act (U.P. Act 14 of 1932). That section reads:\n\n\"3. Whoever by word, either spoken or written or by signs or by visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of ani liability,\n\nnd whoever does any a7t with intent or.knowing it to be likely. tat any w<;>rd~, Sls or visible reprntation> contammg such mstigation shall thereby be communicated directly or indirectly to any person or class of\n\nprsos, iry. any manne.r whatsoever, shall be punishable with imprisonment which mav extend to si1C months or with fine, extending to Rs. 250, or with both.\" '\n\nOn the face of its plain language this section is materially different from s. 9 of the Act. It therefore does nor require elaborate argu-\n\n{1) [1962] 2 S.C.R. 321.\n\n538 SUPllEME C()UllT llEPOllTS (1973] 3 S.C.ll.\n\nment for distinguishing this decision. _Sec!ion 3 of the U.P. ct is clearly hit by Art. 19(1) (a) and can on no reasonable or rational\n\nargument be saved by Art. 19(2). There being absolute!y no 1similarity between that section and s. 9 of the Act with whi.c.h we are concerned, the ratio of that decision cannot serve as a precedent for invalidating s. 9 Of the Act. The appellant's learned counsel then drew our attention to Kedarnath Singh v. State of bihar (1) in which ss. 12A and 505, I.P.C. were held to be in the interest of public order and within the almbit of constitutional limitations contemplated by Art. 19(1) (a) rell!l with Art. 19(2). On\n\n!f; hQ analogy of s. 124A as construed in decision it was contended that in order to bring s. 9 of the Act within the constitutional limits of Art. 19(2) it must similarly be construed narrowly so that the fundamental freedom of speech and eXpression is not unduly, restricted. The operation of s. 9 of the Act, it was submitted, should be limited only to such matters as involve incitei; nent\n\nto violence or intention or tendency to create public disorder or . cause !disturbance of public peace.\n\nThe fundamental right guai:anteed by Art. 19( 1) (a) and the interest of public order protected by Art. 19(2) according to Shri Agarwal's submission. must be !properly adjusted and a correct balance struck between two.\n\nJn our opinion, the principle governing the construction of Art. 19(1)(a) read with Art. 19(2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole ground over again by going through them extensively,\n\nWe of course agree with Shri Agarwal that the fundamentar right guaranteed by Art. ~9( 1) (a) and the interest of public protected by Art. 79(2) must be properly adjusted and reasonable balancd struck between the two. There can be no dispute that there is no such thing as absolute or unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy. The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic. Our governmental set up being elected, limited and: responsible \"\".e need requisite freedom of animadversion, for our social interest ordinar\\ly demands free propagation of views. Free-·\n\ndom. to think as one likes. and to speak as one thinks are as a ru,1e, indisjiensable to the discovery and soread of truth and' wit.bout 11ree s.l>eech discussion may well be futile. But at the same' . time we can only ignore at our peril the vital importance of our\n\nsocial interest in, inter alia, public order and security of our State.\n\nIt is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social inrn [19661 Supp. 2 S.C.R. 769.\n\nt '\n\nterests. It has permitted imposition of reasonable tri_ctions m the citizen's right of freedom of speech and expression_ m the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger coUective inerest Of the nation as a whole. Reasonable restriction in respect of matters specified in Art. 19(2) are essential for integrated development on egalitarian, progressive lines of any peace-loving, civilised s0ciety. Article 19(2) thus saves the constitutional validity of s. 9 of the Act. The analogy between s. 124A, l.P.C. and s. 9 of the Act is wholly misconceived and in view of the comprehensive\n\nsweep of Art. 19(2) we are unable to restricts. 9 of the Act only tp ltliose shes and expressions which incite or te, nd to incite violence. ' Learned counsel also tried to refer us to some American decisions for developing the argumnt that the guaranteed freedom of speech and expressiop. should be broadly construed buf we 'did not . consider it necessary to go into the American decisions, notwith-. standing the fact that in Express Newspapers (P.) Ltd, v. Union D of l11dia(') it was observed that .American decisions were relevant for the purpose of understanding the scope of Art. 19(1) (a). In our opinion, it is hardly fruitful to refer to the American decisions particularly when this Court has more than once clearly enunciated the scope and effect of Art. 19(1)(a) and 19(2). The test of reasonableness of the restriction has to be considered in each case gin the light of .the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed and the prevailing social and other conditions at the time. There can be no .abstract standard '1r general pattern of reasonableness. Our Constitution provides reasonably precise, general guidance in this matter. It would thus be misleading to F construe it in the light of American decisions given in different bontext. (Section 9 of the Act is, in our view, plainly within the le!tlslative competence of th~ Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant's_ speech is covered by this section.\n\nShri Agarwal made a strenuous effort to persuade us to cons- . true the offending portion of the speech as reproduced in the judglllllnt of the High Court and express our opinion whethee or not the charge against him has been lawfully framed. The charge reads as under :\n\n\"That you. on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak in the area of Delhi Cantt. made a speech at a public meeting organised by Delhi Defence employees in which you\n\n(I) [1959] S.C.R. 12.\n\ndemanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable under section 9 of the P.S. Act and within my cognizance.\" The appellant, it may be pointed out, had approached the sessions Court on revision to .have this charge quashed.\n\nThat court apparently did not agree with the appellant.\n\nHe then approached the High Court on revision where also he failed.\n\nTh_~ impugned judgment of the High Court does not .show any serious legal infirmity resulting in failure of justice which should induce this Court to interfere under Art. 136 of the Constitution. The submission that at this Court has already granted special leave we must decide the question of the legality of the charge on the merits has not appealed to us.\n\nEven at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage when the leave to appeal is asked. for. After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right diiim adjudication on the merits if this Court feels .that there is no grave injustice done to the appellant as a result of any serious legal infirmity.\n\nWe are unable to find any such infirmity in the impugned judgment. The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed.\n\nWe have, however, no doubt that the learned Magistrate trying the appellant's case will deal with all the points raised before him O!.J the merits without being iciluenced by the tentative view expressed by the High Court which the appelfant himself invited.\n\nWe also hope that . this case which relates to a peech said to have been delivered in October, 1968 and in which the prosecution was initiated as far back as January, 1969 when the charge was put into-court, would be disposed of with due dispatch and without avoidable delay. This appeal fails and is dismissed.\n\nS.B.W.\n\nAppeal dismissed.", "total_entities": 105, "entities": [{"text": "SANTOKH SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "SANTOKH SINGH", "offset_not_found": false}}, {"text": "DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 15, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "DELHI ADMINISTRATION", "offset_not_found": false}}, {"text": "February 20, 1973", "label": "DATE", "start_char": 36, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "SANTOKH SINGH\n\nDELHI ADMINISTRATION February 20, 1973\n\n[A. ALAGIRISWAMJ, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nConstitutwn of India, Article l9(l)(a)-Punjab Security of State Act (No."}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 73, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "I.D. 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2980, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(2)", "label": "PROVISION", "start_char": 3056, "end_char": 3066, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sec. 9", "label": "PROVISION", "start_char": 3068, "end_char": 3074, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 9", "label": "PROVISION", "start_char": 3188, "end_char": 3194, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 3274, "end_char": 3277, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court", "label": "COURT", "start_char": 3505, "end_char": 3518, "source": "ner", "metadata": {"in_sentence": "539 A-Cl\n\n(iii) 'fhc Supreme Court may allow the question of law elf~ the constitutional validity of an Act for the first ti~ to be k\"aised in Supreme Court."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 3557, "end_char": 3565, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "S. C. Agarwala", "label": "JUDGE", "start_char": 4033, "end_char": 4047, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and A. K. Gupta for the appellant.", "canonical_name": "S. C. Agarwala"}}, {"text": "A. K. Gupta", "label": "OTHER_PERSON", "start_char": 4052, "end_char": 4063, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and A. K. Gupta for the appellant."}}, {"text": "D. P. Bhandari", "label": "OTHER_PERSON", "start_char": 4084, "end_char": 4098, "source": "ner", "metadata": {"in_sentence": "D. P. Bhandari and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 4103, "end_char": 4117, "source": "ner", "metadata": {"in_sentence": "D. P. Bhandari and R. N. Sachthey, for the respondent."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4184, "end_char": 4187, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.\n\nThis appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court of Delhi dated February 24, 1972 rejecting the appellant's revision petition under ss."}}, {"text": "ss. 430 and 561", "label": "PROVISION", "start_char": 4392, "end_char": 4407, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 4417, "end_char": 4443, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "New Delhi", "label": "GPE", "start_char": 4543, "end_char": 4552, "source": "ner", "metadata": {"in_sentence": "In that revision he had prayed that the charge franwd\n\nagainst him by a Magistrate, First Cl'ass, New Delhi on July 3,\n\n1969 under s. 9 of the Punjab Security of State Act (Punjab Act no."}}, {"text": "July 3,\n\n1969", "label": "DATE", "start_char": 4556, "end_char": 4569, "source": "ner", "metadata": {"in_sentence": "In that revision he had prayed that the charge franwd\n\nagainst him by a Magistrate, First Cl'ass, New Delhi on July 3,\n\n1969 under s. 9 of the Punjab Security of State Act (Punjab Act no."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4576, "end_char": 4580, "source": "regex", "metadata": {"statute": null}}, {"text": "August 18, 1972", "label": "DATE", "start_char": 4786, "end_char": 4801, "source": "ner", "metadata": {"in_sentence": "The special leave petition originally came up for preliminary hearing before a bench of this Court on August 18, 1972 when notice to show cause was issued."}}, {"text": "September 19, 1972", "label": "DATE", "start_char": 4843, "end_char": 4861, "source": "ner", "metadata": {"in_sentence": "On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner's counsel to file a writ petition."}}, {"text": "September 26, 1972", "label": "DATE", "start_char": 5015, "end_char": 5033, "source": "ner", "metadata": {"in_sentence": "It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on uwal terms."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5537, "end_char": 5541, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 5690, "end_char": 5703, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 1973", "label": "PROVISION", "start_char": 6101, "end_char": 6108, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 6174, "end_char": 6178, "source": "regex", "metadata": {"statute": null}}, {"text": "Chavan Sahib", "label": "OTHER_PERSON", "start_char": 6362, "end_char": 6374, "source": "ner", "metadata": {"in_sentence": "According to the judgment of the High Court the offending por- B tion of the speech which had been delivered in Hindi reads as follows :\n\n\"There will be hunger strike at Chavan Sahib's kothi No."}}, {"text": "Udham Singh", "label": "OTHER_PERSON", "start_char": 7426, "end_char": 7437, "source": "ner", "metadata": {"in_sentence": "I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London .", "canonical_name": "U dham Singh"}}, {"text": "U dham Singh", "label": "OTHER_PERSON", "start_char": 7504, "end_char": 7516, "source": "ner", "metadata": {"in_sentence": "I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London .", "canonical_name": "U dham Singh"}}, {"text": "Dyre", "label": "OTHER_PERSON", "start_char": 7524, "end_char": 7528, "source": "ner", "metadata": {"in_sentence": "I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London ."}}, {"text": "London", "label": "GPE", "start_char": 7544, "end_char": 7550, "source": "ner", "metadata": {"in_sentence": "I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London ."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7604, "end_char": 7612, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 8336, "end_char": 8340, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 8925, "end_char": 8929, "source": "regex", "metadata": {"statute": null}}, {"text": "S. C. Agarwal", "label": "JUDGE", "start_char": 8962, "end_char": 8975, "source": "ner", "metadata": {"in_sentence": "In this Court Shri S. C. Agarwal questioned the vires of s. 9 of the Act, contending tijat this section is violative of the fundamental right guaranteed by Art.", "canonical_name": "S. C. 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{"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(l)(a)", "label": "PROVISION", "start_char": 10632, "end_char": 10645, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 11074, "end_char": 11079, "source": "ner", "metadata": {"in_sentence": "\"' '\n\nState from making any Jaw, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the soverQignty and integrity of India, the security of the State, friendly rel!ltions with foreign st!!tes, public order, de.- oency or morality, or in relation to contempt of court, defamation or incitement to an offonce\"."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 11638, "end_char": 11642, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 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India"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 13845, "end_char": 13849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 13964, "end_char": 13968, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 12A and 505", "label": "PROVISION", "start_char": 14087, "end_char": 14102, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 14104, "end_char": 14109, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 14227, "end_char": 14237, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 19(2)", "label": "PROVISION", "start_char": 14254, "end_char": 14264, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 124A", "label": "PROVISION", "start_char": 14288, "end_char": 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Code"}}, {"text": "Agarwal", "label": "OTHER_PERSON", "start_char": 14898, "end_char": 14905, "source": "ner", "metadata": {"in_sentence": "19(2) according to Shri Agarwal's submission."}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 15050, "end_char": 15063, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 19(2)", "label": "PROVISION", "start_char": 15074, "end_char": 15084, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 79(2)", "label": "PROVISION", "start_char": 15377, "end_char": 15387, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19(2)", "label": "PROVISION", "start_char": 16876, "end_char": 16886, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s0", "label": 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{"document_id": "1973_3_541_545_EN", "year": 1973, "text": "UNION OF INDIA OWNER OF THE EASTERN RAILWAY\n\nTHE COMMISSIONER OF SAHIBGANJ MUNICIPALITY\n\nFebruary 22, 1973\n\n(S. M. SIKRI, C.J., A. N. RAY, 0. G. PALEKAR, S. N. 0WIVEDI\n\nAND A. K. MUKHERJEA, JJ.]\n\nThe Railways (Local Authorities Taxation) Act, 1941. Ss. 3 and 4--Scope of-Liabii!ity of Railway Administrc.:tion to pa, v nuuzicipa/ tox with respect to their buildings under s. 154, Goi•enunent o/ India :Act,\n\n1935, and Art. 285 of the Constitution.\n\nPursu-anl to s. 135 of the Indian Railways Act, 1890, the G, ovcrnor General in Council issued '3. notification dated 24 August, 1911. declaring that the administration of the East India!O' Rail\"'!ay shall be liable to pay in aid of the funds of the local authorities s-et out in the Schedule thereto the taxes spec'ifie9, therein.\n\nJn one of the local -aatho4 fities so set out, the railway administration constructed 32 blocks of buildings, sorne after 31 March 1937 and some after 25 Januarv 1950.\n\nThee buildings were assessed to municipal tax by the responden~ with effect from the fourth quarter of 1965-66. The appellant con'.ended that there \\Vas no liability to pay the municipal tax because of s. 154 of the Government of India Act, 1935, and Art. 285 of the Con-; titution.\n\nThe High Court held that the notification issued by the Government in 1911 continued by virtue of s. 4 of the Railways (Lo::-al\n\nAutorities Taxation) Act, 1941, that t~ 1941-Act was a feder; il law, that the 1911 notification was not in respect of a.ny particular property, and that. therefore, the railway properties whether in existence before 1st J\\pril, 1937, dr coming into existence thereafter, were liabl~ to pay the tr.xcs.\n\nAllowing the appeal to this Court,\n\nHELD : The High Court was ln error in construing that the notification iS&ued in 1911 under the 1890-Act confinued by virtue of s. 4 of the 1941-Act. r544G-HJ\n\nUnder s. 154 of the 1935-Act all property vested in His Majesty for purposes of the Federation shall save in so fa'r as any Federat law may otherwise provide, be exempt from all taxes imposed by. or by oany authority within, a Province or a State.\n\nThe proviso to the section states that until any Federal law other\\vise provides ainy property so vested, which was immediately before the commencement of Part Ill of the 1935-Act liable to any such tax sha11, so long U:i that tax continues, continue to be liable.\n\nArticle 285 of the Consiitution also provides that the property of the Union shall, save in s0 far a$ Par1iameiat may by law otherWise provide. be exempt from all taxes imposed by a State or by any authority within a State, and, cl. (2) of t!Jat Article states that nothing in cl. (1) shall, until Parliament by law er other\\Vlse provides, prevent any authority in a State from levying any tax on any property of the Unio.n to which such property was 1n1mcc.iiatelv before \"the commencement of the Constitution liable, so Jong as that tax continues to be levied in that State. (543B-FJ\n\nThe 32 blocks of buildings were not in existence before 1 Aj*il, 1937, llil!d hence were not ves~ in His Maje.ty for purposes of the Federation. and were not liable to pay the municipal tax before that\n\ndaflt. They were, theretore, exempt from all taxes imposed by any .+- authority within a Provine;, until a Fed\"{al law otherwise provided; and could be made liable only if Parliament, by law, provided to , that effect.\n\nSection 4 of the 1941-Act did not provide for payment Of taxes in respect of Railway property. Sectiqn 3 of the Act, however staks that a j'a'ilway administration shall be , liable to pay any tax in aid of the funds of any local authority if t~.e Cntral government by notifica tfon in the official gazctkc declares it to be so liable. But no such B notification declaring railway properties to be liable to pay any tax in aid of the funds of any local authority under s. 3 of the 1941-Act bas been issued. f544C-FJ\n\nCorporation of Calcutta v. Governors of St. Thomas School, CalcuttG:. [1949] F.C.R. 368, applied.\n\nCIVIL APPELIATE u&1smcnoN : Civil Appeals Nos. 2304 c and 2042 of 1968.\n\nAppeals by certificate from the judgments and orders dated 22nd September 1965 and 2nd July 1968 of the Patna High Court at Patna in C.W.J.C. Nos. 431 of 1962 and 344 of 1968.\n\nF. S. Nariman, Addl. Solicitor-General of India, B. D.\n\nSharma and S. P. Nayar, for the appellant.\n\nM. C. Setalvad and D. Goburdhun, for the respondent\n\nThe Judgment of the Court was deivered by\n\nRAY, J. The only question which falls for determination in. these two appeals by certificate is whether the respondent Municipality is entitled to levy and collect taxes on 31 blocks of buildings some constructed after 31 March, 1937 and some after 25 January, 1950.\n\nThe buildings are situated within the municipal limits of the Sa_hibganj Municipality in the State of Bihar.\n\nPursuant to section 135 of the Indian Railways Act, 1890 referred to as the 1890 Act, the Governor General in Council by a Railway Department, Railway Board notification No. 225 dated 24 August, 1911 declared that the administration of East India Railway shall be liable to pay in aid of the funds of the local authorities set out in the Schedule thereto annexed, the taxes specified in the second column thereof. In the Schedule the names of various local authorities are set out. Sahibganj is one such.\n\nIn the second column the taxes are me_ntioned. In respect of Sahibganj Municipality the taxes specified are House rate and latrine fees.\n\nIn 1961 the Sahibganj Municioality revised the valuation of the buildings and premises with effect from 1 April, 1961. The 32 blocks of buildings forming subject matter of these two apoeals were assessed with effect from the fourth quarter of 1965-66. '\n\nUNION V. COMMR. SAHIBGANJ MUNICIPALITY (Ray, J.) 543\n\nIt is common ground that these 32 blocks of buildings and. premises were constructed sOlllle after 31 March, 1937 and some. after 25 January, 1950.\n\nThe appellant contended that these 32 blocks of buildings could not be made liable to pay the municipal tax by virtue of the provisions contained in section 154 of the Government of India Act, 1935 and Article 285 of the Constitution.\n\nPart III of the Government of India Act, 1935 referred to as the 1935 Act came into force on 1 April', 1937. Under section\n\n154 of the 1935 Act all property vested in 'His Majesty' for purposes to the Federation sall, save in so far as any Federal law may otherwise provide, be exempt from all taxes impos\\!d by, or by any authority within, a Province or Federal State.\n\nThe proviso to section 154 of the 1935 Act states that until any Federal law otherwise provides, any property so. vested which was immediately before the commencement of Part III of the 1935\n\nAct liable or treated as liable, to any such tax shall, so long as that tax continues, continue to be liable, or to be treated as. liable, or to be treated as liable thereto.\n\nArticde 285 of the Constitution also provides that the pro-- perty of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt frQm all taxes imposed by a State or by any authority within a State. Clause (2) of Article 285 states.\n\ntha~ nothing in clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable\n\nor ireated as liable, so long as that tax continues to be levied in that State.\n\nThe High Court held that the Railways Locat Authorities.\n\nTaxation) Act, 1941 referred to as the 1941 Act was a federal law and section 4 of the 1941 Act thereof rendered the buildings liable to taxation. The reasons given by the High Court werethese. The notification issued by the Government in 1911 under\n\nthe :1890 Act continued by virtue of the provisions contained in section 4 of the 1941 Act. The 1911 notification was not in respect of any particular property.\n\nTherefore the railway properties whether in existence before 1 April 1937 or coming into existence after that date were liable to pay taxes.\n\nSection 4 of the 1941 Act provided as follows .The Central Government may be notification revoke or vary any notification issued under clause (1) of section 135 of the 1890 Act. Wherea notification is so revoked any liability arising out of the notification to pay any tax to the legal authority shall cease. Where a\n\nnotification is so varied the liability arising out of the notification A shall be varied accordingly. There was neither revocation nor variation of the aforesaid notification issued under section 135 of the 18 90 Act.\n\nThe High Court overlooked the effect of section 3 of the 1941 Act. Section 3 provides that any railway property vested for purposes of the Central Government shall be liable to pay tax in aid of the funds of a local authority if the Central Government by notification declares it to be so liable.\n\nThis section therefore requires a notification declaring liability to pay. The notification under the 1941 Act creates a liability for railway property coming into existence after the 1941 Act.\n\nBut no such notification was issued.\n\nThe 32 blocks of buildings were not in existence before 1 April, 1937.\n\nThese 32 blocks of buildings were therefore not vested for purposes of the Government of the Federation before the commencement of Part III of the 1935 Act. These 32 blodks of buildings were thus exempt from all taxes imposed by. any authority within a province until a federal law otherwise provided.\n\nSection 4 of the 1941 Act did not provide for payment of taxea in respect of railway property.\n\nSection 3 of tire 1941 Act stated that a railway administration shall be liable to pay any tax in aid of the funds of any local authority if the Central Government by notification in the official gazette declares it to be so liable. It is an admitted feature in these appeals that there was no notification under section 3 of the 1941 Act declaring the railway properties to be liable to pay any tax in aid of the funds of any local authority.\n\nUnder Article 285 of the Constitution property of the Union was exemvt from all taxes until Parliament by law otherwise provides.\n\nThere is no such Jaw providing for taxation of rai!way 'Jlroperty.\n\nClause (2) of Article 285 speaks of liability of railway pro- perty to pay taxes where such property was immediately before the commencement of the Constitution liable or treated as liable to pay any tax levied by any authority within a St<rte.\n\nThese 32\n\nblock~ of buildings were not liable to pay any tax because they were not in existence before, !st April 1937 or before the commencement of the Constitution.\n\nThe High Couvt was in error in construing the notification issued in 1911 under the 1890 Act to continue by virtue of the 'JlfOVisions contained in section 4 of the 1941 Act.\n\nThese 32 blocks of buildings vested in the Union some of thm after 1 April 1937 and some after ithe Constitution came into el(istence. These properties could be made liable to pay tax to the municipality only if Parliament by law provided to that effect.\n\nUNION V. COMMR. SAHUIGANJ MUNICIPALITY (Ray, J.) 545\n\nThe High Court referred to the dedsion of 1this Court in Corporation of Calcutta v.\n\nGovernors of St. Thomas' School, Calcu11a(') 1949 F.C.R. 368 and held that th~ ruling in that decision did not apply to the facts in the present appeals by reason of section 4 of the 1941 Act rendering the properti~ liable to.tax.\n\nThe High Court misconstrued the provisions of section 4 of the 1941 Act. . The decision of ithis Court in St. Thomas' School case\n\n(supra) directly applies to these appeals. St. Th.omas School was situated at 4, Diamond Harbour Road, Calcutta. Tl}e buildings were constructed before April, 1942. The premises were assessed to consolidated rates under the Calcutta Municipal Act. In April,\n\n1 942 the premises were requisitioned for the purposes o{ the Central Government.\n\nAfter tlte requisition the Central Government erected several structures on the premises. In 1944-45 there was a general revaluation by the Corporation of Calcutta.\n\nThe cost of the additional structures erected by the Central Government was taken into account in determining the annual value of the premises.\n\nThe Governors of St. Thomas School. objected to the valuation and claimed that the value of the buildings put up b} the Government should be excluded in the revaluation.• The Ca1cutta High Court held that section- 154 of the Government of India Act, 1935 applied to the buildings constructed by tl1e Central Government and the proviso to section 154 of the 1935 Act was not applicable. This Court held that the buildings constructed by the Central Government were vested in the Government.\n\nIn view of the fact that the additional structures were put up by the Central Government after 1942 it was held that these were net subfiect to municipal tax before April, 1937 .\n\n. The 32 .blocks of buildings in the present appeals were not in existence before 1 April, 1937 and 26 January, 1950.\n\nThe notification under the 1890 Act did not apply to these 32 blocks of buil<Jlngs.\n\nThere is no law declaring these 32 blocks of buildings to be liable to payment of municipal tax as claimed by the respondent municipality.\n\nFor these reasons the judgment of tlte High Court is set aside and the appeals are allowed. Each party will pay and bear their own costs.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 77, "entities": [{"text": "UNION OF INDIA OWNER OF THE EASTERN RAILWAY", "label": "PETITIONER", "start_char": 0, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA OWNER OF THE EASTERN RAILWAY", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF SAHIBGANJ MUNICIPALITY", "label": "RESPONDENT", "start_char": 45, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF SAHIBGANJ MUNICIPALITY", "offset_not_found": false}}, {"text": "February 22, 1973", "label": "DATE", "start_char": 89, "end_char": 106, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA OWNER OF THE EASTERN RAILWAY\n\nTHE COMMISSIONER OF SAHIBGANJ MUNICIPALITY\n\nFebruary 22, 1973\n\n(S. M. SIKRI, C.J., A. N. RAY, 0."}}, {"text": "S. M. 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MUKHERJEA", "offset_not_found": false}}, {"text": "Ss. 3 and 4", "label": "PROVISION", "start_char": 249, "end_char": 260, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 154", "label": "PROVISION", "start_char": 372, "end_char": 378, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 285", "label": "PROVISION", "start_char": 418, "end_char": 426, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 462, "end_char": 468, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railways Act, 1890", "label": "STATUTE", "start_char": 476, "end_char": 501, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "24 August, 1911", "label": "DATE", "start_char": 567, "end_char": 582, "source": "ner", "metadata": {"in_sentence": "notification dated 24 August, 1911."}}, {"text": "25 Januarv 1950", "label": "DATE", "start_char": 933, "end_char": 948, "source": "ner", "metadata": {"in_sentence": "Jn one of the local -aatho4 fities so set out, the railway administration constructed 32 blocks of buildings, sorne after 31 March 1937 and some after 25 Januarv 1950."}}, {"text": "s. 154", "label": "PROVISION", "start_char": 1153, "end_char": 1159, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 1167, "end_char": 1196, "source": "regex", "metadata": {}}, {"text": "Art. 285", "label": "PROVISION", "start_char": 1202, "end_char": 1210, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1333, "end_char": 1337, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1832, "end_char": 1836, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 1870, "end_char": 1876, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Article 285", "label": "PROVISION", "start_char": 2379, "end_char": 2390, "source": "regex", "metadata": {"statute": null}}, {"text": "s0", "label": "PROVISION", "start_char": 2471, "end_char": 2473, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 2677, "end_char": 2687, "source": "ner", "metadata": {"in_sentence": "1) shall, until Parliament by law er other\\Vlse provides, prevent any authority in a State from levying any tax on any property of the Unio.n to which such property was 1n1mcc.iiatelv before \"the commencement of the Constitution liable, so Jong as that tax continues to be levied in that State. ("}}, {"text": "1 Aj*il, 1937", "label": "DATE", "start_char": 3022, "end_char": 3035, "source": "ner", "metadata": {"in_sentence": "543B-FJ\n\nThe 32 blocks of buildings were not in existence before 1 Aj*il, 1937, llil!d hence were not ves~ in His Maje.ty for purposes of the Federation."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 3389, "end_char": 3398, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3857, "end_char": 3861, "source": "regex", "metadata": {"statute": null}}, {"text": "[1949] F.C.R. 368", "label": "CASE_CITATION", "start_char": 3975, "end_char": 3992, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELIATE", "label": "PETITIONER", "start_char": 4004, "end_char": 4019, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELIATE u&1smcnoN : Civil Appeals Nos."}}, {"text": "F. S. Nariman", "label": "OTHER_PERSON", "start_char": 4254, "end_char": 4267, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Addl."}}, {"text": "B. D.\n\nSharma", "label": "LAWYER", "start_char": 4303, "end_char": 4316, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, B. D.\n\nSharma and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4321, "end_char": 4332, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, B. D.\n\nSharma and S. P. Nayar, for the appellant."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 4354, "end_char": 4368, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and D. Goburdhun, for the respondent\n\nThe Judgment of the Court was deivered by\n\nRAY, J. The only question which falls for determination in."}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 4373, "end_char": 4385, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and D. Goburdhun, for the respondent\n\nThe Judgment of the Court was deivered by\n\nRAY, J. The only question which falls for determination in."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4450, "end_char": 4453, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and D. Goburdhun, for the respondent\n\nThe Judgment of the Court was deivered by\n\nRAY, J. The only question which falls for determination in."}}, {"text": "Sa_hibganj Municipality", "label": "GPE", "start_char": 4780, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "The buildings are situated within the municipal limits of the Sa_hibganj Municipality in the State of Bihar."}}, {"text": "Bihar", "label": "GPE", "start_char": 4820, "end_char": 4825, "source": "ner", "metadata": {"in_sentence": "The buildings are situated within the municipal limits of the Sa_hibganj Municipality in the State of Bihar."}}, {"text": "section 135", "label": "PROVISION", "start_char": 4840, "end_char": 4851, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railways Act, 1890", "label": "STATUTE", "start_char": 4859, "end_char": 4884, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "East India Railway", "label": "ORG", "start_char": 5064, "end_char": 5082, "source": "ner", "metadata": {"in_sentence": "225 dated 24 August, 1911 declared that the administration of East India Railway shall be liable to pay in aid of the funds of the local authorities set out in the Schedule thereto annexed, the taxes specified in the second column thereof."}}, {"text": "Sahibganj", "label": "GPE", "start_char": 5310, "end_char": 5319, "source": "ner", "metadata": {"in_sentence": "Sahibganj is one such."}}, {"text": "Sahibganj Municipality", "label": "GPE", "start_char": 5395, "end_char": 5417, "source": "ner", "metadata": {"in_sentence": "In respect of Sahibganj Municipality the taxes specified are House rate and latrine fees."}}, {"text": "Sahibganj Municioality", "label": "ORG", "start_char": 5484, "end_char": 5506, "source": "ner", "metadata": {"in_sentence": "In 1961 the Sahibganj Municioality revised the valuation of the buildings and premises with effect from 1 April, 1961."}}, {"text": "31 March, 1937", "label": "DATE", "start_char": 5880, "end_char": 5894, "source": "ner", "metadata": {"in_sentence": "premises were constructed sOlllle after 31 March, 1937 and some."}}, {"text": "25 January, 1950", "label": "DATE", "start_char": 5911, "end_char": 5927, "source": "ner", "metadata": {"in_sentence": "after 25 January, 1950."}}, {"text": "section 154", "label": "PROVISION", "start_char": 6079, "end_char": 6090, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 6098, "end_char": 6127, "source": "regex", "metadata": {}}, {"text": "Article 285", "label": "PROVISION", "start_char": 6132, "end_char": 6143, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Part III of the Government of India Act, 1935", "label": "STATUTE", "start_char": 6166, "end_char": 6211, "source": "regex", "metadata": {}}, {"text": "1 April', 1937", "label": "DATE", "start_char": 6259, "end_char": 6273, "source": "ner", "metadata": {"in_sentence": "Part III of the Government of India Act, 1935 referred to as the 1935 Act came into force on 1 April', 1937."}}, {"text": "section\n\n154", "label": "PROVISION", "start_char": 6281, "end_char": 6293, "source": "regex", "metadata": {"linked_statute_text": "Part III of the Government of India Act, 1935", "statute": "Part III of the Government of India Act, 1935"}}, {"text": "section 154", "label": "PROVISION", "start_char": 6552, "end_char": 6563, "source": "regex", "metadata": {"linked_statute_text": "Part III of the Government of India Act, 1935", "statute": "Part III of the Government of India Act, 1935"}}, {"text": "Article 285", "label": "PROVISION", "start_char": 7145, "end_char": 7156, "source": "regex", "metadata": {"linked_statute_text": "Part III of the Government of India Act, 1935", "statute": "Part III of the Government of India Act, 1935"}}, {"text": "section 4", "label": "PROVISION", "start_char": 7632, "end_char": 7641, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7878, "end_char": 7887, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 8117, "end_char": 8126, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 8168, "end_char": 8186, "source": "ner", "metadata": {"in_sentence": "Section 4 of the 1941 Act provided as follows .The Central Government may be notification revoke or vary any notification issued under clause (1) of section 135 of the 1890 Act."}}, {"text": "section 135", "label": "PROVISION", "start_char": 8266, "end_char": 8277, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 8624, "end_char": 8635, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 8695, "end_char": 8704, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8722, "end_char": 8731, "source": "regex", "metadata": {"statute": null}}, {"text": "1 April, 1937", "label": "DATE", "start_char": 9242, "end_char": 9255, "source": "ner", "metadata": {"in_sentence": "The 32 blocks of buildings were not in existence before 1 April, 1937."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 9561, "end_char": 9570, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9657, "end_char": 9666, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 9970, "end_char": 9979, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 285", "label": "PROVISION", "start_char": 10108, "end_char": 10119, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 285", "label": "PROVISION", "start_char": 10315, "end_char": 10326, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 10863, "end_char": 10872, "source": "regex", "metadata": {"statute": null}}, {"text": "1949 F.C.R. 368", "label": "CASE_CITATION", "start_char": 11331, "end_char": 11346, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 11452, "end_char": 11461, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 11564, "end_char": 11573, "source": "regex", "metadata": {"statute": null}}, {"text": "St. Thomas' School", "label": "ORG", "start_char": 11624, "end_char": 11642, "source": "ner", "metadata": {"in_sentence": "The decision of ithis Court in St. Thomas' School case\n\n(supra) directly applies to these appeals."}}, {"text": "St. Th.omas School", "label": "ORG", "start_char": 11692, "end_char": 11710, "source": "ner", "metadata": {"in_sentence": "St. Th.omas School was situated at 4, Diamond Harbour Road, Calcutta."}}, {"text": "Calcutta", "label": "GPE", "start_char": 11752, "end_char": 11760, "source": "ner", "metadata": {"in_sentence": "St. Th.omas School was situated at 4, Diamond Harbour Road, Calcutta."}}, {"text": "Ca1cutta High Court", "label": "COURT", "start_char": 12477, "end_char": 12496, "source": "ner", "metadata": {"in_sentence": "objected to the valuation and claimed that the value of the buildings put up b} the Government should be excluded in the revaluation.• The Ca1cutta High Court held that section- 154 of the Government of India Act, 1935 applied to the buildings constructed by tl1e Central Government and the proviso to section 154 of the 1935 Act was not applicable."}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 12527, "end_char": 12556, "source": "regex", "metadata": {}}, {"text": "section 154", "label": "PROVISION", "start_char": 12640, "end_char": 12651, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "26 January, 1950", "label": "DATE", "start_char": 13073, "end_char": 13089, "source": "ner", "metadata": {"in_sentence": "The 32 .blocks of buildings in the present appeals were not in existence before 1 April, 1937 and 26 January, 1950."}}]}
{"document_id": "1973_3_546_547_EN", "year": 1973, "text": "AVADH SUGAR MILLS LTD. v.\n\nTHE SALES TAX OFF1CER, SITAPUR & ANOTHER\n\nFebruary 22. 1973\n\n.[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ:]\n\nU. P. Sales Tax Act 1948-Purchase tax on oilseeds-Groundnuts .whether oilseeds.\n\nThe petitioner appellant purchased groundnuts mostly from cultiva tors for the m\"\"1facture of oil. lying on decisions of the Madhya Pradesh and Punjab High Court he coo.tended that grc>undnuts were .not oilseeds and thus not liable .to be subjected to purchase-tax under\n\nthe UJ'. Sales Tax Act. The Allahabad High Court rejected the contention. In appeal by certificate,\n\nHELD : In fipding out the tru~ meaning of term 'oilseeds' found in the SalesT'llX law in question the Co.urt must refer not to tl\\i! dictionary meaning but the meaning ascribed to the term in commercial parlance.\n\n1bere can hardly be any doubt that in commercia.1 circles groun<tnut is d, ealt with as oilseed. The commercial journals refer to groundnuts as a species of oilseeds. [5470-F!\n\nCommissioner of Sales Tax, Mcdhya Pradesh, Indore v. laswant Singh Cluzran Singh, ( 19 S.T.C. 469), relied on.\n\nA seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. It is mostly used for the manufacture of groundnut oil which is an edible oil. The decision relied OP by the appelhlllt mu•t accordingly be held to be wrong and 1he appeal must be dismissed. [547F-G]\n\nCommissioner of Sal.es Tax, Madhya Pradesh, Indore v. Bakhat Rai cl Co. (18 S.T .. C. 285) and Hans Rai Choudhri v. l. S. Rajyana, Excise and Taxation Officer, (19 S.T.C. 489), disapproved.\n\nCIVIL APPELLATE JURISDICTION : CivHAppeal No. 1352 of 1970.\n\nAppeal by certificate from the judgment and order dated 7th day of August 1967of the.Allaliabad High Court in Special Appeal No. 94 of 1967. .\n\nM. C. Chag/a, Suresh Sethi, Ji. K. Maheshwari, Maya Krirhan and B. P. Maheshwari, for the appellant.\n\nN. D. Karkhanis ; ind 0. P. Rana, for the respondents.\n\nThe Judgment of the Court was delivered by HEGDE, J ...... This is an appeal by certificate. The only question that arises for decision is whether groundnut is oilseed. The High Court has come to the conclusion that the groundnut is oilseed.\n\nThe question is to the nature of groundnut came up for consideration !n connection with the levy of purchase-tax on the purchase of oilseed. The assessee in-this case is a manufacturer of oil and the assessee appears to have purchased groundnuts in\n\nD ,\n\nAVADH SUGAR MILLS V. S.T.O., SITAPUR (Hegde, /.) 547\n\nA large quantity for the manufacture of oil. He contended before the assessing authorities as well as before the High Court, unsuccessfully, that groundnut is not oilseed.\n\nIn support of that contention, he relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh, Indore v.\n\nBakhat Rai & Co. (18 S.T.C. 285) and the decision of a single B Judge of Punjab & Haryana High Court in Ha~ Raj .Choudhri\n\nv. J. S. Rajyana, Excise and Taxation Officer (19 S.T.C. 489).\n\nThese two decisions undoubtedly support his c\\)ntention.\n\nThe learned Judge of the Allahabad High Court have not , accepted those decisions as laying down the law correctly and we are in agreement with the view taken by the learned Judges of the c Allahabad High Court.\n\nThe petitioner in his Writ Petition has definitely , stated that he purchased groundnuts mostly from cultivators for the manufacture of oil. Hence there is no doubt that he purchased groundnut for the purpose of manufacturing oil.\n\nWe shall now proceed to consider whether groundnuts are seeds and further whether they are oilseeds. In finding out the true meianing of term \"oilseeds\" found in the Sales-tax law in question, we are not to refer to dictionaries. We are to find out the meaning ascribed to that term in commercial parlance. See the decision of this Court in Commissioner of Sales Tax, Madhya\n\nPradesh, Indore v. Jaswant Singh Charan Singh (19 S.T.C. 469) ..\n\nThere can hardly be any doubt that in commercial circles growljfnut is dealt with as oilseed. The commercial journals and newspapers while quoting the market price of oilseeds list groundnuts 'as one of the species ol oilseeds. From this, it is clear that in rommercial circles groundnut is treated as oilseed.\n\nA seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. The next question .is whether it is generally used for manufacture of -oil.\n\nHere agam, there can hardly be any doubt that groundnut is mostly used for 1the manufacture of groundnut oil which is used in the\n\nanufacture of Dalda and other cooking media. Groundnut ts one of the items which is mostly used in this country for the manufacture of cooking media.\n\nIn '?ur opinion, bolh; the Madhy:a Pradesh High Court and ithe Pun1ab & Haryana High Court were wrong in holding that groundnut is not oilseed. ·\n\nFor the reasons mentioned above, this appeal iS dismissed with B costs •\n\n.G.C.\n\nAppeal dismiued.", "total_entities": 21, "entities": [{"text": "AVADH SUGAR MILLS LTD", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "AVADH SUGAR MILLS LTD", "offset_not_found": false}}, {"text": "THE SALES TAX OFF1CER, SITAPUR & ANOTHER", "label": "RESPONDENT", "start_char": 27, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE SALES TAX OFFICER, SITAPUR & ANOTHER", "offset_not_found": false}}, {"text": "February 22. 1973", "label": "DATE", "start_char": 69, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "v.\n\nTHE SALES TAX OFF1CER, SITAPUR & ANOTHER\n\nFebruary 22."}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 90, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 103, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ", "label": "JUDGE", "start_char": 127, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Sales Tax Act 1948", "label": "STATUTE", "start_char": 153, "end_char": 171, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 509, "end_char": 522, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 528, "end_char": 548, "source": "ner", "metadata": {"in_sentence": "The Allahabad High Court rejected the contention."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1608, "end_char": 1636, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : CivHAppeal No."}}, {"text": "M. C. Chag", "label": "LAWYER", "start_char": 1813, "end_char": 1823, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, Suresh Sethi, Ji."}}, {"text": "Suresh Sethi", "label": "LAWYER", "start_char": 1827, "end_char": 1839, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, Suresh Sethi, Ji."}}, {"text": "Ji. K. Maheshwari", "label": "LAWYER", "start_char": 1841, "end_char": 1858, "source": "ner", "metadata": {"in_sentence": "M. C. Chag/a, Suresh Sethi, Ji."}}, {"text": "Maya Krirhan", "label": "LAWYER", "start_char": 1860, "end_char": 1872, "source": "ner", "metadata": {"in_sentence": "K. Maheshwari, Maya Krirhan and B. P. Maheshwari, for the appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 1877, "end_char": 1893, "source": "ner", "metadata": {"in_sentence": "K. Maheshwari, Maya Krirhan and B. P. Maheshwari, for the appellant."}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 1915, "end_char": 1930, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis ; ind 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 1940, "end_char": 1947, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondents."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 2014, "end_char": 2019, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by HEGDE, J ...... This is an appeal by certificate."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 2760, "end_char": 2785, "source": "ner", "metadata": {"in_sentence": "In support of that contention, he relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh, Indore v.\n\nBakhat Rai & Co. (18 S.T.C. 285) and the decision of a single B Judge of Punjab & Haryana High Court in Ha~ Raj .Choudhri\n\nv. J. S. Rajyana, Excise and Taxation Officer (19 S.T.C. 489)."}}, {"text": "Madhy:a Pradesh High Court", "label": "COURT", "start_char": 4785, "end_char": 4811, "source": "ner", "metadata": {"in_sentence": "ur opinion, bolh; the Madhy:a Pradesh High Court and ithe Pun1ab & Haryana High Court were wrong in holding that groundnut is not oilseed. ·"}}, {"text": "Pun1ab & Haryana High Court", "label": "COURT", "start_char": 4821, "end_char": 4848, "source": "ner", "metadata": {"in_sentence": "ur opinion, bolh; the Madhy:a Pradesh High Court and ithe Pun1ab & Haryana High Court were wrong in holding that groundnut is not oilseed. ·"}}]}
{"document_id": "1973_3_548_553_EN", "year": 1973, "text": "RAJENDRAPAUL RAMASARAN DASS SHARMA\n\nSTATE OF MAHARASHTRA ' February .23, 1973 [A. ALAGIRISWAMI, l. D. DUA AND C. A. VAIDIALINGAM, JJ.)\n\nWhether High Court should give a. :Jpeaking order in dismissing •1n appeal or merely disniiss the appeal in limine.\n\nThe appellant was running a Octroi Cleari, ing Agency at 'Mulund Check-Post' in th, e State of Maharashtra.\n\nHe used to attend to certain transactions of Montgomery Transport Co. also.\n\nOn December 16, 1968, a truck of the said transport copany arfived at the Check-Post with a machine to be delivered to M/IS. Imperial Tobacco Co.\n\nThe appellant i.nformed the Manager of the Transport Company to arrange for the payment of Octroi whii:::h amounted to mor_e than Rs. 8,000/-.\n\nAccordingly, a sum of Rs. 8,1961was haned over to the appe1lant in the J.'resence of the Driver of the truck.\n\nIt was found out after investigation that the receipt for the payment of Octroi held by the Imperial Tobacco Co. was not genuine a.00 on a complaint lodged by the Company, theappe11ant \\Vas arrested and committed for trial to the Court Of Sessions, under S. 467, 471 read With S. 467 and S. 420 of J.P .C.\n\nThe Trial Court convicted the appellant for an offence under s. 471 read with s. 467 I. P. C. and for an offe; rn::e under s. 420 I. P. C.\n\nThe appeal to the High Court was dismissed in limine with the word \"dismissed\". The _point raised before this Court was whether the High Court was justified in dismissing the appeal in limine with one word \"dismissed'', without making a speaking order indicating the reason-; for dismissal.\n\nRemandng the cas.e to the High Court for reheadng.\n\nHELD : (i) The importance of the opinion of the High Court on arguable points requiring consideration in appeal in that Court when questions of fact or law are open to challenge by the appellant . was emphasised more than 20 years ago by this Court in Mustaq Hussain\n\nv. The State of Bombay, [1953] S.C.R. 809.\n\nSinoo then, in a series of decision~ this Court has consistently drawn the attention of the High courts to the desirability of giving an indiCation of their views on ., te points . raised in rguable cases in ac<:ordait< with the legal position enunciated by .this Court.\n\n[552-AB.]\n\n(ii) In K. TS:. Jain v. State of Maharashtra, A.I.R. 1973\n\nS.C. 243 it was reiterated that . reason~ before the High Court for dismissing the appeal, if recorded, would be a valuable assistance to this Court in finally dismissing of the appeal on merits.\n\nAnother advantage of recording . iucb reasons is that the accused-appellant, who may not always be present in the court, would have , the satisfaction of knowing from the judgment that the points appropriately arising for cQooideration in his case, were actually argued and duly considered by this High Court while dismis!ling .his appeal. In the present case, since the High Court did not record its reasons for dismissing the appeal, this ceurt has no option but to remaJl(! the case to the High Court for rehearing and deciding the appeal after considering the points raised and\n\nrecording its reasons in accordanee with law. [S52FG&553AJ\n\nRAJBNDRAPAiJL v. STATE (Dua, J,) SU\n\nMustaq Husmin v. State of Bombay, [19S3] S.C.R. 809, iind K. K. lain v. State of Maharashtra, A.LR. 1973 S.C. 243, refetkd to.\n\nCRIMINAL APPELLATE JuRisDICTION : Criminal Appeal No. 264 of 1972.\n\nAppeal by special leave from the judgment and order dated March 6, 1972 of the Bombay High Court at Bombay in Cr. A.\n\nNo. 164 of 1972.\n\nM. N. Sharma, for the appellant.\n\nS. B, Wad and Rine Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nDUA, J .-The appellant in this appeal by special leave was tried in the court of Session for Greater Bombay !ft Bombay for offences under s. 467, under s. 471 read withs. 467 and under s.\n\n420, I.P.C. Accordiilg to the prosecution the appellant was running an octroi clearing agency under the name and style of \"National Octroi Clearing Agency\" at the Mulund check-post. He used to attend to certain transactions relating to the transport companies, one of those companies being the Montgomery Transport Com pany. On December 16, 1962 a truck belonging to the said transport company bearing no. MPR 2147 arrived at the check-post carrying a Depleix Machine to be delivered to Messrs Imperial Tobacco Company. There were two drivers and one cleaner in the truck. On being approached by them the appellant telephoned to manager Bakshi of the Transport Company to arrange for the payment of octroi which amounted to more than Rs. 8,000/-. The Manager, Bakshi and Director, Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs. 8,196/· for the octroi reached the Mulund Check-post. The amount was handed over to the appellant in the presence ofthe driver. Actually only Rs. 8,1801were required for the o_ctroi with the.result that Rs. 16 I were paid back to Messrs Imperial Tobacco Company by means of a cheque. During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs Pure Drinks Private Ltd., it came to light that proper octroi had not been paid on December 17 ,.\n\n1968 in respect of the transaction in question in the present case.\n\nThe Assistant Assessor and Collector, Shri Karkhanis, after sending his superintendent Govind Charan to the office of Messrs Imperial Tobacco Company he hilriself also visited the Company's office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine.\n\nHaving failed to trace the necessary relevant docume]lts in the . office files Shri Karkhanis lodged the complaint in February, 1969 and a case\n\n3-L161Sup. Cl/73 •\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll.\n\nwas registered.: After preliminary nquiry under Cb. XVIll A Cr. P.C. the appellant was committe4 for trial to the court. of Session. According to the trial court the following points arose for detennination :\n\n\"l. Whether it is proved that the receipt, Article A is a forged document ?\n\n2. Whether it is proved thait it is the accused who forged that receipt with intent .to commit fraud ?\n\n3. Whether it is proved that rthe accused used this receipt as genuine knowing it to be forged ?\n\n4. Whether U is proved that he cheated the Bombay\n\nMunicipal Corporation, as alleged ?\n\nS. Whether it .is proved that the accused cheated the Imperial Tobacco Co. of India Ltd., as alleged?\" The conclusions of the trial court on these points were :\n\n\"l. Ln the affirmative ..\n\n2. Not proved.\n\n3. In the affirmativ~.\n\n4. In the affirmative.\n\nS. Not proved.\"\n\nThe evidence in this case is mai:i'ln~ not wholly, circumstantial and about 20 witnosses wer& ex including a handwriUna expert. The trial court felt that the case required evaluation of the evidence of. Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expett (P. W. 17) . Driver Balwant Singh was riot examined in the case. The trial . court in a lengthy judP.Jlent exhaustively discussed the evidence of these witnesses. It did not plac.e implicit reliance either on Bakshi (P .W. 4) or on Inderjit Singh (P.W. 18) 11$ indeed in the testimony of both of them the trial court found partly' reliable and pattly unreliable statements.\n\nThe court did not feel inclined to hold that their evidence was wholly unreliable. On evaluation' of the evidence of the Hand writing Expert the ttial court felt that the receipt in questjon could not necessarily be held to have beQll forged by the appellant. Afte'r tDJS 'ObServation follows the following passage ijl tl:!e jUdgment :\n\n\"I do not, however, feel that this earns an acquittal for him. The direct charge regarding the forgery could be taken as not proved we will have however to .weigh the other evidenco for findin.J out whether he could have used the document Which JS nece$sarily a foged docu ment, as a genuine document. For this Jlurpose we will have to apJ)reciate the evidence of the twO witnesses .\n\nabout whom I have spoken quite a long time and we have also to appreciate the interval of time, What exactly the accused did within that half an hour when he took the money and returned, will have to bo surmised, particularly ip. the absence of categorical evi dence showin¥ that the disputed receipt is executed by him. The evtdence shows, it is a forged reqeipt. It is not prepared at tho counter. We may not be sure in finding out as to who wrote it. The accused may have had his associates ii he himself has not written it. Considering the way in which coumers are stated to be working, considering the amount involved and the short time limit when the accused reappeared legitimate payment across the counter will have to be ruled out. That is not even suggested on behalf of the accused. He may have his own collaborators. If we accept the version, which I do, then it was this receipt which was in the .hands of the accused that was given over to the driver and from there bnwards it reached the firm Messrs Imperial Tobacco Co. of India Ltd. I feel, the accused ought to be supposed to be aware that the real payment was made and what he carried could not be tho real receipt.\n\nIt is for this reason that I am feeling that the charge of using a forged receipt knowing it to be forged could be brought home to him.\"\n\nThe trial court thereafter dealt with the charges of chDating and ultimately convicted the appellant for offence under ss. 471 read with 467, I.P.C. and for an offence under s. 420, I.P.C. Under the former he was sentenced to five years' rigorous imprisonment and a fine of Rs, 500/. with six months' further rigorous imprisonment in case of default. Under. s. 420 he was sentenced to rigorous imprisonment for two years. The substantive sentences were directed to be concurrent.\n\nThe appeal to the High Court was dismissed in limine with one word \"Dismissed\".\n\nBefore us on appeal by special leave the short point but one G of vital importance to the appellant requiring our decision is whether the High Court was justified oo the facts and circumstances of this case in unceremoniously dismissing the appeal in limiM . with one word \"Dismissed\" without making a speaking order indi\n\ncating the reasons for the dismissal. The facts briefly stated by °' and .a close study of the lengthy judgment of the trial court quite H clearly show that the appeal in the High Court did raise pointl which were ID.Ot only arguable but were aJSo substantial requiring critical scrutiny and serious appraisal and -evaluation of the prosecution evidence and the circumstances of. the case. The impor\n\nSUPREME COURT RBPOR TS [1973] 3 S, C.ll.\n\ntance of, the opinion of the High Court on arguable points requiring consideration on appeal iin that court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Couit in Mushtak f:t1sseln v. The State of Bombay(') when Mahajan J., (as he then was) observed at p, 820:\n\n\"With great respect we are however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred br, the appellant to that court summarily, as it certainly raised some arguable points which required consideration 'though we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of die High Court on such points in special leave petitions under article 1315 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion.\"\n\nSince then in a series of decisions (quite a number of them reported and several unreported) this Court has consistently drawn the attention of the High Courts to the eminent desirability of giving an indication of their views on the points raised in arguable cases in accordance with the legal position enunciated by this Court.\n\nSuch a course is normal in cases which raise fairly arguable questions of fact or law. In one of the latest decisions of this Court in K. K. Jain v. State of Mahaiashtra(') some of the earlier decisions were again noticed and it was considered necessary to repeat the emphasis laid on ithe. necessity of recording reasons by the High Court for dismissing appeals raising questions which cannot be considered to bie unsubsta.ntial or not arguable. In that decision it was reiterated, inter alio, that reasons prevailing with the High Court for dismissing the appeal, if recotded, would have been of valuable assistance to this Court in finally disposing of the appeal on merits.\n\nAnother advantage of recording such reasons is that the accused-appellant who may not always be present in court would have the satisfaction of knowing from the judgment that the points appropriately arising for consideration in his case were actually argued a.nd only considered by the High Court while dismissing . his appeal. This would, inter alia, tend to promote confidence of the parties concerned in our judicial process. In the present case had lhe High Court recorded its reasons for dismissing the appeal it would have better enabled the appellant's lawyer to consider the advisibility of appealing\n\n(!) [1953) S.C.R. 809.\n\n(2) A.I.R. 1973 S.C. 243.\n\nunder Art. 136 of the Constitution and after filing the appeal would have afforded valuable assistance both to the counsel appear ing in this Coi:rt .and to us in the final disposal of the appeal without feeling the necessity of remanding the case to the High Court for re-hearing.\n\nThe remand no doubt must result in further delay in the final disposal of the appellwt's appeal in the High Court and this indeed is regrettable. But in the absence of the opinion ol\n\nthe High Court which that Court was under the law expected to record we are left guessing abput the line of reasoning the High Court would have adopted after appropriate scrutiny of the evi dence on the record. The appellant is entitled to have a proper\n\ndeision on the points arising in his appeal by the High Court on due appraisal of the evidence in accordance with Jaw. The legal position on the point in .question has been authoritatively settled\n\nand declared by this Court and the same has been frequently reite rated in its decisions. The law reports are so full of them that it appears to us to be somewhat surprising that the counsel appearing in the appeal in the High Court should have been unaware of it.\n\nIt, however, does seem that the attention of ithe High Court was not drawn to these decisions, for had that Court been apprised of the law as authoritatively declared by this Court, it is inconceivable that the present appeal .would still have been dismissed without indicating the reasons in support of it. Had the High Court recorded reasons the delay necessitated by this remand could have been avoided. But in the circumstances we have no optioll but to allow the appeal and remand the case to the High Court for re hearing and deciding the appeal after considering the points raised a.nd recording its reasons in accordance with law. We have taken care not to express any opinion on the merits of the case either way.\n\nIt is hoped that this appeal would now 1* disposed of by the High Court expeditiously and without avoidable delay.\n\nSC.\n\nAppeal allowed.", "total_entities": 46, "entities": [{"text": "RAJENDRAPAUL RAMASARAN DASS SHARMA", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "RAJENDRAPAUL RAMASARAN DASS SHARMA", "offset_not_found": false}}, {"text": "February .23, 1973", "label": "DATE", "start_char": 59, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "RAJENDRAPAUL RAMASARAN DASS SHARMA\n\nSTATE OF MAHARASHTRA ' February .23, 1973 [A. ALAGIRISWAMI, l. D. DUA AND C. A. VAIDIALINGAM, JJ.)"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 79, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "l. D. DUA", "label": "JUDGE", "start_char": 96, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "e State of Maharashtra", "label": "RESPONDENT", "start_char": 337, "end_char": 359, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "Montgomery Transport Co.", "label": "ORG", "start_char": 407, "end_char": 431, "source": "ner", "metadata": {"in_sentence": "He used to attend to certain transactions of Montgomery Transport Co. also."}}, {"text": "December 16, 1968", "label": "DATE", "start_char": 442, "end_char": 459, "source": "ner", "metadata": {"in_sentence": "On December 16, 1968, a truck of the said transport copany arfived at the Check-Post with a machine to be delivered to M/IS."}}, {"text": "Imperial Tobacco Co.", "label": "ORG", "start_char": 564, "end_char": 584, "source": "ner", "metadata": {"in_sentence": "Imperial Tobacco Co.\n\nThe appellant i.nformed the Manager of the Transport Company to arrange for the payment of Octroi whii:::h amounted to mor_e than Rs."}}, {"text": "S. 467, 471", "label": "PROVISION", "start_char": 1096, "end_char": 1107, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 467", "label": "PROVISION", "start_char": 1118, "end_char": 1124, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 420", "label": "PROVISION", "start_char": 1129, "end_char": 1135, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 471", "label": "PROVISION", "start_char": 1209, "end_char": 1215, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 467", "label": "PROVISION", "start_char": 1226, "end_char": 1232, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 420", "label": "PROVISION", "start_char": 1271, "end_char": 1277, "source": "regex", "metadata": {"statute": null}}, {"text": "Sinoo", "label": "OTHER_PERSON", "start_char": 1944, "end_char": 1949, "source": "ner", "metadata": {"in_sentence": "Sinoo then, in a series of decision~ this Court has consistently drawn the attention of the High courts to the desirability of giving an indiCation of their views on .,"}}, {"text": "S52F", "label": "PROVISION", "start_char": 3113, "end_char": 3117, "source": "regex", "metadata": {"statute": null}}, {"text": "M. N. Sharma", "label": "LAWYER", "start_char": 3495, "end_char": 3507, "source": "ner", "metadata": {"in_sentence": "M. N. Sharma, for the appellant."}}, {"text": "S. B, Wad", "label": "LAWYER", "start_char": 3529, "end_char": 3538, "source": "ner", "metadata": {"in_sentence": "S. B, Wad and Rine Sachthey, for the respondent."}}, {"text": "Rine Sachthey", "label": "LAWYER", "start_char": 3543, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "S. B, Wad and Rine Sachthey, for the respondent."}}, {"text": "DUA", "label": "JUDGE", "start_char": 3623, "end_char": 3626, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDUA, J .-The appellant in this appeal by special leave was tried in the court of Session for Greater Bombay !"}}, {"text": "s. 467", "label": "PROVISION", "start_char": 3761, "end_char": 3767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 471", "label": "PROVISION", "start_char": 3775, "end_char": 3781, "source": "regex", "metadata": {"statute": null}}, {"text": "s.\n\n420", "label": "PROVISION", "start_char": 3808, "end_char": 3815, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3817, "end_char": 3822, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Montgomery Transport Com pany", "label": "ORG", "start_char": 4106, "end_char": 4135, "source": "ner", "metadata": {"in_sentence": "He used to attend to certain transactions relating to the transport companies, one of those companies being the Montgomery Transport Com pany."}}, {"text": "December 16, 1962", "label": "DATE", "start_char": 4140, "end_char": 4157, "source": "ner", "metadata": {"in_sentence": "On December 16, 1962 a truck belonging to the said transport company bearing no."}}, {"text": "Imperial Tobacco Company", "label": "ORG", "start_char": 4306, "end_char": 4330, "source": "ner", "metadata": {"in_sentence": "MPR 2147 arrived at the check-post carrying a Depleix Machine to be delivered to Messrs Imperial Tobacco Company."}}, {"text": "Bakshi", "label": "OTHER_PERSON", "start_char": 4449, "end_char": 4455, "source": "ner", "metadata": {"in_sentence": "On being approached by them the appellant telephoned to manager Bakshi of the Transport Company to arrange for the payment of octroi which amounted to more than Rs."}}, {"text": "Inderjit Singh", "label": "OTHER_PERSON", "start_char": 4593, "end_char": 4607, "source": "ner", "metadata": {"in_sentence": "The Manager, Bakshi and Director, Inderjit Singh went to the Imperial Tobacco Company the following day and after getting Rs."}}, {"text": "Messrs Pure Drinks Private Ltd.", "label": "ORG", "start_char": 5100, "end_char": 5131, "source": "ner", "metadata": {"in_sentence": "During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs Pure Drinks Private Ltd., it came to light that proper octroi had not been paid on December 17 ,."}}, {"text": "December 17 ,.", "label": "DATE", "start_char": 5190, "end_char": 5204, "source": "ner", "metadata": {"in_sentence": "During the investigation of another case arising out of an alleged forged receipt relating to octroi in respect of some imports by Messrs Pure Drinks Private Ltd., it came to light that proper octroi had not been paid on December 17 ,."}}, {"text": "Karkhanis", "label": "OTHER_PERSON", "start_char": 5318, "end_char": 5327, "source": "ner", "metadata": {"in_sentence": "The Assistant Assessor and Collector, Shri Karkhanis, after sending his superintendent Govind Charan to the office of Messrs Imperial Tobacco Company he hilriself also visited the Company's office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine."}}, {"text": "Govind Charan", "label": "OTHER_PERSON", "start_char": 5362, "end_char": 5375, "source": "ner", "metadata": {"in_sentence": "The Assistant Assessor and Collector, Shri Karkhanis, after sending his superintendent Govind Charan to the office of Messrs Imperial Tobacco Company he hilriself also visited the Company's office and they both felt that the receipt for the payment of octroi held by the said Company was not genuine."}}, {"text": "Imperial Tobacco Co. of India Ltd.", "label": "ORG", "start_char": 6413, "end_char": 6447, "source": "ner", "metadata": {"in_sentence": "S. Whether it .is proved that the accused cheated the Imperial Tobacco Co. of India Ltd., as alleged?\""}}, {"text": "Bakshi", "label": "WITNESS", "start_char": 6832, "end_char": 6838, "source": "ner", "metadata": {"in_sentence": "Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expett (P. W. 17) ."}}, {"text": "Inderjit Singh", "label": "WITNESS", "start_char": 6849, "end_char": 6863, "source": "ner", "metadata": {"in_sentence": "Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expett (P. W. 17) ."}}, {"text": "Handwriting Expett", "label": "WITNESS", "start_char": 6878, "end_char": 6896, "source": "ner", "metadata": {"in_sentence": "Bakshi (P.W. 4), Inderjit Singh (P.W. 18) and Handwriting Expett (P. W. 17) ."}}, {"text": "Balwant Singh", "label": "WITNESS", "start_char": 6917, "end_char": 6930, "source": "ner", "metadata": {"in_sentence": "Driver Balwant Singh was riot examined in the case."}}, {"text": "ss. 471 read with 467", "label": "PROVISION", "start_char": 9437, "end_char": 9458, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9460, "end_char": 9465, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 420", "label": "PROVISION", "start_char": 9492, "end_char": 9498, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9500, "end_char": 9505, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 420", "label": "PROVISION", "start_char": 9676, "end_char": 9682, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 10927, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "tance of, the opinion of the High Court on arguable points requiring consideration on appeal iin that court when questions of fact or law are open to challenge by the appellant was emphasised more than 20 years ago by this Couit in Mushtak f:t1sseln v. The State of Bombay(') when Mahajan J., (as he then was) observed at p, 820:\n\n\"With great respect we are however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred br, the appellant to that court summarily, as it certainly raised some arguable points which required consideration 'though we have not thought it fit to deal with all of them."}}, {"text": "article 1315", "label": "PROVISION", "start_char": 11626, "end_char": 11638, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 13452, "end_char": 13460, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_554_561_EN", "year": 1973, "text": "CONTROLLER OF ESTATE DUTY, MADRAS v.\n\nC. R. RAMACHANDRA GOUNDER\n\nFebruary 27, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nEstate Dut, v Act (34 of 1953), s. IQ-Scope of.\n\nThe father of the r.espondept was a partner in a firm.\n\nHe owned property which the firm was occupying as a tenant at will.\n\nJn 1953 he executed a deed. of settlement under which he transferred that prop.erty to two of his sons absolutely and irrevocably.\n\nAfter the transfer the firm continued as tenant paying rent to tihe two donees by\n\ncredittng each of tir accounts in the account books of the firm in\n\nrqutl shares. The father also wrote to the firm to transfier from his account five sums of Rs. 20,000 each with effect from April, 1953, to the credit of his five sons in the firm's books.\n\nThe sons did llOt withdra\\v any amount from their accounts in the firm and the amounts continued to be invested in the firm for which interest at 7 l % per annum \\\\'as paid to them. The father continued to be a partner of the firm even after the transfr rill 1957, when the firm was dissolved.\n\nOn his death thereafter the property leased out to the firm .which was transferred to two of his sons as well as Rupees o~ lakh gifted to the five sons, were sought to be included in the estate of the deceased on the ground that the donees had not been in possessiOJl and enjoyment of the subject matter of the gifts to the entire exclusion of the donor within the meaning of s. 10 of the Estate Duty Act, 1953.\n\nThe High Court. on reference, held against the Revenue.\n\nDismissing the a.ppeal to this Coud.\n\nHELD : Neither the property gifted to the dQJ1Ces nor the amount of Rs. 1 lakh, gifted to the five sons could be included in the estate of the deceased. f81A-B]\n\nSection 10 consists of two conditions, namely, (1) the donee must bona fide have assumed possession and enjoyment of the property which is the subject matter of the gift to the exclusion of 1lhe donor immediately upa, l the gift and (2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of lhe donor or of any _benefit to him by contract or oth, erw'ise; and unless both are satisfied the property would be liable to Estate duty. 1-;, e second part of the section has two limbs, namely, the decead must be entirely excluded, (a) from the propefty, and (b) ffom any benefit by contra.ct or otherwise. The word \"otherwise\" must be cvnstrued ejusdem generis and it must be interpreted to mean sOme kind of 1egal obligation or some transaction enforceaWie at law Or in equity, which, . though iiot in the form of a contract, may confer a benefit on the donor. [557F-H; 558A-Cl\n\nIn the present case, the first two conditions are satisfied because of the unequivocal transfer of the properties and the last limb of the condition relating to any benefit to the do:nor by contract or otherwise is .inapplicable. The donor. on the date when he gifted the property\n\nh1ch was leased out. to the firm~ had two rights. namely, o.wnership in te property and nght to terminate the tenancy aJld obtain posses-\n\nCONTROLLER ESTATE DUTY v. RAMACHANDRA 555 (Jaganmohan Reddy, J.) sion thereof.\n\nHe has transferred the ownership and has given such POSBession as the circumstances and the nature of the propefty admit.\n\nIt could not be said that since the d<n>r was a partner in the :firm which had taken the property on lease, he derived benefit therefrom and was therefore not entirely excluded from the possession and enjoyment thereof. The benefit the donor had as a member of the partnership was not a benefit referable in any way to the gift but is unconnected therewith. [558CAJ\n\nGeorge Da <; osta v. Controller of Estate Duty, Mysore, 63 I. T. R. 497, followed.\n\nMunro &nd Others v. CommisJioner of Stamp Duties, [1934] A.C. 61, Clifford John Chick and Another v. Comfnissioneir of Stamp Duties, 37 I.T.R. (E.D.) 89 and Commissioner of Stamp Duties of New South Wales v. Perpetual Trustee Company Limited, [1943] A.C. 425, referred to.\n\nController of Estate Durv, Mysore v.\n\nAswath.anurayana Setty and Another, 72 I.T.R. 29, approved.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1391 of 1970.\n\nAppeal by certificate from the judgment and order dated November 25, 1968 of the Madras High Court in Tax Case No. 103 of 1965.\n\nB. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the Appellant.\n\nT. A. Ramachandran, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nJAGANMOHAN REDDY, J.-This appeal is by certificate against the judgment of the Tamil Nadu High Court. which has answered the following two questions referred to ii, in favour of the assessee and against the Revenue :\n\n(1 ) Whether on the facts and in the circumstances\n\nol 1he case the Tribunal was right in law in kolding that the house property in Avanashi Road. Coimbatore, is not liable to estate duty as property deemed lo pass on the death of the deceased under section 10 of the Estate Duty Act, 1953 ?\n\n(2) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the sum of Rs. 1 la~ gifted by the H deceased to his sons in 1953 is not liable to estate duty as property deemed 10 pass on the death of the deceased under section 1 O of the Estate Duty Act, 1953 ?\n\nThese questions arose on the facts set out in the statement of tl\\o\n\ncas.e which are : one Ramaiah Gounder was a partner in the fum called N. Desai Gounder & Co., Coimbatore. He owned property which the firm was occupying as tenant-at-will. In August 1953, he executed a deed of settlement under which he transferred t4e property leased out to the firm to his two sons Lingish and Krishnan, absolutely and irrevocably. After this transfer, the firm continued to be in occupation of the premises paying rent thereof at Rs. 300/- p.m. to the two donees by crediting each of their accounts in the account books of the firm in equal shares.\n\nIt may be mentioned that Ramaiah the father continued to be ll partner of the firm even after the transfer till April 13, 1957, when the firm was dissolved.\n\nHe had also an account with the firm Desai Gounder & Co., and on March 30, 1953, he requested the firm by a letter to transfer from his account five sums of Rs. 20,000/- each with effect from Aprill, 1953 to the credit of\n\nhis five sons in the firm's books. He also wrote to the five sons informing them of the transfer.. Though the sons did not withdrl!VI'. any amount from their accounts in the firm, the amounts continued to be invested in the firm for.which interest at 7t% per annum was paid to them.\n\nOn the death of. Ramaiah Gounder on May 5, l957, the Assis tant Controller of Estate Duty, included in the estate of the de\n\nceased, the property leased out to the firm which was transfelT!'ll to his two sons. According to him, possession and enjoyment of the subject-matter of the gift had not been assumed by the donees mor had they retained possession thereof to the entire exclusion of the donor, inasmuch as the partnership in which the donor was a partner with other parties, continued to be in possession and enjoyment of the gifted property as tenants at will of the donees.\n\nWith respect to the gift of Rs. 1 lakh to the five sons of the d.,_ ceased, the Assistant Controller held that the qonees had not be!; n\n\nin possession and enjoyment of the subject-matter of the gift to the entire exclusion of the donor within tb_e meanil)g of s. 10 of the Estate Duty Act. He, therefore, included tl)is sum of. Rs. 1 lakh in the principal value of the est\". of the c;!eceased.\n\nThe accountable persons aeJ?ealed to the Appellate Controller who confirmed the said inclusion.\n\nThe Tribunal on a further appeal, however, disagreed with the findings of.\"tne Assistant Controller and the Appellate Controller.\n\nIt hel<i that the firm, of which. the d.eceased was a: partnec, occupied the property but thirt such interest was not as owner of the property, and therefore, the gift ha.d b~ made without the nor retaining a, ny interest, as much it could 1not be inchided in the estate ot the deceased under s. 1 O of the Estate Duty Act. It f.ur:lber hp!\\{ t®t the sum of Rs. 1 lakh gifted to the sons was givc; a by t\\le sons to the firm\n\nC'.ONTROLLER ESTATE DUTY v. RAMACHANDRA 5 57 (Jaganmohan Reddy, J.) which had benefit of the money and that the fa1her could not be\n\nsaid to have enjoyed the benefit of the money as partner of the firm.\n\nIn this view, the Tribunal excluded the sum of Rs. 3 lakh from the esfate of the deceased.\n\nThe High Court agreed with these findings.\n\nIt is contended before us by the learned Advocate for the Revenue that both the Tribunal and the High Court were in error in holding that the property as well as the sum of Rs. 1 lakh were enjoyed by the donees to the exclusion of the donor or that the . deceased did not derive blenefit therefrom within the meaning of s. 10 of the Estate Duty Act, because, firstly, the donor was a partner in the firm which had occupied the property as tenants-atwill even after the gift, and secondly, the amount of Rs. 1 lakh, though entered in each of the accounts of the donor's five sons in the books of the firm, w!ls not utilised or enjoyed by them in any manner. Section 10 of the Estate Duty Act, as in .force on the date of the death of the deceased, was as follows :\n\n\"IO. Property taken under any gift, whenever made, shall be deemed to pass on the donor's dea'th to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of rthe donor of any benefit to him by contract or otherwise;\n\n\"Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any !Jkonefit to him for at least two years before the death : .......... \" The crux of the above section as pointed out by this Court in George Da Costa v. Controller of Estate Duly, Mysore,(') lies in two parts : ( 1) the donee must bona fide have assumed possession\n\nand. enjoyment of the property which is rthe subject-matter of the gift to the exclusion of the donor, immediljtely upon the gift; and\n\n(2) the donee must have reta.ined such possession and enjoywenl of the property to the entire exclusion of the donor or of any benefit to him by contract or otherwise.\n\nBoll) these COl)ditions are cumulative. Unle.ss each of these conditions is satisfied, the property would be liable to estate du.ty unqer s. 10 of the Act. The second part of the section has two llmbs: ti)e deceased must be\n\neritily. excluded (i) f; om th~ property, and (ii) from ny ~! by contract or ot!Jerw1se. The words \"by contra~! or otherwise' ii)' th~ second limb! of the section will not control the, words ''tv\n\n(!.) 63 I.T.R,. 497, at p. SOI.\n\nthe entire exclusion of the donor\" in the firs't limb. The first limb may be infringed if the doillor occupies or enjoys the property or its income, .even though he has no right to do so which he could legally enforce against 'the donee. In other words, in. order to attract the section, it is not necessary that the possess10n of the donor of the gift mus't be referable to some contractual or other arra'!lgement enforceable in law or in equity. In the conte.xt of the section, the word \"otherwise\" should be construed ejusdem generis and it must be ill'terpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity, which, though not in the forni of a contract, may confer a benefit on the donor.\n\nThere is no doubt on the facts of this case, the first two conditions are satisfied because there is an unequivocal transfer of the property and also of the money, in the Oille case 1jy a settlement deed, and in the other by crediting the amount of Rs. 20,000/- in each of the sons' account with the firm which thenceforward became liable to the sons for the payment of the said amount and the interest at 7t% per annum thereon. In these circumstances, the Revenue has failed to establish that the donees had not retained possession and enjoyment of the property or the amount and that the deceased was not entirely excluded from the possession and enjoyment thereof. The last limb of the condition relating to any benefit to the donor by contract or otherwise is inapplicable in this case. The donor on the date when he gifted the property to his sons which was leased out to the firm, had two rights, namely, of ownership in the property and the right to terminate the tenancy and obtain the possession thereof. There is no dispute that the ownership has been transferred subject to the tenancy at will granted to the firm, to the donor's two sons because 1he firm from thenceforward had attorned to the donees as their tenant by crediting the rent of Rs. 300/. to the respective accounts in equal moity. The donor could, therefore, only transfer possession of the property which the nature of that property was capable of, which in this case is subject to the tenancy. He could do nothing else to transfer the pc-ssession in any other manner unless he was required to effectuate 'the gift for the purpose of s. 10 of the Act by getting the firm to vacate the premises and lianding-0ver possession of the same to the donees leaving the donees thereafter to lease it out to the firm.\n\nEven then the objection of the learned Advocate that since the donor was a partner in the firm which had taken the property on lease, he derived benefit therefrom and was, therefore, not entirely excluded from the possession and enjoyment thereof, will neverthel.ess remaiin unsatisfied. To get over such an objection,\n\nte donees will have to lease out the property after getting possession from the firm to some other person totally unconnected with the donor.\n\nSuch an unreasonable requirement the law does not\n\nCONTROLLER ESTATE DUTY v. RAMACHANDRA 559 (Jaganmohan Reddy, J.) postulate. The possession which the donor can give is the legal possession which the circumstances and 1the nature of the property would admit. 1his he has given. The benefit the donor had as a member of the partnership, was not a benefit referable in any way to the gift but is uncon.ne()!ed therewith.\n\nThe Privy Council in Munro and others v.\n\nCommissioner of Stamp Duties(') was dealing .with a case oi a similar nature. The donor in that case by six registered transfers in the form prescribed, transferred by way of gift all his right, title and interest in portions of the land . to each of his four sons and .to trustees for each ol' his two daughters and their children.\n\nThe four sons and the two daughters were, prier to this transfer, on a verbal agreement with the donor, treitted as partners of the busi.ness carried on by him as grazier of the land owned by him. The evidence showed that 1the transfers were taken subject to the partnership agreement and on the understanding that any partner could withdaw and work his land separately. On an analogous provision of the law, the Privy Council thought it unnecessary to determine the precise nature oi the right of the partnership at the time of the transfers because it was either a tenancy during the term of the partnership or a licence coupled with an interest. Lord Tomlin, giving his opinion, observed at p. 67, that \"the benefit which the donor had as a member of the partnership in the right to which the gift was subject was not in their Lordships' opinion a benefit referable bn any way to the gift\". This decision was referred to and distinguished in O/ifford John Chick ant! another v. Commissioner of Stamp Duties('), and though it was. considered to have no application to the case at point, Viscount Simonds oterved at p. 97 : \"It must often be a matter of fine distinction \"'hat is the subject-matter of gift. If, as in Munro's case, the gift is of a property shorn of certain of the rights which appertain to complete ownership, the donor cannot, merely because\n\n'le remains in possession and enjoyment of those rights, be said within the meaning of the section not to be excluded from possession and enjoyment of that which he has given.\" In the Commissioner of Stamp Duties of New Sov/h Wales v.\n\nPerpetual Trustee Company Limited(') .. the Privy Council further elaborated the concept of the nature of possession required to be given to the donee as not to attract the analogous provisions of the Commonwealth Act. Lord Russel of Kill ow en observed at p. 440 :\n\n\"The linking of possession with enjoyment as a com - posite object which has to be assumed by tile donee indicate. •hat the possession and enjoyment contemplated is\n\nben~,.dal possession and enjoyment by the object of the donor's bounty ................ because the son was (through the medium of the trustees) immediately put\n\n(I) [1934] A.C. 61.\n\n(2) 37 l.T.R. [E.D.] 89 (3)\n\nS'JPREME COURT REPORTS\n\n[1973] 3 S.C.R.\n\nin such bona fide beneficial possession and enjoyment of the property comprised in the gift as the nature of the gift and the circumstances permitted. Did he assume it, and thenceforth retain it to the entire exclusion of the donor ? The answer, itheir Lordships think, must be in the affirmative, and for two reasons : ( 1) the settlor had no enjoyment and possession and enjoyment as he had from the .fact that the legal ownership of the shares\n\nveted in him and his co-trustees as joint tenants, was had by him solely on behalf of the dooee. In his capacity as don6r he was entirely excluded from possession and enjoyment of whai he had given to his son.\n\nDid the donee retain possession and enjoyment to the entire exclusion of anv benefit to the settlor of whatever kind or in any way whatsoever ? Clearly yes.\" .\n\nThe views expressed by the Privy Council are in complete accord with our views already expressed.\n\nThis was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana &tty and another('), where a Bench of the Mysore High Court considered both the case of Olifjord John Chick and of . Munro above referred to. In that case, on June 30, 1954, the deceased transferred to his two sons Rs. 57,594 l:\\feing half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm. On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of s. 10\n\nof the Estate Ducy Act, which decision was confirmed by the Appellate Controller. The Tribunal, however, held that the sum which subsequently was rectified to be Rs. 73,695 was not so includible.\n\nOne of us (Hegde, J., as he then was), speaking for the Bench, <>bserved at p. 32 :\n\n\"On the .facts of the case, it cannot be said that, after the gifts, the donees did not retain the property ifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted. That in order that the property could deem fo pass and estate duty could be leviaWe in such cases, the benefit of the donor must be a benefit referable to his own property. The view, that if it is once found ithat the deceased had some benefit in the property, that in itself was sufficient to bring the case wit!Jjn the ambiJ of section 10 imspective of the question whe>ther that benefit was referable or not referable to the gift, in our opinion, is erroneous.\"\n\n(1) 72 l.T.R. 29\n\nCONTROLLER ESTATE DUTY v. RAMACHANDRA 561 (Jaganmohan Reddy, J.) In our view, neither the property gifted to the donees, nor the amount of Rs. 1 lakh gifted to the five sons, could be included in the estate of the deceased. The appeal is accordingly dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 47, "entities": [{"text": "CONTROLLER OF ESTATE DUTY, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "CONTROLLER OF ESTATE DUTY, MADRAS", "offset_not_found": false}}, {"text": "C. R. RAMACHANDRA GOUNDER", "label": "RESPONDENT", "start_char": 38, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "C. R. RAMACHANDRA GOUNDER", "offset_not_found": false}}, {"text": "February 27, 1973", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "CONTROLLER OF ESTATE DUTY, MADRAS v.\n\nC. R. RAMACHANDRA GOUNDER\n\nFebruary 27, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 85, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "K.S. 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KHANNA, JJ.", "label": "JUDGE", "start_char": 122, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1460, "end_char": 1465, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 1473, "end_char": 1494, "source": "regex", "metadata": {}}, {"text": "Section 10", "label": "PROVISION", "start_char": 1754, "end_char": 1764, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "Jaganmohan Reddy", "label": "JUDGE", "start_char": 3141, "end_char": 3157, "source": "ner", "metadata": {"in_sentence": "namely, o.wnership in te property and nght to terminate the tenancy aJld obtain posses-\n\nCONTROLLER ESTATE DUTY v. RAMACHANDRA 555 (Jaganmohan Reddy, J.) sion thereof.", "canonical_name": "Jaganmohan Reddy"}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 4316, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the Appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4329, "end_char": 4340, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the Appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4345, "end_char": 4359, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the Appellant."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 4381, "end_char": 4399, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran, for the respondent."}}, {"text": "JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 4466, "end_char": 4482, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nJAGANMOHAN REDDY, J.-This appeal is by certificate against the judgment of the Tamil Nadu High Court.", "canonical_name": "Jaganmohan Reddy"}}, {"text": "section 10", "label": "PROVISION", "start_char": 4934, "end_char": 4944, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 4952, "end_char": 4973, "source": "regex", "metadata": {}}, {"text": "section 1", "label": "PROVISION", "start_char": 5243, "end_char": 5252, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 5262, "end_char": 5283, "source": "regex", "metadata": {}}, {"text": "Ramaiah Gounder", "label": "OTHER_PERSON", "start_char": 5378, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "These questions arose on the facts set out in the statement of tl\\o\n\ncas.e which are : one Ramaiah Gounder was a partner in the fum called N. Desai Gounder & Co., Coimbatore."}}, {"text": "N. Desai Gounder & Co.", "label": "ORG", "start_char": 5426, "end_char": 5448, "source": "ner", "metadata": {"in_sentence": "These questions arose on the facts set out in the statement of tl\\o\n\ncas.e which are : one Ramaiah Gounder was a partner in the fum called N. Desai Gounder & Co., Coimbatore."}}, {"text": "Coimbatore", "label": "GPE", "start_char": 5450, "end_char": 5460, "source": "ner", "metadata": {"in_sentence": "These questions arose on the facts set out in the statement of tl\\o\n\ncas.e which are : one Ramaiah Gounder was a partner in the fum called N. Desai Gounder & Co., Coimbatore."}}, {"text": "Lingish", "label": "OTHER_PERSON", "start_char": 5656, "end_char": 5663, "source": "ner", "metadata": {"in_sentence": "In August 1953, he executed a deed of settlement under which he transferred t4e property leased out to the firm to his two sons Lingish and Krishnan, absolutely and irrevocably."}}, {"text": "Krishnan", "label": "OTHER_PERSON", "start_char": 5668, "end_char": 5676, "source": "ner", "metadata": {"in_sentence": "In August 1953, he executed a deed of settlement under which he transferred t4e property leased out to the firm to his two sons Lingish and Krishnan, absolutely and irrevocably."}}, {"text": "Ramaiah", "label": "OTHER_PERSON", "start_char": 5950, "end_char": 5957, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Ramaiah the father continued to be ll partner of the firm even after the transfer till April 13, 1957, when the firm was dissolved."}}, {"text": "April 13, 1957", "label": "DATE", "start_char": 6037, "end_char": 6051, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Ramaiah the father continued to be ll partner of the firm even after the transfer till April 13, 1957, when the firm was dissolved."}}, {"text": "Desai Gounder & Co.", "label": "ORG", "start_char": 6120, "end_char": 6139, "source": "ner", "metadata": {"in_sentence": "He had also an account with the firm Desai Gounder & Co., and on March 30, 1953, he requested the firm by a letter to transfer from his account five sums of Rs."}}, {"text": "March 30, 1953", "label": "DATE", "start_char": 6148, "end_char": 6162, "source": "ner", "metadata": {"in_sentence": "He had also an account with the firm Desai Gounder & Co., and on March 30, 1953, he requested the firm by a letter to transfer from his account five sums of Rs."}}, {"text": "May 5, l957", "label": "DATE", "start_char": 6626, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "Ramaiah Gounder on May 5, l957, the Assis tant Controller of Estate Duty, included in the estate of the de\n\nceased, the property leased out to the firm which was transfelT!'ll to his two sons."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 7435, "end_char": 7440, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 8091, "end_char": 8095, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 8884, "end_char": 8889, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 9221, "end_char": 9231, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 10645, "end_char": 10650, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 13312, "end_char": 13317, "source": "regex", "metadata": {"statute": null}}, {"text": "Tomlin", "label": "OTHER_PERSON", "start_char": 15401, "end_char": 15407, "source": "ner", "metadata": {"in_sentence": "Lord Tomlin, giving his opinion, observed at p. 67, that \"the benefit which the donor had as a member of the partnership in the right to which the gift was subject was not in their Lordships' opinion a benefit referable bn any way to the gift\"."}}, {"text": "Viscount Simonds", "label": "OTHER_PERSON", "start_char": 15836, "end_char": 15852, "source": "ner", "metadata": {"in_sentence": "considered to have no application to the case at point, Viscount Simonds oterved at p. 97 : \"It must often be a matter of fine distinction \"'hat is the subject-matter of gift."}}, {"text": "Munro", "label": "OTHER_PERSON", "start_char": 15966, "end_char": 15971, "source": "ner", "metadata": {"in_sentence": "If, as in Munro's case, the gift is of a property shorn of certain of the rights which appertain to complete ownership, the donor cannot, merely because\n\n'le remains in possession and enjoyment of those rights, be said within the meaning of the section not to be excluded from possession and enjoyment of that which he has given.\""}}, {"text": "Russel", "label": "OTHER_PERSON", "start_char": 16570, "end_char": 16576, "source": "ner", "metadata": {"in_sentence": "Lord Russel of Kill ow en observed at p. 440 :\n\n\"The linking of possession with enjoyment as a com - posite object which has to be assumed by tile donee indicate."}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 18080, "end_char": 18097, "source": "ner", "metadata": {"in_sentence": "This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana &tty and another('), where a Bench of the Mysore High Court considered both the case of Olifjord John Chick and of ."}}, {"text": "Olifjord John Chick", "label": "OTHER_PERSON", "start_char": 18126, "end_char": 18145, "source": "ner", "metadata": {"in_sentence": "This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana &tty and another('), where a Bench of the Mysore High Court considered both the case of Olifjord John Chick and of ."}}, {"text": "June 30, 1954", "label": "DATE", "start_char": 18197, "end_char": 18210, "source": "ner", "metadata": {"in_sentence": "In that case, on June 30, 1954, the deceased transferred to his two sons Rs."}}, {"text": "July 1, 1954", "label": "DATE", "start_char": 18388, "end_char": 18400, "source": "ner", "metadata": {"in_sentence": "57,594 l:\\feing half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm."}}, {"text": "November 16, 1957", "label": "DATE", "start_char": 18484, "end_char": 18501, "source": "ner", "metadata": {"in_sentence": "On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of s. 10\n\nof the Estate Ducy Act, which decision was confirmed by the Appellate Controller."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18621, "end_char": 18626, "source": "regex", "metadata": {"statute": null}}, {"text": "Hegde", "label": "JUDGE", "start_char": 18836, "end_char": 18841, "source": "ner", "metadata": {"in_sentence": "One of us (Hegde, J., as he then was), speaking for the Bench, <>bserved at p. 32 :\n\n\"On the .facts of the case, it cannot be said that, after the gifts, the donees did not retain the property ifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted."}}, {"text": "section 10", "label": "PROVISION", "start_char": 19481, "end_char": 19491, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_562_566_EN", "year": 1973, "text": "BRIJ KISHORE PRASAD SINGH AND OTHERS\n\nJALESHW A; R PRASAD SINGH AND OTHERS\n\nMarch 2, 1973\n\n[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.] Code of Civil Procedure, 1908, S. 41.-Partition suit co111pro1nised-- No decree drcwn up or executed-Subsequent suit o.r possession of property allotted under compromise whether barred.\n\nBihar Lan<! Reforms Act 1959, s. 5-Constructive possession suffi- , cient to confer iright under section.\n\nA partitio, n suit between K and his brothers was compromised on July 4, 1947 and different schedules were prepared for the property iallotted to the sharers. However none of the parties tg the compromise produced the necessary stamp paper as dij:ected bv. the Court, and no -decree was drawn up by t_he Court. The present suit was filed by the successors-in-interest of K for possession of certain property which under the afdresaid compromiSe had fallen to the share of K.\n\nDe fenda, uts 1 and 2 contended .. that K while he was alive executed a hukumn, ama in their favour and they were put in possess'ion of the plaint property as lessees, and so they were entitled to retain possession.\n\nThey further contended that the suit was barred by limitation and al!o by section 47 of the Civil Procedure Code. The Trial Court decreed the suit. The decree was ctfirmed in appeal.\n\nIn second appeal the High Court held that the plaintiff should have paid stamp fee and got the decree drawn up in the partition suit and executed it_ and so the suit was barred by sec. 47 of Civil Procedure Code.\n\nThe Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1959 the plaintiffs we're not e; t>title to maintain the suit. The High Court accordingly allowe<l the appeal and dismissed the suit.\n\nIn appeal by special leave to this Court two questions that arose for consideration were : ( 1) whether the suit was barred by section 47 of the Civil Procedure Code and (2) whether under the provi•ions of the Reforms Act the plaint property had vested in the Government and therefore the plaintiffs were incompetent to maintain the suit. - Allowing the appeal, HELD : (i) It was clear froin the compromise petition that ihe defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They no doubt 'remained in physical possession but that was not with any intention to possess the property for themselves, but because they were permitted to remain i.p possession until the sU\"ucture constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under K by virtue of the hukumnc.ma executed by him in the'ir favour. At no time they asserted or claimed any right to remain in possession otherwise than as te:nant. lbeir case that K put them in psession was found against them by the Trial as well as the First Appellate Court.\n\nBut that would not 'in any way affect the permissive nature of their possession. after the Compromise.\n\nTherefore it must be held that K was in constructive possessiap of the property after the compromise and the suit for recovery of khas possession \\Vas not barred by section 47 of the Civil l'rocedure Code. [565CE]\n\n(ii) The High Court wrongly took the view that since K was not in possession of the property at the time the property vested in the State he \\Vas not entitled to retain possession of the plaint projperty under s. 5 of the Bihar Land Reforms Act 1959, as a te1nant under the State free of rent.\n\nThere was no dispute that the plaint property 'answered the description of a homestead in s. 5 of the Act. The constructive possession of K was sufficient to enable him to retain possession as tenant under th:~ section.\n\nIn other words on the date of vesting of the property in the Government, K was, for the purpose of s. 5 in possession of the plaint property.\n\nWhereas s.6 speaks of k/ias possession sction 5 speaks only of possess'ion.\n\nOn the date. of vesting of the plai:nt property in the State K was in possession for the purpose of s. 5 -and he became a tenant under the State free of rent.\n\nAccordingly the suit for recovery of possession was maintainable. f565H]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1466 of 1967.\n\nAppeal by special leave from the judgment and decree dated 24th November 1964 of the Patna High Court in appeal from Apellate Decree No. 1029 of 1968.\n\nS. C. Agarll'ala, and V. J. Francis, for the appellants.\n\nD. Goburdhan, for respondent Nos. 1 to 3 & 10.\n\nThe Judgment of the Court was delivered by\n\nMATHEW, J.-This is an appeal, by special leave, by the plaintiffs from a decree passed in appeal by 1he Patna High Court dismissing their suit for recovery of the, plaint property with mesne profits.\n\nPlaintiffs I to 4 are the daughter's sons of one Kishundeo Singh, plaintiffs 5 and 6 are his daughters and plaintilf 7 is his widow.\n\nThe plaint property together with some other properties belonged to the joint family of which Kishundeo Singh and his brothers were the members.\n\nSuit No. 60/34 of 1944-46 was instituted for partition of the properties.\n\nThat suit was compromised on July 4, 1947 and different schedules were prepared for the property allotted to the shares nd sons property was Mt in the joint possession of all of them. The plaint property fell to the share of Kishundeo Singh under the compromise. It may be mentioned that as none of the parties to the compromise produced the necessary stamp paper as directed b!y the Court, no decree was drawn up by the Court.\n\nIn the. suit for recovery of possession of the plaint property filed by the plaintiffs, defendnts I and 2 contended that Kishundeo Singh, while be was alive, executed a hukumnama in 1354 Fs. in their favour and they were put in possession of the plaint property as lessees and so they were entitled to remain in possession. They further contended that the suit was barred by limitation and also by s. 47 of the Civil Procedure Code.\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C.R.\n\nThe Trial Court found that Kishundeo Singh o1Jllained possession of the plaint property on the basis of the compr9ntlse, that the case of the defendants 1 and 2 that Kishundeo Singh had executed a hukumnama in their favour and that they obtain possession of the plaint property under it was false, that the suit wru;\n\nnot barred by limitation or bys. 47 of the Civil Procedure Code and decreed the suit. This decree was confirmed in appeal.\n\nIt was again&! this decree that ithe second appeal was filed by the defendants before the High Court.\n\nThe High Court held that the plaintiff should have paid the stamps fee and got the decree drawn up in Suit No. 80/34 of 1944-46 and executed it and so the suit was barred by s. 4 7 of the Civil Procedure Code. The Court further held that since the plaint property had vasted in the Bihar Government under the Bihar Land Reforms Act, 1959, hereinafter referred to as the Act, the plaintiffs were not entitled to maintain the suit. Therefore, the High Court allowed the appeal and dismissed the suit.\n\nThe two questions that arise for consideration in this appeal are: whether the suit was barred by s. 47 of the Civil Procedure Code and whether under the provisions of the Act, the plaint property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.\n\nAs the first question, the High Court was of the view that, though none of the parties to the compromise had produced the necessary stamps paper as directed by the Court and no formal decree was drawn up, t11e plaintiffs could not have instituted a fresh suit for recovery of possession of the plaint properly as their only remedy was to execute the decree in suit No. 80/34 of 1944-\n\n46. In other words, !he High Court held that the plaintiffs should hawe produced the necessary stamp paper and got the final drawn up and executed it, instead of filing a Sl•it for the relief which they could have obtained by executing the decree and so, the suit was barred by s.47 of the Civil Procedure Code.\n\nThe Trial Court had found that Kishundeo Singh obtained possession of the plaint property without the assistance of the Court in pursuance of the compromise but that he allowed the defendants to occupy the same. To put it in other words, the finding of the\n\nTrial Court was that the defendants were in permissive occupation.\n\nThe Trial Court also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and, therefore, their possession was clearly that of lessees under an agricultural lease.\n\nThe lower appellate Court held that there was no allegation in the plaint that Kishundeo Singh obtained khas possession under the com1'f01llise nor was there any evidence to show that he obtained\n\nkhas possession but that defendants 1 and 2 continued in as before the compromise.\n\nBefore the compromise, Kishundeo Singh and the defei_idants were in possession as tenants-in-common. The actual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishundeo Singh. That apart, defend11nts l and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property. was removed by them. They, no doubft, remained in physical posses, sion, but that was not with 11ny intention to possess the property for themselves but because they were permitted to ramain . in possession until the structure constructed by them was removed.\n\nThe only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise. Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise and, the suit for recovery of khas possession was not barred by s.4 7 of the Civil Procedure Code.\n\nThe second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act a.nd the plaintiffs had; therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953; die property vested in the State on Jan.uary 26, 1955, under the Ac~ .. There is no dispute that the plamt property answers the description of a homestead in s. 5 of the Act.\n\nThe ~Ugh Court was of the view that since Kishundeo. Singh was not m possession at the time die property vestC'.d in the State, he was not entitled to retain possession of the plaint property under\n\ns. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the\n\nGoveent, Kishundeo Singh was, for the purpose of s. S, in possession of the plaint property. In this oontext, it may be noted\n\n4-L761Sup, CIJ73\n\nSUPJ!.EME COURT REPORTS\n\n\nthat tbe language of s. 5 is in sharp contrast with that of s. 6. The A material pa rt of s. 5 states : \"5. Hcmesteads of inW!rmediaries to be retained by them as tenants-( 1) With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of, an intermediary on the date of such vesting shall, subject to the provisions of sections 7 A and 7B, be deemed to be settled by the State with such ill'lermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the Staie free of rent.\" The relevant portion of s. 6 is in these terms : \"6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights-( 1) On and from the date of vesting all lands used\n\nfor agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, .... \"\n\nWhereas s. 6 speaks of khas possession, s. 5 mentions only of possession. We find that on the date of vesting of the plaint D property in the State, Kishundeo Singh was in possession for the purpose of s. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.\n\nIn the result we allow the appeal and set aside the decree of the High Court and restore the decree passed by the lower appellate E Court, but we make no order as to costs.\n\nG.C.\n\nAppeal allowed.", "total_entities": 47, "entities": [{"text": "BRIJ KISHORE PRASAD SINGH AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "BRIJ KISHORE PRASAD SINGH AND OTHERS", "offset_not_found": false}}, {"text": "JALESHW A; R PRASAD SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 38, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "JALESHWAR PRASAD SINGH AND OTHERS", "offset_not_found": false}}, {"text": "March 2, 1973", "label": "DATE", "start_char": 76, "end_char": 89, "source": "ner", "metadata": {"in_sentence": "BRIJ KISHORE PRASAD SINGH AND OTHERS\n\nJALESHW A; R PRASAD SINGH AND OTHERS\n\nMarch 2, 1973\n\n[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.]"}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 92, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 106, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "A. K. MUKHERJEA, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "A.K. MUKHERJEA", "offset_not_found": false}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 145, "end_char": 174, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 41", "label": "PROVISION", "start_char": 176, "end_char": 181, "source": "regex", "metadata": {"linked_statute_text": "Code of Civil Procedure, 1908", "statute": "Code of Civil Procedure, 1908"}}, {"text": "Reforms Act 1959", "label": "STATUTE", "start_char": 344, "end_char": 360, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 362, "end_char": 366, "source": "regex", "metadata": {"linked_statute_text": "Reforms Act 1959", "statute": "Reforms Act 1959"}}, {"text": "section 47", "label": "PROVISION", "start_char": 1206, "end_char": 1216, "source": "regex", "metadata": {"linked_statute_text": "Reforms Act 1959", "statute": "Reforms Act 1959"}}, {"text": "sec. 47", "label": "PROVISION", "start_char": 1496, "end_char": 1503, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 1507, "end_char": 1527, "source": "regex", "metadata": {}}, {"text": "section 47", "label": "PROVISION", "start_char": 1915, "end_char": 1925, "source": "regex", "metadata": {"linked_statute_text": "The Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1959", "statute": "The Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1959"}}, {"text": "section 47", "label": "PROVISION", "start_char": 3217, "end_char": 3227, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 3477, "end_char": 3481, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Land Reforms Act 1959", "label": "STATUTE", "start_char": 3489, "end_char": 3516, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 3652, "end_char": 3656, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act 1959", "statute": "the Bihar Land Reforms Act 1959"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 3882, "end_char": 3886, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act 1959", "statute": "the Bihar Land Reforms Act 1959"}}, {"text": "s.6", "label": "PROVISION", "start_char": 3934, "end_char": 3937, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act 1959", "statute": "the Bihar Land Reforms Act 1959"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4103, "end_char": 4107, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act 1959", "statute": "the Bihar Land Reforms Act 1959"}}, {"text": "Patna High Court", "label": "COURT", "start_char": 4384, "end_char": 4400, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated 24th November 1964 of the Patna High Court in appeal from Apellate Decree No."}}, {"text": "S. C. Agarll'ala", "label": "OTHER_PERSON", "start_char": 4451, "end_char": 4467, "source": "ner", "metadata": {"in_sentence": "S. C. Agarll'ala, and V. J. Francis, for the appellants."}}, {"text": "J. Francis", "label": "OTHER_PERSON", "start_char": 4476, "end_char": 4486, "source": "ner", "metadata": {"in_sentence": "S. C. Agarll'ala, and V. J. Francis, for the appellants."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 4509, "end_char": 4521, "source": "ner", "metadata": {"in_sentence": "D. Goburdhan, for respondent Nos."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 4601, "end_char": 4607, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J.-This is an appeal, by special leave, by the plaintiffs from a decree passed in appeal by 1he Patna High Court dismissing their suit for recovery of the, plaint property with mesne profits."}}, {"text": "Kishundeo Singh", "label": "OTHER_PERSON", "start_char": 4851, "end_char": 4866, "source": "ner", "metadata": {"in_sentence": "Plaintiffs I to 4 are the daughter's sons of one Kishundeo Singh, plaintiffs 5 and 6 are his daughters and plaintilf 7 is his widow.", "canonical_name": "Kishundeo. Singh"}}, {"text": "July 4, 1947", "label": "DATE", "start_char": 5186, "end_char": 5198, "source": "ner", "metadata": {"in_sentence": "That suit was compromised on July 4, 1947 and different schedules were prepared for the property allotted to the shares nd sons property was Mt in the joint possession of all of them."}}, {"text": "s. 47", "label": "PROVISION", "start_char": 5984, "end_char": 5989, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6779, "end_char": 6783, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 7203, "end_char": 7208, "source": "regex", "metadata": {"linked_statute_text": "The Court further held that since the plaint property had vasted in the Bihar Government under the Bihar Land Reforms Act, 1959", "statute": "The Court further held that since the plaint property had vasted in the Bihar Government under the Bihar Land Reforms Act, 1959"}}, {"text": "s.47", "label": "PROVISION", "start_char": 8065, "end_char": 8069, "source": "regex", "metadata": {"statute": null}}, {"text": "s.4", "label": "PROVISION", "start_char": 10606, "end_char": 10609, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar", "label": "GPE", "start_char": 10759, "end_char": 10764, "source": "ner", "metadata": {"in_sentence": "The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act a.nd the plaintiffs had; therefore, no right to proceed with the suit and obtain a decree for possession."}}, {"text": "March 7, 1953", "label": "DATE", "start_char": 10912, "end_char": 10925, "source": "ner", "metadata": {"in_sentence": "The suit was instituted on March 7, 1953; die property vested in the State on Jan.uary 26, 1955, under the Ac~ .. There is no dispute that the plamt property answers the description of a homestead in s. 5 of the Act."}}, {"text": "Jan.uary 26, 1955", "label": "DATE", "start_char": 10963, "end_char": 10980, "source": "ner", "metadata": {"in_sentence": "The suit was instituted on March 7, 1953; die property vested in the State on Jan.uary 26, 1955, under the Ac~ .. There is no dispute that the plamt property answers the description of a homestead in s. 5 of the Act."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11085, "end_char": 11089, "source": "regex", "metadata": {"statute": null}}, {"text": "Kishundeo. Singh", "label": "OTHER_PERSON", "start_char": 11145, "end_char": 11161, "source": "ner", "metadata": {"in_sentence": "The ~Ugh Court was of the view that since Kishundeo.", "canonical_name": "Kishundeo. Singh"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11302, "end_char": 11306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11763, "end_char": 11767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11802, "end_char": 11806, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11832, "end_char": 11836, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 7", "label": "PROVISION", "start_char": 12116, "end_char": 12126, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12368, "end_char": 12372, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12722, "end_char": 12726, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12754, "end_char": 12758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12916, "end_char": 12920, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_567_570_EN", "year": 1973, "text": "SHEW KISSEN BHATTAR v.\n\nTHE COMMISSIONER OF INCOME TAX, CALCUTTA\n\nMQJ!ch 5, 19.73\n\n[K. S. HEGDE, P. JAGANll!OHAN f<.EDDY AND H. R. KHANNA, JJ.]\n\nJndic.n Jnco1ne Tax Act, 1922, s. 9( 1) (iv)-Scope of-Consent de~ cree in respect of property involved Stipulating pay111ent of co1npounJ interest by assessee-Assessee claiming deduction of compound interest- I.Interpretation of expressions \"amount of any interest on a.uch 1nortgage or charge\" and \"interest payable on such. capital' in s. 9(1) (iv)-Held assesse~ entitled to deduct only si111ple interest payable.\n\nThe assessee, a trustee of . the house property, claimed deduction of compound interest in terms of a consent decree passed in April 19, 1928, in a title suit in respect of the property. .Under the terms of that decree, the property was held to belong to the first defendant who. however, was to make a payment of Rs. 8,61,000/- to the plaintiff therein. 'f!iere was stipulafion for the payment of compound interest on the unpaid amount @ 6} with yearly rest..\n\nIt was further provided therein that Rs. 4,25,000/. was to be paid on !he execution of the tenns of the settlement and therefore monthly instalment of Rs. 35,000/ for seventeen months and the balariee in the 18th month. The terms of the compromise were not adhered to inasmuch as there were defaults , in payment of interest.\n\nAfter making the payment on February 19, 1945, there slill remained out.landing Rs. 2,70,535/-. The interest on this amount @ 61 fo< a year worked out to Rs. 18,000/-.\n\nThe assessee, however, calculated t® total interest payable Qt Rs. 38,221/- for the as..,.sme(nl' year 1956-57, relying on the clause in the agreement providing for payment of compound interest. The Income Tax Officer gave a deduction of Rs. 18,000/~ only, on the basis of simple 'interest at the rate of Rs. 6!% per annum.\n\nThe asSj!ssee's appeal agaiJ-, st this order was dismissed by the Appellate Assistant Commissioner and later on by the Tribunal. On reference of the question and other similar questions 'in respect of the assessment years 1956-57 to 1958-59, the High Coun held that only simple interest was allowable to the oassessee.\n\nOn appeals by certificate to this Court. dismissin2 the appeals; HEL:O : (I) What the law permits is the deductio.n of the \"amount of any interest on such mortgage or charge.\" Under the terms of the contract, when the interest payable is not paid, the same became a part of the. _principal . and thereafter, interest has to be paid not only on the ongmal principal but also on that pan of the Interest which had becam~ a. part of the princi]lal. The interest which became part of the prmc1pal cannot be conS1dered as the capital charge. What the assi:ssee i• entitled to deduct is . t)le intresl payable by him on the capital charge -and . not the additional interest which because of his failure to pay the interest o.n the due date had been considerd as a part of the loan.\n\nTh_e re~! capital char'e is that which w-as otiginally due. Tiu: other prt1on is merely an n.rerest on which the as!ICSSee has: agreed to. pay tnter\"'t. . Hence the mti:rest paid on interest is not an mterest paid on the capital charge.\n\n[570 B-D]\n\n(2) 'Aro interest' paid on capital bottowedor charged does not include compound interest. The compound interest is payable not on the capital charge but on that part of the interst on which he has agreed to pay interest. That is not the capital tak;!n not of bys. 9(1)(iv).\n\nIf the contention that \"any interest\" included compound interest is accepted as correct, then the door will be open for evasin of tax. Such an -interpretation is impermissible.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1500 to 1502 of 1970.\n\nAppeals by certificates from the judgment and order dated January 28, 1969 and June 13, 1969 of the Calcutta High Court in Income-tax Ref. Nos. 202 of 1963 and 76 of 1968, respectively.\n\nM. C. Chagla and D. N. Mukherjee, for the appellant.\n\nJ. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J.-These are appeals by certificate.\n\nA common question of law is involved in these appeals. These appeals relate to a common assessee biut arise from three different assessments in respect of three different assessment years (1956-57 to 1958-59), the accounting years being the respective calendar years.\n\nThe question of law arising for decision is whether the assessee was entitled to claim deduction of compound interest under section 9(l)(iv) of the Indian Income-tax Act, 1922. The High Court answered that question in the negative and ii) favour of the Department. Aggrieved by that decision the assessee has come up in appeal to this Court.\n\nTo decide the question set out above, it will be sufficient if we refer to the facts relating to one of the assessment years i.e. 1956-57. The material facts are as follows :- The assessee is a trustee of a hduse property at Chaudmari Road, Howrah.\n\nIn respect of that house 1there was a title mit filed by one Durga Prasad Chamria against Smt. Anardeyi and others claiming title over that property and for other reliefs. A consent decree was passed in that suit on April 19, 1928. Under the tenns of that decree t\\le aforementioned house property was held to belong to Smt. Anardeyi Sethani but she was to make a payment Of Rs, 8,61,000/- to the plaintiff therein. There was stipulation for the payment of compound interest on the unpaid amount @ 6!% with yearly rests. It was further provided therein that Rs. 4,25,000/ - was to .be paid on the execution of the terms of settlement and thereafter monthly instalments of lb. 35,000/ • for seventeen months and the balance in, the 18th month. The terms of the comprom\\e were not adhered lo inasmuch as there\n\ns. K. BHATTAR V. C.I.T. (Hegde, 1.) 569\n\nA were de.faults in payment of interest. After making the payment on February 19, 1945, there still remained outstanding Rs. 2,70,535/-.\n\nThe interest on this amount @ 6!% for a year worked out to Rs. 18,000/-. The assessee, however, calculated the total interest payable at Rs. 38,221/- for the assessment year 1956-57, relying on the clause in the arrangement providing for JI payment of compound interest.\n\nThe Income-!µ Officer gave a deduction of Rs. 18,000/- anly, on the basis of simple interest at the rate of 6t% per annum. The assessee's appeal against this order was dismissed by the Appellate Assistant Co.mmissioner and later on bly the Tribunal.\n\nThereafter, at the instance of the assessee the following question of law was referred to the High c Court, in respect of the assessment year 1956-57 :-\n\n\"Whether, on the facts and in the circumstances of the case, and on a true construction of the words 'interest payable on such capital' in section 9 ( 1) (iv) of the Indian Income-tax Act, 1922, the amount of interest allowable was Rs. 18,000/- or Rs. 38,221/- ?\" \" The questions referred to for the remaining assessment yous are more or less similar. The High Court answered those questions, as mentioned earlier, in favour ol the Department.\n\nHerein we are called upon to consider the true scope of section 9( 1) (iv) of the Indian Income-tax Act, 1922. The relevant por- :E lion of thl!t section reads thus :-\n\n\" ( 1 ). The tax shall be payable by an assessee under the head 'Income from Property' in respect of the bonafide annual value of property consisting of any buildings or lands appurtenant thereto of which he is 1he owner, other than such portions of such property as he may occupy for the purpoteS of any business, profession or vocatioo carried on by him the profits of which are assessable to tax, subject to the following allowances, namely:-\n\n(i) ............... .\n\n(ii) ............... .\n\n(111) ..•..•••.•••••••\n\n(iv) where the property is subject to a mortgage or other capital charge, the amount of any interest\n\non such mortgage or charge; where the properly is suect to an annual charge not being a capital charge, the amount of such charge; where the property is subject to a ground rtmt the amount of such gro_und rent; and, where the property has been acquired, constructed, repaired, renewed or\n\nreconstructed with 1:1orrowed capital, 'the amount of any interest payable on such capital :\n\nThe question is whether the assessee is entitled to deduct the compound interest payable by him in accordance with the terms of the contract referred 'to earlier or whether he is only entitled to deduct simple interest at th~ rate of 6t% per annum. It must be borne in mind that what the law permits is the deduction oi the 'amount of any interest on such mortgage or charge'. The interest payable by the assessee on the capital charge was at the rate of\n\n6t % per annum.\n\nBut if he fails to pay that in accordance with the terms of the coll'tract, be was liable to pay compou, nd interest.\n\nIn other words, if he fails to pay interest in accordance with the contract, he was liable to pay interest on interest. Or to put it differently, when the interest payable is not paid, the same became a part of the principal and thereater, interest has to be paid not only on the original principal but also on that part of the interest which had become a part of the principal. It cannot be said that the interest which became a part of the principal can be considered as the capital charge. What the assessee is entitled to deduct is the interest payable by him on the capital charge and not the additional interest which because cf bis failure to pay the interest on the due date had been considered as a part of the loan. In fact, the real capital charge is that which was originally due. The other portion is merely an interest on which the assessee has agreed to pay interest Hence we are unable to accept the connection of the assessee that the interest is an interest paid on the capital charge.\n\nMr. Chagla. the learned counsel for the assessee, contended that the law permits his client to deduct any interest paid bly him on the capital borrowed or charged and 'any interest' included compound interest also.\n\nThis, to our minds, appears to be a fallacious argument. The compound interet is payable not on the capital charge but on that part of the interest on which he has agreed to pay interest. That is not• the capital taken note of by section 9(l)(iv). If we accept Mr. Chagla's contention as correct, then the door will be open for evasion of tax.\n\nAll that the debtor need do is not to pay interest regularly but utilise that . amount for other purpose and make the Revenue pay compound interest payable by him and thus derive advantage out of his own omission. Such an interpretation is impermissible.\n\nWe are clearly of !he opinion that the interpretation placed by the High Court is the correct interpretation . In the result, these appeals fail and they are dismissed with costs; one hearing fee.\n\nS.B.W. 1ppeals di>\"missed.\n\nJ)l", "total_entities": 28, "entities": [{"text": "SHEW KISSEN BHATTAR", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SHEW KISSEN BHATTAR", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF INCOME TAX, CALCUTTA", "label": "RESPONDENT", "start_char": 24, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX, CALCUTTA", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 84, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 125, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 161, "end_char": 174, "source": "regex", "metadata": {}}, {"text": "s. 9( 1)", "label": "PROVISION", "start_char": 176, "end_char": 184, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "s. 9(1)", "label": "PROVISION", "start_char": 483, "end_char": 490, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "April 19, 1928", "label": "DATE", "start_char": 689, "end_char": 703, "source": "ner", "metadata": {"in_sentence": "the house property, claimed deduction of compound interest in terms of a consent decree passed in April 19, 1928, in a title suit in respect of the property."}}, {"text": "February 19, 1945", "label": "DATE", "start_char": 1379, "end_char": 1396, "source": "ner", "metadata": {"in_sentence": "After making the payment on February 19, 1945, there slill remained out.landing Rs."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3817, "end_char": 3836, "source": "ner", "metadata": {"in_sentence": "Appeals by certificates from the judgment and order dated January 28, 1969 and June 13, 1969 of the Calcutta High Court in Income-tax Ref."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 3904, "end_char": 3916, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and D. N. Mukherjee, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 3921, "end_char": 3936, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla and D. N. Mukherjee, for the appellant."}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 3958, "end_char": 3971, "source": "ner", "metadata": {"in_sentence": "J. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3973, "end_char": 3987, "source": "ner", "metadata": {"in_sentence": "J. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3992, "end_char": 4004, "source": "ner", "metadata": {"in_sentence": "J. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 4071, "end_char": 4076, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE, J.-These are appeals by certificate."}}, {"text": "section 9(l)(iv)", "label": "PROVISION", "start_char": 4509, "end_char": 4525, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4533, "end_char": 4560, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Howrah", "label": "GPE", "start_char": 4969, "end_char": 4975, "source": "ner", "metadata": {"in_sentence": "The material facts are as follows :- The assessee is a trustee of a hduse property at Chaudmari Road, Howrah."}}, {"text": "Durga Prasad Chamria", "label": "OTHER_PERSON", "start_char": 5039, "end_char": 5059, "source": "ner", "metadata": {"in_sentence": "In respect of that house 1there was a title mit filed by one Durga Prasad Chamria against Smt."}}, {"text": "Anardeyi", "label": "RESPONDENT", "start_char": 5073, "end_char": 5081, "source": "ner", "metadata": {"in_sentence": "Anardeyi and others claiming title over that property and for other reliefs.", "canonical_name": "Anardeyi Sethani"}}, {"text": "Anardeyi Sethani", "label": "RESPONDENT", "start_char": 5303, "end_char": 5319, "source": "ner", "metadata": {"in_sentence": "Anardeyi Sethani but she was to make a payment Of Rs, 8,61,000/- to the plaintiff therein.", "canonical_name": "Anardeyi Sethani"}}, {"text": "section 9", "label": "PROVISION", "start_char": 6782, "end_char": 6791, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6809, "end_char": 6836, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 9( 1)", "label": "PROVISION", "start_char": 7144, "end_char": 7157, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7170, "end_char": 7197, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 9861, "end_char": 9867, "source": "ner", "metadata": {"in_sentence": "Mr. Chagla."}}, {"text": "section 9(l)(iv)", "label": "PROVISION", "start_char": 10303, "end_char": 10319, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_571_586_EN", "year": 1973, "text": "J.)\n\nBAJWA & ORS.\n\nSTATE OF U.P.\n\nMarch 6, f973\n\n(A. ALAGIRISWAMI. J. D. DUA AND C. A: VAIDIALINGAM, JJ.J\n\nPractice-Cnininc.-1 Law-Appe<1I agalnt aequi.rtal-App11eciat1}Jn of evidence by High Court-Approacli of Supre111e Court in JJurtherc.ppeal-Faclion cascs-Precau1io11s Qgailist i111plication of innocent persons.\n\nJn dealing with appeals against acquittals the High Court has to bear in mind the presumption of innocence in favour of the a.ccused person and cannot Jose sight the fact that the said presumptiq-, is stfengthened by the order of acquittal passed in his favour by the trial court, and so. lhe fact that the accused person is entitled to the benefit of a reasonable doubt must alWilys be present in the mind of the High Court whe; r1 it deals with the merits of the case.\n\nBut, how., ever circumspect and cautiol, ls the approach of the High Court may be in dealing with such appeals, it undoubtedly \"is entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused. The observations in the various decish11ns prescribing a cautious approach, on the part o.f the High Court, in dealing with appeals against aequittals, do not cut down, limit or qualify its statutory power under s. 423(a) Cr.P.C., which is co-cxtens'ive with that under cl. (b). It is not necessary that the High Court must hold that the trial Court\"s finding was perverse before reversing it.\n\n[581 A-D, F-H]\n\nThis Court, on appeal from a judgment of convictio, n after setting aside an order of acquittal, would examine the ev'idence only for seeing that the High Court has' approached the question properly nd applied the principle~ correctly.\n\nOnce it is found that the High Cou'rt has upplied correct principles in dealing with appeals against acquittals then this Court would not ordinarily go further into the evidence and weigh it for itself to substitute its owrr opin'ion for that of the High Court merely as to its sufficiency to suppOrt the conclusions arrived at by the High Court.\n\nIt wilt do so only if there is some serious, infirmity leading to grave injustice.\n\nIn c; ise the High Court's judgment suggests that the correct principles were not kept in view then it would be open to. this Court to examine the entire evidence\n\nfor t, hc purpose of assuring that justice does not fail [581 D-FJ In the p'resent case, in the judgment of the High Court there is trtO reference to the decisions of the Privy Council or of this Court laying down the principles which the appellate court is expected to keep 'in view when dea1ing with appeals against acquittal, but the judgment clearly shows that it \\Vent into all the aspects on which fie prosecution evidence could be criticised and concluded that the evidence was fully trustworthy Olld that the medical evidence, though it might be shaky, did not throw onv doubt on the trustworthiness of the pfosecution witnesses as to the time, place, and circumstances in which . the deceased was killed.\n\nThe appreciation of the evidence by the :mh Court is unexceptionable and there is no questio.n of any poss1b1hty of a reasonable ooubt on the co'nclusions 11bout the time ahd place of occurrence and the n1anner in which the deceased met his death.\n\n[584 A-HJ\n\nBut in cases like the presnt-, where there are party factions, there is a tendency to include the Innocent with the guilty and it is extremely difficult for the Court to guord against such a danger. The only real safeguard against the risk of condemning the itonocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such acused and satisfies the conscience of the court. [585 0-HJ\n\n In the instant case, the eye witi>esses have named all the appellants and the approver has even named those acquitted by the High Court.\n\nBut it would be safe only to convict those who are stated to bav1> taken an active part and about whose identity there can be no reasonable doubt.\n\n:[,586 A-CJ Bhubaneshwar Manda! v. The State of Bihar, A.I.R. 1973 S.C. 399, Sheo Swarup v. King Emperor, I.L.R. 56 All.\n\n645 (P.C.); Sanwatl Singh v. State of Rajasthan\\ [1961] 3 S.C.R. 120, State of U. P. v. Saman Dass, A.LR. 1972 S.C. 677, Khedu Mahton v.\n\nState of Bihar, A.I.R. 1971 S.C. 66, Kanu Ambu Vish v.\n\nStais of Maharashtra, A.LR. 1971 S.C. 2256, Harbans Singh. v.\n\nState of Punjab, [1962] Supp 1 S. C.R. 104, Shivji Guru Mohite v. State of Maharashtra, A.I.R. 1973. S.C. 55, M. G. Agarwal v. State of Maharashtra, V1963] 2 S.C.R. 405, Nur Mohammad v.\n\nEmperor,\n\nA.J.R. 1945 P .C. 151, Gopinath Gangaram v. State of Maharashtra, Crl.\n\nA. 99 of 1969 decided on October 15, 1969, Kashmira Singh v.\n\nState of M. P. 1952 S.C.R. 526 and Bhaban Sahu v. The King, 76 I.R. 147, referred to.\n\nCRIMINAL APPELLATE JURIDICTION : Criminal Appeal No. 189 of 1969.\n\nAppeal by special leave from the judgment and order dated October 31, 1968 of the Allahabad High Court in Government Criminal Appeal No. 771 of 1965.\n\nR. K. Garg and S. C. Agarwa/a, for the appellant.\n\nD. P. Uniyal a.nd 0. P. Rana, for the respondent.\n\nThe Judgment of the Court WM delivered by DuA, J.-The ten appellants have appealed to this Court by special leave under Art. 136 of the Constitution from the judgment and order of the High Court of Judicature at Allahabad dated October 31, 1968 allowing the appeal ol the State of U. P.\n\nfrom the judgment and order of the Temporary Sessions Judge, Hamirpur dated January 15, 1965 acquitting all the 15 accused per!rons, including the appellimts, of the charges under ss. 148 302/149 and 201, l.P.C. During the pendency of the State appeal in the High Court against the order Of acquittal, Chandrapal Singh, acused no. 1 (in the trial court), died on September 30, 1967 with the result that appeal against him abated on his death. The appellants were, however, held liable to be convicted under ss. 302/149, 201/149 and 148, I.P.C.\n\nAgainst he remaining accused persons the order of acquittal was affirmed.\n\nUnder ss. 302/149, l.P.C. each of the appellants WM sentenced to imprisonment for life and under ss. 301/149, I.P.C. sentence of two years' rigorous imprisonment was imposed on each one of them. Tl; iey were also sentenced to one year\"s rigorous imprisonment each under s. 148. l.P.C. All the sentences were directed to be concurrent.\n\nAccording to the prosecution Pannalal and Gulzarilal, appellants nos. 7 and 8 are brothers: so are Achebe Lal, Ramdhar and Bansi, appellants 4 to 6.\n\nGurwa, appellant no. 3 is the first cousin of Bansi : Ramdayal, appellant no. 10 is also Bansi's cousin. Ba.iwa, appellant no. 1 too is related to Bansi: he is the son of Ramsahai who turned an approver and was examined as a prosecution witness.\n\nIt is alleged that all the appellants, along with the either persons arrayed as accused in the trial court, belong to one party and there was some litigation under s. 107, Cr.P.C. between most of the accused persons on the one side and the deceased Ramratan and men of his party on the other. During the course of proceedings under s. 107, Cr. P .C. it appears that under pressure of Ramdayal, Achche Lal and Ramdhar on unwilling Ramratan, a compromise was signed in those proceedings but as there was no genuine change of heart amongst the rival parties the Station Officer of '!he Police Station did not agree to drop the proceedings. There was also another proceeding under s. 107, Cr. P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down. It is also alleged that on the murder of one Munni Banin, Chandrapal Singh, Gulzarilal, Pannalal, Banshi, Ramgopal and Gurwa were prosecuted and Ramratan, deceased, conducted the case for the prosecution. There was thus no love lost between the two factions. On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA. On their way while proceeding from the direction of Korionwali Gali, they entered Banshiwali Lane. There they noticed accused Bansi and Gu!zarilal standing in front of the door of Bansi's Gurwahi Bakhari.\n\nAs soon as Shivratan (P.W. 1) and his companions turned into the Banshiwali Khor for going to Sheoraj Singh's house, Gulzarilal asked '!hem to stop. Bansi is also said to have shouted \"kill them\".\n\nThereupon Chandrapal Singh fired his gun hitting Ramratan, deceased, as a result of which the latter died at the spot. The ten appellants were said to be present in the company of Chandrapal Singh at the time of the occurrence.\n\nGulzarilal, Pannalal, Bansi and Achebe Lal were stated to be armed with pharsa, Ramdhar.\n\nRamdayal, Gurwa and Ram Gopal had .kulharis while Bajwa and Tej Singh were carrying gandasas.\n\nChandrapal Singh was armed with a gun with which he shot down the deceased Ramratan.\n\nSheoratan (P.W. 1) and his par; men\n\nSUPREME OOURT :REPORTS\n\n{1973] 3 S, C.R.\n\ntried to advance towards the dead body o( Ramratan but the appellants and Chandrapal Singh rushed at them threatening to kill them as well.\n\nSheoratan Singh and his partymen thereupon ran away towards their village raising an alarm. On their arrival in their own Mohalla Sheoratan Singh and his companions collected about 30 or 40 persons and returned to the place where Ramratan had been shot, dead.\n\nThere they found that the dead body of Ramratan had been removed.\n\nThey divided themselves into two groups.\n\nOne party going towards the house of Sheoratan Singh in search of Ramratan's dead body and the other going towards Bansi's house for the same purp<ise.\n\nOutside the village both the parties met again and continued their Search.\n\nClimbing over the \"Jogi Nala\" they noticed •the appllants along with Chandrapal Singh going away with the dead body towards \"Bari Bhawani\".\n\nThey also noticed that the dead body had been cut into pieces and its dismembered par'!s were carried in three baskets, one of the partymen carrying the head of the deceased in his hand. The party of Shivratan tried to chase the accused and on corning closer they recognised the persons running away with the different parts of the dead body.\n\nRamgopal was carrying the head of the deceased in his hand whereas Bajwa, Tej Singh and Ramdayal were carrying three baskets.\n\nOn seeing the party of Shivratan, the appellants are stated to have thrown away. various parts oi the dead body and escaped.\n\nSheoratan Singh and his companions recovered the trunk but could not find the head and the thighs of the deceased. Picking up the parts of the dead body which they were able to recover, they returned to their village. A report of the occurrence was written put by Sheoratan Singh (P.W.\n\n1) at his house and lodged by him at the police station about 8 miles away at about 12.30 midnight between August 16 and 17,\n\n1963. He had gone there with the village chowkidar and five or ten other persons including Jagdeo Singh who was armed wtth a gun.\n\nThe Station Officer not being present in the police station at that time, the report was handed over to the moharar Girinder Singh, constable (P.W.7). In that repOrt the names of the ten appellants and Chandrapal Singh were specifically mentioned as the perpetrators of the alleged crime. On his return home P.W. 1 learnt that the head and thighs of the deceased had also since been recovered and kept with the other parts of the dead body. The papers .relating to the repol't lodged with the police were sent to the Station Officer in vill!lge Guyari where he happened to be at that time.\n\nThe said officer reached village Geondi at about 11.00 a.m. on August 17 and found the truncated body of the deceased under a peepal tree and, after preparing the inquest report, he despatched the recovered parts o( the body for postmortem examination. At the place where Ramratan was alleged to have been shot down, blood stains were found by the investigating officer on the ground.\n\nBlood ·!ltained and un9lained earth was collected f; om that spot.\n\nHe then went to \"Gurwahi Bakhari\" of Ramsahai where the dead body was suspected to have been dismembered.\n\nBlood was discovered inside the \"Bakhari\". Blood stains were also found on the chaukat and door leaves of the said \"Bakhari\" some bricks lying there were also found to have blood stains on them. There were blood marks as well on the cattle fodder lying in that Bukhari.\n\nThe investigating officer (P.W.8) took the blood-stained pieces. of various articles from 'the said Bakhari and duly sealed them. The 11ecessary recovery memos were prepared. The inve!rtigating officer also found four wads behind the said Bakhari in the vicinity of the place where Ramratan was stated to have been shot dead.\n\nThose wads were sealed and the necessary recovery memos prepared .. Search was made by the investigating officer (P.W.8) for the alleged miscreants but they were not traceable with the results that proceedings under ss. 87 and 88, Cr. P.C. were taken for the wanted accused. Accused nos. 12 to 15 in the trial court were arrested on August 25, 1963, the remaining accused having surrendered in court on various dates.\n\nThe postmortem examination was performed on the dead body of Ramratan bi\\' Dr. J. S.\n\nPanwar, Medical Officer-in-charge of Mahoba on August 18. 1963 at about 9.30 a.m.\n\nOnly seven differellt parts of the dead body were available for autopsy. Maggots were found on the injured parts of the dead body and fragments of skin with peeling off in several areas in big patches were also found.\n\nThe following ante-mortem injuries on the trunk of the dead body were observed by Dr. Panwar :\n\n\"l. Bruise 6''X5\" on !he front side of the chest with thick layer of coagulated blood under it.\n\n2. Two gun shot wounds measuring 3/10\"X3/10\"\n\non the chest left side 1 /2\" away from the fourth and fifth ribs. The two wounds are l / 5\" apart and one was upon the other. Coagulated blood was present under. the skin of those injuries.\n\n3. 8 gun shot wounds on the back left side, each measuring 4/10\"X4/10\" scattered in an area oI\n\n6t\"X 5\".\"\n\n~II th~ .acced. denied their complicity, Chandrapal Singh pleadmg al1b1, cla1mmg that on the morning of August 16, 1963 at about 5 a.m. he had left for village Kharela, where he remained for three or four hours, and in an auction there purchased a buffalo from the cattle pound. From there he went to Bambhari and a; he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.\n\nThe trial court again summoned Dr. Panwar and examined him as C. W. 1 on October 22, 1964. He had already been examined in the c<immitting court on November 4, 1963. He had, however, not been cross-examined then, though full opportunity had been afforded, because, according to the defence counsel, he could effectively do so only after the examination of the other prosecution witnesses.\n\nDuring the course of his examination in the court of the committing magistrate Dr. Panwar had, after giving' full details of the in.juries on the person of the deceased as noticed by him and after proving the postmortem report, stated :-\n\n\"I cannot say it correctly which of the gunshot wounds was a wound of exit which was the wound of entrance. For this reason I have put these facts inside the biracket.\n\nIt is my opinion that injury no. 2 is the wound of entry and injury no. 3 is the wound of exit.\n\nIt might also be that injury no. 2 is the wound of exit and injury no. 3 is he wound of entrance\".\n\nIn the trial court his examination-in-chief and cross-examination 1by the State counsel reads :\n\n\"As regards injury nos. 2 and 3 both I had stated in the court of commit'ling magistrate that both of them could be the wounds of exit as well as wounds of entry.\n\nAs regards wound no. 2 it is more probable to be the wound of entry than exit wound. At the time of post\n\nmortem there was no such data with regard to all these gun wounds except their dimensions from which it could be ascertained as to which were entry wounds and which were exit wounds. These gunshot wounds were inflicted from a distance of more than four feet.\n\nCross-examined by State counsel :\n\nAs regards wound no. 2 I am telling it to be more probablle to be entry wound because rts dimensions are large and there is no other reason except this. By considering this fact, that there are 8 wounds on the back and two wounds on the chest and that they have been caused G from a distance of more than 4 feet, it can also be said that in comparison to the wounds on the chest the wounds on the back have more probability to be entry wounds. No track formed by peilets have been found.\n\nIt is possible that eight pellets might have entered from the back and two of them might have gone out of the H chest and six of them might have fallen on account of the body being out into pieces or they might not have been detected at the time of postmortem.\"\n\nHe was cross-examined on behalf of the defence at great length ..\n\nIt was elicited from him that it was not his practice to write in the postmortem report that the tracks of pellets are not traceable.\n\nHe could not say whether or not the racks were visible in the present case as he could only reinember about the track for about 2 or 4 days after the postmortem, indicating thereby that after such a long time he could not say anything definite from memory. He had tried to find the pellets but none were available.\n\nFrom this he could deduce that no pellets were present in the body. He did. not find any hole in the trunk of the dead body on the basis of which it could be said that the pellets had fallen out. He added that if it could be held that no pellets had fallen from the dead body and none were present at the time of postmortem then it could be said with certainty that wounds on the chest were the entry wounds and the wounds at the back the exit wounds.\n\nWe have stated the broad trend of the doctor's evidence.\n\nThe trial court dealt with the medical evidence and came to the conclusion that there was nothing in the postmortem report to suggest that Dr. Panwar was in any way in doubt at the time of the postmortem. The court refused to accept the doctor's explanation that in the postmortem repovt he had written the wounds of exit and wounds of entry within brackets because he was doubtful. This conclusion was based on the ground that this doubt was not expressly stated in the postmorten report. On this reasoning the trial court felt that the medical evidence instead of supporting the prosecution case, establlished that the prosecution version of Ramratan Singh having been shot at from behind was unbelievable.\n\nIt may here be mentioned that in the trial court an application had been moved by the prosecution for a demonstration to be held by firing cartridges to show dispersal of the pellets. This was allowed and a demonstration held when a shot was fired from a distance of 42tft. because, according to the prosecutioµ story, Ramra\\an\n\nSingh, deceased, had been shot at from that distance.\n\nThe first shot in the demonstration created ten holes in an area of 12\" ><12\";\n\n9 of them being identical in size while one being a very big hole having an area in size as big as that of anyone of the other nine holes.\n\nAnother cartridge was fired which created 8 holes in an area of 9\"X9\". According to the defence the cartri!lges supplied by the prosecution for this demonstration were very likely not authentic.\n\nThe court then commented upon the result of this demonstration and also referred to some observations in Modi's Textbook on Medical Jurisprudence and Texicology and came to the conclusion that the dispersal of the pellets suggests that the deceased had been shot at from close range from the front and not from behind from a distance of 42! ft.\n\nThe court then proceeded to discuss the prosecution evidence and expressed the view that as the original postmortem report suggested the wounds in.\n\n1he cpeS'l being the entry wounds, the prosecution tried to make t a case of the deceased having been fired at from the front.\n\nLater on, when it transpired that perhaps the wounds at the bac, k were more likely 'to be considered as the entry wounds, the place .of occurrence was also changed from the entrance of Korion Wali Gali to Banshi Wali lane and instead of deposing that Ramratan Singh had been shot at from the front the prosecution witnesses started deposing in court that he was shot at from llehind. This inference was drawn by comparing ,<tatements of P.Ws 2 and 3 :under s. 161, Cr. P.C. (Bxs. Kha 7 and Kha 9) and the deposition .of the witnesses in court.\n\nThe trial court also expressed doubts about the evidence of the investigating officer -that he had tound some drops of blood at tbe site when he inspected it the day following the alleged occurrence and indeed considered this statement to be totally incorrect. In the opinion of the trial court it was just a matter of chance that the party of the accused persons had inet Ramratan Singh and there could thus be no question of. their having formed an unlawful assembly and having walled in front of .Baasi's house for killing Ramratan Singh, deceased. The motive of the accused for the murder was not accepted by the trial oourt and it was observed that it was the cout which did not accept the compromise in the proceedings under s. 107, Cr. P.C. the party of the accused and that of the deceased.\n\nLastly the court felt that the deceased Ramratan Singh having himself been a man of. bad character the possibility of someone else killing him could not ruled out. Chandrapal Singb's plea of alibi was also accepted as according to the trial court the entry about bis visit to village Barwah could not be held to be untrustworthy. Tiie trial court in a brief discussion of the evidence of P.Ws l, 2 and\n\n3, the eye witnesses, considered their statements to be unacceptable, being the statements of interested witnesses.\n\nThe testimony of Ramsahai (P.W. 4) the approver was also considered to be unworthy of credence and it was observed that be had not implicated himself in the offence. The story of the blood having been wa~\n\nby the ladies from the house was also Iiot believed by the trial court.\n\nIn these circumstances the trial court did not place any reliance on the testimony of., what it described, the \"so-called approver\". On 'this view all the accused persons were acquitted.\n\nWe have dealt with the trial court's view at some length beGause on behalf o.f the appellant the principal argument urged was that tile trial court's judgment was quite reasonable and that the High Court was in serious error in law in reversing it on its own appn:- ciation of the evidence and material on the record.\n\nOn apJ?Cal to the High Court by the State, a division Bench H Closely went into the evidence. On scru1:iny of the testimoaf of Dr. PimWar that court came t<J the eonchlsli>n that bis evidlinc.e left the question as to wheillier the wounds on the chest oc the\n\nwounds on the back were the wounds of entry in a state of uncertainty. Jn i'ts opinion the doctor had oscilla<ted in his dei tion so many times that it was impossible to draw any definite conclusion contrary to 1he evidence of the eye witnesses on the basis of his testimony.\n\nThe High Court felt on the appreciation of the medical evidence that there were several explanations of the pelle1s being in the body and not traced by the doctor during the postmorlem.\n\nThe pellets after they enter the human body often take a very erratic course on account of their being deflected by coming into contact with ; the bones and indeed according to the High Court the doctor himself had admitted that it was not unlikely •that eight pellets entered the body through the I.Jack and two of them came out of the chest. the remaining six having either fallen out of the body, because of its having been cut up or having not been traced by him (the doctor) at the time of poS'!mortem examination. The High Court also took notice of the fact that the. maggots were found by the doctor, 10 be crawling on fragments of the body and skin was peeling off in several places in !:jig patches, with the result that there was a possibility of the magguts having themselves played a part in bringing about the change in the dimensions of the injuries. It further felt that there was no hard and fa!ll rule that the wounds of emry must necessarily be smaller in size than the wounds of exit. After considerinl!: all the relevant aspects the court felt that the dimensions of •he injuries on the chest as compared to the wounds on •the back were insufficient to justify the inference drawn by the trial court that the shots had been fired from the front thereby discrediting the testimony of the eye-witnesses with any degree of certainty. The gun having not been recovered the court was not able to come to any conclusion whether the cartridge fired was a factory manufactured one or refilled.\n\nOn a full survey of the entire medical evidence and the other material on the record the High Court did not find it possible to reject the evidence of the eye-witnesses on account of its being \"allegedly inconsistent with the shaky medical evidence\". The High Court went into the oral evidence wilh great car~ and after folly considering it held that evidence to be acceptable. It also oblserved that the trial court had unnecessary importance to the question of motive on the pan of someone else for the mu.rder.\n\nThe evidence made it clear that there were a numbr of proceedings between the deceased Ramratan Singh and members of his family on •the one side and Chandrapal Singh and members of his party on the other. The mere fact that there was a possibility of sonie Other persons also having a motive in murdering Ramratan Singh was not a cogent reason by itself to doubt the testimony of the eye-witnesses which the High Court found to have been corroborated by other unimpeachable evidence on the record. Chandrapal Singh's plea of alibi which had been\n\nA upheld by the trial court was also carefully gone into by the High Court and rejected as unsupported by cogent evidence.\n\nIn any event on the assumption that Chandrapal Singh had actually taken part in an auction held on August 16, 1963 at Kharela as pleaded, his presence there till 3 p.m. was held unacceptable. The State appeal was accordingly allowed in part but Chandrapal B Singh having died in the meanwhile on September 30, 1967 the appeal against him was said to have abated. The appellants were convicted and sentenced, as already noticed, but the finding of acquittal against the other accused persons was not intedered with.\n\nIn this Court Shri R. K. Garg, learned counsel for the appellants addressed elaborate arguments in criticising the judgment of the High Court.\n\nThe principal challenge was concentrated on the contention that the medical evidence in this case contradicted the version of the occurrence as given by the witnesses professing to have seen it. It was strenuously argued that even if two views were possible on this point the High Court was in serious error in reversing the judgment of acquittal recorded lzy the trial court into one of conviction, ignoring the law as unifoffi!iy enunciated in this Court in a number of decisions, the latest decision in which legal position has again been reiterated being Bhubneshwar Manda! vs. The State of Bihar( 1). Emphasis was laid on paras 3 and 4 of that Judgment where reference has been made to the decisions in Shea Swarup vs. King Emperor('), Sanwat Singh vs. State of Rajasthan(') and State of U.P. vs. Samman Dass(') and relevant passages from those judgments reproduced. Shri Garg submitted that in the case before us also the High Court had failed to realise the limitation within which it had to function and the caution it had to observe in considering the appeal against the appellants' acquittal.\n\nThe counsel also crted Khedu Mahton vs.\n\nState of Bihar(\") and Kanu Ambu Vish vs. State of Maharashtra{°) in which the guidelines for the High Courts in dealing with appeali against acquittai-. are laid down.\n\nShri Garg in this connectiolf took us through the judgmell.ts of the trial court and the High Court for the punxise of showing that the trial court's judgment proceeded on a possible view of the evidence on the record and, therefore, the High Co~ acted contrary to the observations made by this Court in the above decisions.\n\nWe were also taken through the relevant evidence on the record by the. appellants' learned counsel in his attempt to substantiate his contention.\n\nShri Garg then referred to certain passages from Modi's Medical Jurisprudence 'and Toxicology for sustaining the trial court's view that the testimony of the prosecution witnesses did not fit in with\n\n\n(2) l.L.R. S6 All, 64S (P.C.}\n\n(4) A.l.R. 1972 S.C. 677.\n\n(6) A.l.R. 1971 S.C. 22S6;\n\nA the doctor's evidence.\n\nIn this connection also we were taken through the evidence of the doctor at some length.\n\n• Now first dealing with the scope of appeal by >the State again~! acquittal, as this was the main basis of attack against the judgment of the High Court, the position in our view is well-settled and there is hardly any scope for controversy, notwithstanding the use of 8 different languages in various decisions of this Court. The passages from the three authoritative judicial pronouncements of this Court quoted in Bhubneshwar Manda I (supra) clearly illustrate the basic line of approach the High Court is expected to adopt while dealing with the State appeals from the judgments of acquittal.\n\nThis view has been consistently and uniformly taken ever C since the basic decision of the Privy Council in Shea Swarup\n\n(supra), laying down the broad guidelines of approach to be adopted by the High Courts.\n\nWe would, however, like to emphasise that this Court on appeal from judgments of conviction after setting aside orders of acquittal would examine evidence only for seeing that the High Court has approached the question pro- D perly and applied the principles correctly. Once it is found that the High Court has applied correct principles in dealing with an appeal agains1 acquittal then this Court woufd not ordinarily go further into the evidence and weigh it for itself t•D substitute its own opinion for that of the High Court merely as to its sufficiency to support the. conclusions arrived at by the High 0Jurt. It would E do so only if there is some serious infirmity leading to grave injustice [see Harbans Singh vs. State of Punjab(') and Shivji Guru Mohite vs. State of Maharashtra(')]. In case, however, the High Court's judgment suggests that the correct principles were not kept in view then it would be open to this Court to examine the entire evidence for the purpose of assuring that justice does not fail.\n\nWe consider it necessary to make it clear that the observa- F tions in various decisions prsc'ribing a cautious approach on the part of High Courts in dealing with appeals against acquittal& do not cut down, limit or qualify its statutory power under s. 423 (a), Cr. P.C. which is co-extensive with that under cl. (b). Those observations merely indicate the approach of the High Court leaving it free to reach its own conclusions upon the evidence. It is G not necessary that the High Court must hold that the trial court's finding was perverse before reversing it. As solll!l of those observations have very frequently been considered (wrongly in our opinion) to lay down in law a rigid limit on the power of the High Court while hearing an appeal against acquittal, we consider it necessary to refer to the decision of this Court in M. G. Agarwal H vs. State of Maharashtra(') where Gajendragadkar J. (as be then was) speaking for a bench of five Judges, after referring to various\n\n(I) [1962] Suppl S.C.R. 104.\n\n(2) A.I.R. 1973 SC. 55\n\n\ndecision:; incluing Shco S1vnr11p (supr~1) and ,'v'ur 1\\IJ0ha;,:n<a.!\n\nv. Emperor(' I. laid down the correcc principle as follows :\n\n\"Section 423 (I) prescribes the powers of the appellate Court in disposing of appeals preferred before it and clauses (a) and (b) deal with appeals again'! acquittal:, and appeals against convictions respectively.\n\nThere is no doub1 'that the power con.ferred by clause (a) which deals with an appeal against an order of acguitral is '\" wide as the power conferred by clause (b) which deals with an appeol against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether 'J1e appeal in question is one against acquiital or against conviction.\n\nThat is one aspect of the question. The other aspect of the question centres round the appro1ch which the High Court adopts in dealing with appeals against orders of acquittal.\n\nTn dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order ct acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. . ......... But the true legal position is that however circumspect and cautious the approach of the High Court may lie in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecll'tion in respect of the guilt or innocence of the accused. This position has been clarified by the\n\nPrivy Council in Shea Swarup vs. The King Emperor and Nur Mohammad vs. Emperor\".\n\nThe learned Judge then referred to some of the decisions oi this Court in which various expressions were used for the purpose of expressing the cautious approach of the High Court and observed that those expressions were not intended .and should not be rea~ to have intended o introduce an additional condition in cl. (a) qf s. 423 (I) of the Code. All that the said observations are intended to emphasise is th11r the approach of the High Court in dealing wrth an appeal against acquittal ought to be cautious because as Lord Russell observed in Shea Swarup (; upra) the presumption of innocence in favour of the accused \"is not certainly weakened by the fact that he has been acquitted at his trial\".\n\nAfter stating the pri1>dple the. learned Judge dealt with the case before the Court thus :\n\n(!) A.l.R. 1945 P.C. ISi.\n\n\"Therefore, the question which we have to ask our - selves in ithe present appeals i~ whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt and 'that the contrary view taken by the trial court was erroneous. In answering this question, we would no doubt consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.\n\nBut under Art. 136 we would ordinarily be reluctant to interfere with the finding of fact recorded by the High Court particularly where the said findings are based on appreciation of oral evidence.\"\n\nIt is in this blackground that we have to consider the arguments advanced at the bar on the material on the record.\n\nNow the High Court has in tllis case examined the entire evidence at great length.\n\nIn its opinion the trial court was wrong in disblieving the prosecution evidence led to establish the recovery of blood stains from the scene of occurrence and from Gurwahi Bakhari of Ramsahai. On appreciating the evidence for rtself the High Court felt that the evidence fully established the recovery of blood stains from the places as deposed by the prosecution evidence with the result that the murder should have appropriately been considered to have taken place at l\\he spot alleged.\n\nThe High Court, then dealt with the medical evidence and after a thorough scrutiny of that evidence did not feel convinced that the testimony of the eye-witnesses could be discarded on the basis of the testimony of Dr. Panwar. The medical evidence was considered by the High Court to be shaky and it came to the considered conclusion that the evidence oi. the eye-witnesses could not be rejected on this ground. The testimony of the eye-witnesses was also closely scrutinised by the High Court and after considering the relevant aspects canvassed before it this evidence was considered reliable and trustworthy.\n\nThe fact that there might have been motive on the part of some others also to murder Ramratan was considered by the High Court llQt to be a sufficient reason to doubit the testimony of the eye-witnesses who were corroborated by \"other unimpeachable evidence\", as the High .Court put it. The defence evidence was also scrutinised and held unimpressive and unacceptable; it was not so persussive as to induce\n\ntl)e High Court to discard the prosecution evidence which had proved beyond reasonable doubt that, on the date, time and place alleged by it, Ramratan had been murdered by acc1'8ed no. 1 and his associates in prosecution of the common object of the unlawful assembly of which they were members and that subsequent to the murder they cut up the dead body and removed it from the scene\n\nof the murder with the object of screening themselves from legal punishment.\n\nNo doubt in the judgment of the High Court we do not find nny reference to the decisions in which the Privy Council and this Court have laid down the principle which the appellate court is expected to keep in view when dealing with an appeal against 1he order of acquittal. But the judgment of the High Court clearly shows that it went into all aspects on which the prosecution evidence could be criticised and concluded that the evidence was fully trustworthy and that the medical evidence, shaky as it is, did not throw any doubt on the trustworthiness of the pPosecution witnesses as to the place, time and circumstances in which Ramratan was killed. This, in our view, should be sufficient to justify interference by the High Court with the judgment of the trial court. This Court had in Gopinath Gangaram vs. State of Maharashtra(!) adopted a similar approach.\n\nHowever, in the peculiar circumstances of this case, we have also ourselves considered the evidence to which our attention was drawn and in our opinion the trial court seems to have attached undue importance to some of the observations of Dr. Panwar in the witness box, extracted in cross-examination in the trial court long after the postmortem, without correctly and fully appreciating the overall effect of his evidence considered as a whole along with the postmortem report, which had been prepared contemporaneously with the autopsy.\n\nWithout examining any ballistic expert and without even knowing what kind of fire arm had actually been used for the murder in question, the trial court had also, 'n our view, erroneously discredited the testimony of the eye-witnesses on the basis of ithe medical evidence. The evidence of the eyewitnesses was not fully and correctly evaluated : it was discredited on the basis of somewhat unsatisfactory testimony of the doctor which on proper judicial appraisal does not contradict the version of the prosecution witnesses as to the manner in which the deceased was shot at.\n\nThe evidence of alibi of Chandrapal Singh was also wrongly considered to prove his absence from the place of occurrence ret the time of the crime. Similarly the testimonv of the investigatil)g officer was doubted for reascns which appear to us unsubstantial and insupportable. The High Court on the other hand paid closer artention to the evidence and material on the record, scrutinised it with greater care and held the testimony of the eye-witnesses to be acceptable with respect to the time, place and manner of the murder of the deceased.\n\nThis evidence, in our view, was not rendered untrustworthy because of its inconsistency with the medical evidence which was also scrutinised by the High Court with greater care and anxiety. The appraisal of\n\n(I) Crl. A. 99of1969 decided on October LS, t969.\n\nRAJWA v. STATE (Dua, J.) 585\n\nthe evidence of the investigating officer by the High Court carries greater conviction, being more rational and oective.\n\nThe trial court was also in error in observing that the words in the F.I.R. \"Muka Pa Kar Ram Ratan Ko Mar Dala\" merely suggest that the \"accused had got a chance to kill him and had killed him on account oi that chance'' and that the said statement negatives the prosecution case of the accused having assembled for the purpose of killing Ramratan.\n\nThis view is wholly misconceived and is based on a misreading_ of the first information report read as a whole. The words qu9ted have been taken out of their context. Considered along with the preceding sentence in the F.l.R. these words merely suggest that the accused found an opportunity of killing Ramratan on this occasion against whom they had been nursing a grudge since a long time. The context by no means suggests that the accused persons had not assembled for the purpose of killing Ramratan if he happened to come their way,\n\nShri Garg, while comment\\ng on the appreciation oi evidence -by the High Court, criticised its conclusions on various circumslantial facts by submiNinii; that these faC'ls were not established beyond reasonablle doubt. The evidence with regard to the manner in which the party of Ramratan', deceased, and the prosecution witnesses, proceeded from Korionwali Gali was specifically criticised and it was contended that unless. each one of those circumstances. could be held proved beyond reasonable doubt the \"accused should be given the benefit. of doubt and the prosecution case should \"fail on that ground alone. The submission is not easy to accept. The appreciation of the evidence by the High Court, is our view, is unexceptionable and there is no question of any possibility of reasonable doublt on the conclusions about the time and place of the occurrence and the manner in which the deceased met with his death. In our view, therefore, there is hardly any cogent ground for holding that the conclusions of the High Court in this respect are in any way tainted with any infirmity which would , justify their reversal.\n\n But this does not conclude lhe appeal. The evidence through which we have been taken by the learned counsel at the bar has been examined by us with care and anxiety because in cases like 'the present where there are party factions, as often observed in authoritative decisions there is a tendency to jnclude the innocent with the guilty and it is extremely difficult for the Court to guard against such a danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such\n\naccused and satisfies the conscience of die court. (see Kashmira Singh vs. State of M.P.(') and Bhaban Sahu vs. The King(').\n\nIn the case in hand, no doubt, the prosecution witnesses claiming to have seen the occurrence have named all the appellants and the approver has even named those acquitted by the High Court, but in our view it would be safe only to convict those who are staled to have taken active part and about whose identity there can be no reasonable doubt.\n\nGulzarilal and Bansi exhorted his companions as a iesul't of which Chandrapal Singh shot at Ram ratan. deceased. They could be considered to be g11ilty beyond any reasonable doubt. Ramratan was seen to be carrying the head of the deceased when the prosecution wrtnesses chased the party of the accused. He too can thus t¢ cnsidered to be guilty without ghing rise 10 any doubt about his complichy. So far as the others are concerned we feel that they are entitled to benefit of doubt as it is difficult to come to a positive conclusion about their identity amongst 1hose who actually either assaulted the deceased or dismembered and carried away his dead body.\n\nThere is, however, no doubt in our mind that some out of those 'to whom the benefit of doubt is given were clearly amongst the party of the assailants and actively took part in the occurrence though their identity cannot be safeiy fixed without the risk of implicating the possible innocent. In the final result, therefore, the appeal of Gulzarilal, Bansi and Ramgopal is dismissed but that of the others is allowed and they are acquitted.\n\nV.P.S,\n\n(I) [1952] S.C.R. 526.\n\n(2) 761.A. 147.\n\nI '", "total_entities": 108, "entities": [{"text": "ORS.\n\nSTATE OF U", "label": "RESPONDENT", "start_char": 13, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "March 6, f973", "label": "DATE", "start_char": 34, "end_char": 47, "source": "ner", "metadata": {"in_sentence": "STATE OF U.P.\n\nMarch 6, f973\n\n(A. ALAGIRISWAMI."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 50, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "D. DUA", "label": "JUDGE", "start_char": 70, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 423(a)", "label": "PROVISION", "start_char": 1269, "end_char": 1278, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1279, "end_char": 1285, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1961] 3 S.C.R. 120", "label": "CASE_CITATION", "start_char": 4158, "end_char": 4177, "source": "regex", "metadata": {}}, {"text": "1963] 2 S.C.R. 405", "label": "CASE_CITATION", "start_char": 4516, "end_char": 4534, "source": "regex", "metadata": {}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 5002, "end_char": 5012, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwa/a, for the appellant.", "canonical_name": "R. K. Garg"}}, {"text": "S. C. Agarwa", "label": "LAWYER", "start_char": 5017, "end_char": 5029, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwa/a, for the appellant."}}, {"text": "D. P. Uniyal", "label": "LAWYER", "start_char": 5053, "end_char": 5065, "source": "ner", "metadata": {"in_sentence": "D. P. Uniyal a.nd 0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 5074, "end_char": 5081, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent."}}, {"text": "DuA", "label": "JUDGE", "start_char": 5146, "end_char": 5149, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court WM delivered by DuA, J.-The ten appellants have appealed to this Court by special leave under Art."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 5224, "end_char": 5232, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 5288, "end_char": 5325, "source": "ner", "metadata": {"in_sentence": "136 of the Constitution from the judgment and order of the High Court of Judicature at Allahabad dated October 31, 1968 allowing the appeal ol the State of U. P.\n\nfrom the judgment and order of the Temporary Sessions Judge, Hamirpur dated January 15, 1965 acquitting all the 15 accused per!rons, including the appellimts, of the charges under ss."}}, {"text": "ss. 148", "label": "PROVISION", "start_char": 5572, "end_char": 5579, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrapal Singh", "label": "OTHER_PERSON", "start_char": 5694, "end_char": 5710, "source": "ner", "metadata": {"in_sentence": "148 302/149 and 201, l.P.C. During the pendency of the State appeal in the High Court against the order Of acquittal, Chandrapal Singh, acused no.", "canonical_name": "Chandrapal B Singh"}}, {"text": "September 30, 1967", "label": "DATE", "start_char": 5755, "end_char": 5773, "source": "ner", "metadata": {"in_sentence": "1 (in the trial court), died on September 30, 1967 with the result that appeal against him abated on his death."}}, {"text": "ss. 302", "label": "PROVISION", "start_char": 5899, "end_char": 5906, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5929, "end_char": 5934, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 302", "label": "PROVISION", "start_char": 6018, "end_char": 6025, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "ss. 301", "label": "PROVISION", "start_char": 6109, "end_char": 6116, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6122, "end_char": 6127, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 6282, "end_char": 6288, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Pannalal", "label": "PETITIONER", "start_char": 6377, "end_char": 6385, "source": "ner", "metadata": {"in_sentence": "According to the prosecution Pannalal and Gulzarilal, appellants nos.", "canonical_name": "Pannalal"}}, {"text": "Gulzarilal", "label": "PETITIONER", "start_char": 6390, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "According to the prosecution Pannalal and Gulzarilal, appellants nos.", "canonical_name": "Gulzarilal"}}, {"text": "Achebe Lal", "label": "PETITIONER", "start_char": 6447, "end_char": 6457, "source": "ner", "metadata": {"in_sentence": "7 and 8 are brothers: so are Achebe Lal, Ramdhar and Bansi, appellants 4 to 6.", "canonical_name": "Achebe Lal"}}, {"text": "Ramdhar", "label": "PETITIONER", "start_char": 6459, "end_char": 6466, "source": "ner", "metadata": {"in_sentence": "7 and 8 are brothers: so are Achebe Lal, Ramdhar and Bansi, appellants 4 to 6.", "canonical_name": "Ramdhar"}}, {"text": "Bansi", "label": "PETITIONER", "start_char": 6471, "end_char": 6476, "source": "ner", "metadata": {"in_sentence": "7 and 8 are brothers: so are Achebe Lal, Ramdhar and Bansi, appellants 4 to 6.", "canonical_name": "Banshi"}}, {"text": "Gurwa", "label": "PETITIONER", "start_char": 6498, "end_char": 6503, "source": "ner", "metadata": {"in_sentence": "Gurwa, appellant no.", "canonical_name": "Gurwa"}}, {"text": "Bansi", "label": "PETITIONER", "start_char": 6544, "end_char": 6549, "source": "ner", "metadata": {"in_sentence": "3 is the first cousin of Bansi : Ramdayal, appellant no.", "canonical_name": "Banshi"}}, {"text": "Ramdayal", "label": "PETITIONER", "start_char": 6552, "end_char": 6560, "source": "ner", "metadata": {"in_sentence": "3 is the first cousin of Bansi : Ramdayal, appellant no.", "canonical_name": "Ramdayal"}}, {"text": "Ba.iwa", "label": "PETITIONER", "start_char": 6603, "end_char": 6609, "source": "ner", "metadata": {"in_sentence": "Ba.iwa, appellant no."}}, {"text": "Ramsahai", "label": "OTHER_PERSON", "start_char": 6669, "end_char": 6677, "source": "ner", "metadata": {"in_sentence": "1 too is related to Bansi: he is the son of Ramsahai who turned an approver and was examined as a prosecution witness."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 6909, "end_char": 6915, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 6917, "end_char": 6923, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramratan", "label": "OTHER_PERSON", "start_char": 6994, "end_char": 7002, "source": "ner", "metadata": {"in_sentence": "P.C. between most of the accused persons on the one side and the deceased Ramratan and men of his party on the other.", "canonical_name": "Ramra\\an\n\nSingh"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 7077, "end_char": 7083, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Ramdayal", "label": "PETITIONER", "start_char": 7129, "end_char": 7137, "source": "ner", "metadata": {"in_sentence": "P .C. it appears that under pressure of Ramdayal, Achche Lal and Ramdhar on unwilling Ramratan, a compromise was signed in those proceedings but as there was no genuine change of heart amongst the rival parties the Station Officer of '!", "canonical_name": "Ramdayal"}}, {"text": "Achche Lal", "label": "PETITIONER", "start_char": 7139, "end_char": 7149, "source": "ner", "metadata": {"in_sentence": "P .C. it appears that under pressure of Ramdayal, Achche Lal and Ramdhar on unwilling Ramratan, a compromise was signed in those proceedings but as there was no genuine change of heart amongst the rival parties the Station Officer of '!", "canonical_name": "Achebe Lal"}}, {"text": "Ramdhar", "label": "PETITIONER", "start_char": 7154, "end_char": 7161, "source": "ner", "metadata": {"in_sentence": "P .C. it appears that under pressure of Ramdayal, Achche Lal and Ramdhar on unwilling Ramratan, a compromise was signed in those proceedings but as there was no genuine change of heart amongst the rival parties the Station Officer of '!", "canonical_name": "Ramdhar"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 7422, "end_char": 7428, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Gulzarilal", "label": "PETITIONER", "start_char": 7448, "end_char": 7458, "source": "ner", "metadata": {"in_sentence": "P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down.", "canonical_name": "Gulzarilal"}}, {"text": "Pannalal", "label": "PETITIONER", "start_char": 7460, "end_char": 7468, "source": "ner", "metadata": {"in_sentence": "P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down.", "canonical_name": "Pannalal"}}, {"text": "Gurwa", "label": "PETITIONER", "start_char": 7470, "end_char": 7475, "source": "ner", "metadata": {"in_sentence": "P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down.", "canonical_name": "Gurwa"}}, {"text": "Ramgopal", "label": "OTHER_PERSON", "start_char": 7480, "end_char": 7488, "source": "ner", "metadata": {"in_sentence": "P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down.", "canonical_name": "Ram Gopal"}}, {"text": "Munni Banin", "label": "OTHER_PERSON", "start_char": 7556, "end_char": 7567, "source": "ner", "metadata": {"in_sentence": "It is also alleged that on the murder of one Munni Banin, Chandrapal Singh, Gulzarilal, Pannalal, Banshi, Ramgopal and Gurwa were prosecuted and Ramratan, deceased, conducted the case for the prosecution."}}, {"text": "Banshi", "label": "PETITIONER", "start_char": 7609, "end_char": 7615, "source": "ner", "metadata": {"in_sentence": "It is also alleged that on the murder of one Munni Banin, Chandrapal Singh, Gulzarilal, Pannalal, Banshi, Ramgopal and Gurwa were prosecuted and Ramratan, deceased, conducted the case for the prosecution.", "canonical_name": "Banshi"}}, {"text": "August 16, 1963", "label": "DATE", "start_char": 7773, "end_char": 7788, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA."}}, {"text": "Shivratan", "label": "WITNESS", "start_char": 7808, "end_char": 7817, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA."}}, {"text": "JagroopSingh", "label": "WITNESS", "start_char": 7827, "end_char": 7839, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA."}}, {"text": "MaheshwarDin", "label": "WITNESS", "start_char": 7849, "end_char": 7861, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA."}}, {"text": "Sugar Singh", "label": "OTHER_PERSON", "start_char": 7872, "end_char": 7883, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA."}}, {"text": "Sheoraj Singh", "label": "OTHER_PERSON", "start_char": 7942, "end_char": 7955, "source": "ner", "metadata": {"in_sentence": "On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA.", "canonical_name": "Sheoratan Singh"}}, {"text": "Gu!zarilal", "label": "PETITIONER", "start_char": 8124, "end_char": 8134, "source": "ner", "metadata": {"in_sentence": "There they noticed accused Bansi and Gu!zarilal standing in front of the door of Bansi's Gurwahi Bakhari.", "canonical_name": "Gulzarilal"}}, {"text": "Achebe Lal", "label": "PETITIONER", "start_char": 8653, "end_char": 8663, "source": "ner", "metadata": {"in_sentence": "Gulzarilal, Pannalal, Bansi and Achebe Lal were stated to be armed with pharsa, Ramdhar.", "canonical_name": "Achebe Lal"}}, {"text": "Ram Gopal", "label": "OTHER_PERSON", "start_char": 8731, "end_char": 8740, "source": "ner", "metadata": {"in_sentence": "Ramdayal, Gurwa and Ram Gopal had .kulharis while Bajwa and Tej Singh were carrying gandasas.", "canonical_name": "Ram Gopal"}}, {"text": "Bajwa", "label": "OTHER_PERSON", "start_char": 8761, "end_char": 8766, "source": "ner", "metadata": {"in_sentence": "Ramdayal, Gurwa and Ram Gopal had .kulharis while Bajwa and Tej Singh were carrying gandasas."}}, {"text": "Tej Singh", "label": "OTHER_PERSON", "start_char": 8771, "end_char": 8780, "source": "ner", "metadata": {"in_sentence": "Ramdayal, Gurwa and Ram Gopal had .kulharis while Bajwa and Tej Singh were carrying gandasas."}}, {"text": "Sheoratan", "label": "WITNESS", "start_char": 8892, "end_char": 8901, "source": "ner", "metadata": {"in_sentence": "Sheoratan (P.W. 1) and his par; men\n\nSUPREME OOURT :REPORTS\n\n{1973] 3 S, C.R.\n\ntried to advance towards the dead body o( Ramratan but the appellants and Chandrapal Singh rushed at them threatening to kill them as well."}}, {"text": "Sheoratan Singh", "label": "OTHER_PERSON", "start_char": 9112, "end_char": 9127, "source": "ner", "metadata": {"in_sentence": "Sheoratan Singh and his partymen thereupon ran away towards their village raising an alarm.", "canonical_name": "Sheoratan Singh"}}, {"text": "Shivratan", "label": "OTHER_PERSON", "start_char": 10052, "end_char": 10061, "source": "ner", "metadata": {"in_sentence": "The party of Shivratan tried to chase the accused and on corning closer they recognised the persons running away with the different parts of the dead body."}}, {"text": "Sheoratan Singh", "label": "WITNESS", "start_char": 10713, "end_char": 10728, "source": "ner", "metadata": {"in_sentence": "A report of the occurrence was written put by Sheoratan Singh (P.W.\n\n1) at his house and lodged by him at the police station about 8 miles away at about 12.30 midnight between August 16 and 17,\n\n1963."}}, {"text": "August 16 and 17,\n\n1963", "label": "DATE", "start_char": 10843, "end_char": 10866, "source": "ner", "metadata": {"in_sentence": "A report of the occurrence was written put by Sheoratan Singh (P.W.\n\n1) at his house and lodged by him at the police station about 8 miles away at about 12.30 midnight between August 16 and 17,\n\n1963."}}, {"text": "chowkidar", "label": "GPE", "start_char": 10903, "end_char": 10912, "source": "ner", "metadata": {"in_sentence": "He had gone there with the village chowkidar and five or ten other persons including Jagdeo Singh who was armed wtth a gun."}}, {"text": "Jagdeo Singh", "label": "OTHER_PERSON", "start_char": 10953, "end_char": 10965, "source": "ner", "metadata": {"in_sentence": "He had gone there with the village chowkidar and five or ten other persons including Jagdeo Singh who was armed wtth a gun."}}, {"text": "Girinder Singh", "label": "WITNESS", "start_char": 11109, "end_char": 11123, "source": "ner", "metadata": {"in_sentence": "The Station Officer not being present in the police station at that time, the report was handed over to the moharar Girinder Singh, constable (P.W.7)."}}, {"text": "Guyari", "label": "GPE", "start_char": 11538, "end_char": 11544, "source": "ner", "metadata": {"in_sentence": "The papers .relating to the repol't lodged with the police were sent to the Station Officer in vill!lge Guyari where he happened to be at that time."}}, {"text": "Geondi", "label": "GPE", "start_char": 11617, "end_char": 11623, "source": "ner", "metadata": {"in_sentence": "The said officer reached village Geondi at about 11.00 a.m. on August 17 and found the truncated body of the deceased under a peepal tree and, after preparing the inquest report, he despatched the recovered parts o( the body for postmortem examination."}}, {"text": "Ramsahai", "label": "GPE", "start_char": 12075, "end_char": 12083, "source": "ner", "metadata": {"in_sentence": "He then went to \"Gurwahi Bakhari\" of Ramsahai where the dead body was suspected to have been dismembered."}}, {"text": "ss. 87 and 88", "label": "PROVISION", "start_char": 12959, "end_char": 12972, "source": "regex", "metadata": {"statute": null}}, {"text": "August 25, 1963", "label": "DATE", "start_char": 13076, "end_char": 13091, "source": "ner", "metadata": {"in_sentence": "12 to 15 in the trial court were arrested on August 25, 1963, the remaining accused having surrendered in court on various dates."}}, {"text": "J. S.\n\nPanwar", "label": "OTHER_PERSON", "start_char": 13241, "end_char": 13254, "source": "ner", "metadata": {"in_sentence": "The postmortem examination was performed on the dead body of Ramratan bi\\' Dr. J. S.\n\nPanwar, Medical Officer-in-charge of Mahoba on August 18."}}, {"text": "Mahoba", "label": "GPE", "start_char": 13285, "end_char": 13291, "source": "ner", "metadata": {"in_sentence": "The postmortem examination was performed on the dead body of Ramratan bi\\' Dr. J. S.\n\nPanwar, Medical Officer-in-charge of Mahoba on August 18."}}, {"text": "August 18. 1963", "label": "DATE", "start_char": 13295, "end_char": 13310, "source": "ner", "metadata": {"in_sentence": "The postmortem examination was performed on the dead body of Ramratan bi\\' Dr. J. S.\n\nPanwar, Medical Officer-in-charge of Mahoba on August 18."}}, {"text": "Panwar", "label": "JUDGE", "start_char": 13636, "end_char": 13642, "source": "ner", "metadata": {"in_sentence": "The following ante-mortem injuries on the trunk of the dead body were observed by Dr. Panwar :\n\n\"l. Bruise 6''X5\" on !", "canonical_name": "Panwar"}}, {"text": "Kharela", "label": "GPE", "start_char": 14247, "end_char": 14254, "source": "ner", "metadata": {"in_sentence": "denied their complicity, Chandrapal Singh pleadmg al1b1, cla1mmg that on the morning of August 16, 1963 at about 5 a.m. he had left for village Kharela, where he remained for three or four hours, and in an auction there purchased a buffalo from the cattle pound."}}, {"text": "Bambhari", "label": "GPE", "start_char": 14388, "end_char": 14396, "source": "ner", "metadata": {"in_sentence": "From there he went to Bambhari and a; he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.\n\nThe trial court again summoned Dr. Panwar and examined him as C. W. 1 on October 22, 1964."}}, {"text": "Panwar", "label": "WITNESS", "start_char": 14547, "end_char": 14553, "source": "ner", "metadata": {"in_sentence": "From there he went to Bambhari and a; he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.\n\nThe trial court again summoned Dr. Panwar and examined him as C. W. 1 on October 22, 1964."}}, {"text": "October 22, 1964", "label": "DATE", "start_char": 14585, "end_char": 14601, "source": "ner", "metadata": {"in_sentence": "From there he went to Bambhari and a; he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.\n\nThe trial court again summoned Dr. Panwar and examined him as C. W. 1 on October 22, 1964."}}, {"text": "November 4, 1963", "label": "DATE", "start_char": 14660, "end_char": 14676, "source": "ner", "metadata": {"in_sentence": "He had already been examined in the c<immitting court on November 4, 1963."}}, {"text": "Panwar", "label": "JUDGE", "start_char": 14985, "end_char": 14991, "source": "ner", "metadata": {"in_sentence": "During the course of his examination in the court of the committing magistrate Dr. Panwar had, after giving' full details of the in.juries on the person of the deceased as noticed by him and after proving the postmortem report, stated :-\n\n\"I cannot say it correctly which of the gunshot wounds was a wound of exit which was the wound of entrance.", "canonical_name": "Panwar"}}, {"text": "Ramratan Singh", "label": "OTHER_PERSON", "start_char": 18594, "end_char": 18608, "source": "ner", "metadata": {"in_sentence": "On this reasoning the trial court felt that the medical evidence instead of supporting the prosecution case, establlished that the prosecution version of Ramratan Singh having been shot at from behind was unbelievable.", "canonical_name": "Ramra\\an\n\nSingh"}}, {"text": "Ramra\\an\n\nSingh", "label": "OTHER_PERSON", "start_char": 18979, "end_char": 18994, "source": "ner", "metadata": {"in_sentence": "because, according to the prosecutioµ story, Ramra\\an\n\nSingh, deceased, had been shot at from that distance.", "canonical_name": "Ramra\\an\n\nSingh"}}, {"text": "Modi", "label": "OTHER_PERSON", "start_char": 19565, "end_char": 19569, "source": "ner", "metadata": {"in_sentence": "The court then commented upon the result of this demonstration and also referred to some observations in Modi's Textbook on Medical Jurisprudence and Texicology and came to the conclusion that the dispersal of the pellets suggests that the deceased had been shot at from close range from the front and not from behind from a distance of 42!"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 20541, "end_char": 20547, "source": "regex", "metadata": {"statute": null}}, {"text": ".Baasi", "label": "OTHER_PERSON", "start_char": 21128, "end_char": 21134, "source": "ner", "metadata": {"in_sentence": "their having formed an unlawful assembly and having walled in front of .Baasi's house for killing Ramratan Singh, deceased."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 21360, "end_char": 21366, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrapal Singb", "label": "OTHER_PERSON", "start_char": 21593, "end_char": 21609, "source": "ner", "metadata": {"in_sentence": "Chandrapal Singb's plea of alibi was also accepted as according to the trial court the entry about bis visit to village Barwah could not be held to be untrustworthy.", "canonical_name": "Chandrapal B Singh"}}, {"text": "Barwah", "label": "GPE", "start_char": 21713, "end_char": 21719, "source": "ner", "metadata": {"in_sentence": "Chandrapal Singb's plea of alibi was also accepted as according to the trial court the entry about bis visit to village Barwah could not be held to be untrustworthy."}}, {"text": "Ramsahai", "label": "WITNESS", "start_char": 21966, "end_char": 21974, "source": "ner", "metadata": {"in_sentence": "The testimony of Ramsahai (P.W. 4) the approver was also considered to be unworthy of credence and it was observed that be had not implicated himself in the offence."}}, {"text": "PimWar", "label": "JUDGE", "start_char": 22866, "end_char": 22872, "source": "ner", "metadata": {"in_sentence": "On scru1:iny of the testimoaf of Dr. PimWar that court came t<J the eonchlsli>n that bis evidlinc.e left the question as to wheillier the wounds on the chest oc the\n\nwounds on the back were the wounds of entry in a state of uncertainty."}}, {"text": "Chandrapal B Singh", "label": "OTHER_PERSON", "start_char": 26397, "end_char": 26415, "source": "ner", "metadata": {"in_sentence": "The State appeal was accordingly allowed in part but Chandrapal B Singh having died in the meanwhile on September 30, 1967 the appeal against him was said to have abated.", "canonical_name": "Chandrapal B Singh"}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 26687, "end_char": 26697, "source": "ner", "metadata": {"in_sentence": "In this Court Shri R. K. Garg, learned counsel for the appellants addressed elaborate arguments in criticising the judgment of the High Court.", "canonical_name": "R. K. Garg"}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 27689, "end_char": 27693, "source": "ner", "metadata": {"in_sentence": "Shri Garg submitted that in the case before us also the High Court had failed to realise the limitation within which it had to function and the caution it had to observe in considering the appeal against the appellants' acquittal."}}, {"text": "S6", "label": "PROVISION", "start_char": 28812, "end_char": 28814, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhubneshwar Manda", "label": "OTHER_PERSON", "start_char": 29421, "end_char": 29438, "source": "ner", "metadata": {"in_sentence": "The passages from the three authoritative judicial pronouncements of this Court quoted in Bhubneshwar Manda I (supra) clearly illustrate the basic line of approach the High Court is expected to adopt while dealing with the State appeals from the judgments of acquittal."}}, {"text": "Shea Swarup", "label": "OTHER_PERSON", "start_char": 29710, "end_char": 29721, "source": "ner", "metadata": {"in_sentence": "This view has been consistently and uniformly taken ever C since the basic decision of the Privy Council in Shea Swarup\n\n(supra), laying down the broad guidelines of approach to be adopted by the High Courts."}}, {"text": "s. 423", "label": "PROVISION", "start_char": 31086, "end_char": 31092, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 31720, "end_char": 31734, "source": "ner", "metadata": {"in_sentence": "As solll!l of those observations have very frequently been considered (wrongly in our opinion) to lay down in law a rigid limit on the power of the High Court while hearing an appeal against acquittal, we consider it necessary to refer to the decision of this Court in M. G. Agarwal H vs. State of Maharashtra(') where Gajendragadkar J. (as be then was) speaking for a bench of five Judges, after referring to various\n\n(I) [1962] Suppl S.C.R. 104."}}, {"text": "S1", "label": "PROVISION", "start_char": 31900, "end_char": 31902, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 423", "label": "PROVISION", "start_char": 32009, "end_char": 32020, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 423", "label": "PROVISION", "start_char": 34031, "end_char": 34037, "source": "regex", "metadata": {"statute": null}}, {"text": "Russell", "label": "OTHER_PERSON", "start_char": 34233, "end_char": 34240, "source": "ner", "metadata": {"in_sentence": "All that the said observations are intended to emphasise is th11r the approach of the High Court in dealing wrth an appeal against acquittal ought to be cautious because as Lord Russell observed in Shea Swarup (; upra) the presumption of innocence in favour of the accused \"is not certainly weakened by the fact that he has been acquitted at his trial\"."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 35099, "end_char": 35107, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrapal Singh", "label": "WITNESS", "start_char": 39476, "end_char": 39492, "source": "ner", "metadata": {"in_sentence": "The evidence of alibi of Chandrapal Singh was also wrongly considered to prove his absence from the place of occurrence ret the time of the crime."}}, {"text": "October LS, t969", "label": "DATE", "start_char": 40236, "end_char": 40252, "source": "ner", "metadata": {"in_sentence": "A. 99of1969 decided on October LS, t969."}}, {"text": "Ram ratan", "label": "OTHER_PERSON", "start_char": 43564, "end_char": 43573, "source": "ner", "metadata": {"in_sentence": "Gulzarilal and Bansi exhorted his companions as a iesul't of which Chandrapal Singh shot at Ram ratan.", "canonical_name": "Ramra\\an\n\nSingh"}}]}
{"document_id": "1973_3_587_623_EN", "year": 1973, "text": ", p\n\nWORKMEN OF MESSRS FIRESTONE TYRE &\n\nRUBBER COMPANY OF INDIA (P.) LTD. v. \"-iANAGEMENT & OTHERS (With connected appeals)\n\n March 6, 1973 [l. D. DUA & C .. A. VAIDIALINGAM, JJ.] , JndustriGi Disputes Act 1947 as anze1i.ded by Industrial Disputes (Anzendnzent) Act 1971-Sect:on lIA, interpretation of-Power of Tribunal ho•v far nzodificd-Section whether applicable to disputes referred before 15-12-71, when ft ca1ne into force. \" The Industrial Disputes (Amendment) Act 1971 inter alia introduced s .. llA int:J the parent Act of 1947. The new Section provided that if in the course of the adjudication of an Industrial dispute relating to the discharge or dismissal of a workm1:i a Labour Court, Tribunal, or Na- . tionat Tribunal is satisfied that the o:-der of d:scharge or dismissal v1as.\n\nnot justified, it may, by its a\\vard, set aside the order of discharge or dismissal and direct reinstatement of the workmen or reduce punishment etc.\n\nThe proyiso to the section laid do¥/n that i:i a1y procecdirig u:der the\n\nsectio:i the Court or Tribunal in question shall rely only on the material; on re:ord arid shall not take any fresh evidence jn relatio:i to the matter • . The sectio:i cam~ into force \\Vith effect from D.'!;;:embcr 15, 1971. In the .\n\npi-esent appeals by special \"leave the two questions that arose for considerafon \\\\ere: (i) whether s. llA had made any changes in the existing legal situatio:i as laid do\\vn by this Cou':\"t and if so, to \\vhat extent; (ii) wh:!ther the section was app!icable to industrial disputes which had been already referred for adjudication and were pending as on December 15, 1972.\n\nHELD : (i) The statement of objects and reasons cannot be taken into account for the purpose o\"f interpreting the plain words of the sec- .tio:i. But it gives an indicatiori as _to what the Legislative wanted to achieve ..\n\n~608 A-BJ\n\n(ii) The .Ac-t is \"a beneficial piece of legislation enacted in the interest cf employees. It is well settled that in construing the provisions of . a \\velfare legislation, courts should adopt, what is described as. a beneficent rule .of construcfo:t. If t\\vo constructions are reasonably possible to be placed on the section, it follows that the constructio~ which furthers the policy and object of the Act and is more. beneficial to the employees has to be preferred.\n\nThe interpretation must be liberal enou~ to achieve the leg'.slative purpose. It must still be in accordance with the plain v; orCs: of the statute or the section and must not do violence to the language useJ by the legislature. It \\vill further have to be found from the v.rords of the section whether it has altered the entire law as laid down in the existing decisions and, i'f so, whether there is a clear expression of that intention in the language of the sect:on. [608 GH; 609 kC]\n\n (iii) Both in respect of cases where a domestic enquiry has been held as also in cases \\\\'hen the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under s. J lA, about the guilt or otherwise of the workmen concerned is that of the Tribunal.\n\nIt has to consider the evidence and come to a conclusion one way or other.\n\nEven in cases where an enquiry has been held by an Cmployer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case anO hold that no misconduct is proved. ' .\n\n. [611 A-CJ The contention that the stage for interference undersection llA by the Tribunal is reached only when it has to consider the punishment after\n\nhaving accepted the finding of guilt recorded by the employee, could not A be accepted.. The Tribunal under s. l lA can consider the question of guilt as well as of punishment. It can also alter the punishment imposed by an employer. [pll C-H; 612 AB] It was specifically contended before the Court in Workmen of Motipur Sugar Factories (Private) Limited, that when an employer had held no enquiry as required by the Standing Orders, it was not open to him to\n\naddce evidence before the Tribunal for the first time and justify the order of discharge. This contention was rejected by this Court and it was held that if the enquiry was defective or no inquiry had been held, as required by the Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify, on evidence as well that its order of dismissal or discharge was proper.\n\nThere is no provision either in the Industrial Employment (Standmg Orders) Act 1948 or in the Industrial Disputes Act which states that an order of dismissal or di&- charge is illegal if it is not recorded by a proper and valid domestic enquiry.\n\nTherefore, the contention that such an enquiry being illegal, the Tribunal has now under s. llA no alternative but to order reinstatement could not be accepted.\n\nMoreover tho Industrial Disputes Act cannot be differently applied to employees who are governed by tho Standing Orders Act and those who are not governed by it.\n\n~612 H; 613 A-0]\n\nTho expression 'materials on record' occurring iii tho proviso to s. !IA cannot be confined only to tho materials which wore available at tho domestic enquiry.\n\nOn tho other hand the 'materials on record' in the proviso must be held to refer to materials on record before the Tribunal.\n\nThey take io (I) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) the above evidence and in addition any 'further evidence led before the Tribunal, or (3 J evidence placed before the Tribunal for the first time in support of the action taken by the employer as well as the evidence adduc& by the workmen contra.\n\nThe expression 'fresh evidence' has to be read in the context in which it appears, namely, as distinguished from the expression 'materials on record'. The Tribunal, for the purpose of determining the question of misconduct or punishment or relief to be granted to workmen, has to act only on the basis of the 'materials on record\" before it and cannot call for fresh evidence 3.s an appellate authority can normally. do. [613H; 614 AH; 615ADl\n\n(iv) The words \"i'n a proceeding under this section\" in the proviso to s. l lA are very significant.\n\nThere cannot be a \"proceeding under this section,' before the section has come into force. A proceeding under that section can only be on or after 15-12'-1971. That also gives an indication that section llA applies only to disputes which are referred for adjl.1\"' dication after the section has come into !Orce.\n\nThere arc no express words in s. llA which would make it applicable even to disputes referred before it came into force nor could such an inference be gathered by nec .. sary intendment,, The section therefore does not apply to proceedings before 15-12-1971. [.619 E-0; 622 D-01\n\nThe following cases were referred to in the judgment :\n\n(1) Indian Iron & Steel Co. Ltd .. anli Another v. Their Workmen [1958] S.C.R. 667, Buckingham and Carnatic Company Ltd. by its Manag. ing Agents Binny & Co., Madras v. Workmen of the Company represented\n\nby the Madras Labour Union and Madras Texti~ Workmerl's Unibn, (1952] Labour Appeal Cases 490, Shri Ram Swarath' Singh Righa, MuUlf ferpur v. The Management of the Belsund Sugar Company limited Righa, Muzafferpur, [1954] Labour Appeal Cases 697; The Punjab Na'.\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO. 589 (Vaidialingam, J.) tional Bank Ltd. v. Workmen [1960] 1 S.C.R. 806, Mjs. Bl1arat Sugar Mills Ltd. v. Shri Jai Singh and Others, [1962] 3 S.C.R. 684, Management of Ritz Theatre (P) Ltd. v. Its Workmen, [1963] 3 S.C.R. 461, Khardah Co. Ltd. y, Their Workmen, [1966] 3 S.C.R. 506, Workmen of Motipur Sugar Factory (Private) Limited v. Motipur Sugar Factory, [1965] 3 S.C.R. 588, State Bank of India v. R. K. Jain & Ors., [J9n] 1 S.C.R. 755, Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, {1972] l L.L.J. 180.\n\n\nK. D. Sethi, Factory Manager, The Model Mills , Nagpur Ltd., [1966] 2\n\n\nCIVIL APPELLAT.E JURISDICTION : Civil Appeal No. 1461 of 1972.\n\nAppeal by special leave from the judgment and . order dated April 21, 1972 of the Industrial Tribunal, Maharashtra in I.T.\n\nNo. 307 of 1968.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1995 & 1996 of 1972.\n\nAppeals by special leave from the Awards dated June 28 and June 27, 1972 of the Fifth Labour Court, Bombay in References Nos. {IDA) 268 and 270 of 1970.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2336 of 1972.\n\nAppeal by Special Leave from the judgment and order dated June 27. 1972 of the Fifth Labour Court, Bombay in Ref. (IDA) F No. 213 of 1970.\n\nIndira Jai Singh, A. D. Shastri and Umffla Simr, for the appellant (in C.A. No. 1461).\n\nM. C. Setalvad, V. M. Tarkunde and Rameshwar Nath, for the respondent No. 1 (in C.A. No. 14~1) .\n\n.G F. D. Damania, D.R. Nath, Bhuvanesh Kumari, 0. C. Mathur, Ravinder Narain, J. B. Dadachanji, for the Interveners (Mahindra & Mahindra) .\n\nMadan Mohan, for the intervener (Kulwant Singh).\n\nM. C. Stalvad, F. D. Damania M. A. Gagrat, S. M. Patel and 'H I. N. Shroff for the appellant. (in C.A. No. 1995).\n\nM. A. Gagrat,_ S. M. Patel and I. N. Shroff, for the appellant (in C.A. No. 1996).\n\nS. J. Deshmukh and Indira Jai Singh, for the respondents. (in C.A. Nos. 1995-96 and C.A. No. 2386) and for the Intervener (M. Vasudeo) (in C.A. No. 1461).\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In these appeals, by special leave, two a. common questions arise for consideration :-\n\n(1) proper interpretation of section llA of the Industrial Disputes Act; and\n\n(2) whether the above section applies to industrial disputes which have already been referred to for adjudication and were 'pending as on 15-12-1971.\n\nSection I IA was incorporated in the Industrial Disputes Act 1947 (hereinafter referred to as the Act) by section 3 of the Industrial Disputes (Amendment) Act 1971 (hereinafter referred to as the Amendment Act). The Amendment Act passed by Parliament, received the assent of the President on December 8, 1971.\n\nSub-section 2 of section I provided for its coming into force on such date as the Central Government by notification in the official gazette appoints. The Central Government by notification No. F.S.-11013/1/71-LR.I dated 14-12-1971 appointed the 15th day of December, 1971, as the date on which the said Act would come into force.\n\nAccordingly, the Amendment Act came into force with effect from December 15, 1971. The Amendment Act introduced various amendments to the Act. In particular by section 3, it inserted the new section I IA in the Act.\n\nThe new section I IA so inserted runs as follows :-\n\nPowers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen\n\n\"11 A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tri- . bunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismiS!ial as the circumstances of the case may require;\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO. 5 9 t (Vaidialingam, J.) Provided that in any proceeding under this section the Labour Court, Tribunal or National Tn'bunal, as the case may be, shall rely only on the materials on record and shall not take any fresti evidence in relation to the matter\".\n\nRegarding section 11 A; in the Statement of objects and reasons it is stated as follows :-\n\n\"In Indian Iron and Steel Company Limited and another v. their workmen (AIR 1958 S.C. 130 at 138), the Supreme Court, while considering the Tribunal's power to interfere with the managemenfs decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management.\n\nThe International Labour Organisation, in its recommendation (No.· 119) concerning termination of employment at .the initiative of the employer, adopted in June 1963, has recommended th!lt a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among ofhers; to a neutral body such as an arbitrator, a court, an arbi' tration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances refating to the case and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it findg fhat the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief.\n\nIn accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding <\"elating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the. power in cases \"'.herever necessal!', to st aside the order of discharge or dismissal and d1rect remstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief t? the wor~ men including the award of any lesser pumshment m lieu of discharge or dismissal as the circumstances of the\n\ncase may require. For this purpose, a new section l lA A is propOsed to be inserted in the Industrial Disputes Act, 1947 , ....... \"\n\nThere is no controversy that in all the four appeals, the reference had been made long before the date of coming into force of section 1 IA and the industrial disputes were pending adjudica- B lion at the hands of the concerned authorities on 15-12-1971. In respect of such disputes the concerned labour court or Tribunal had to consider the quesiion whether section 11 A applies to those proceedings and also the ftirther question as to the powers to be exercised by them in respect of such disputes.\n\nOn behalf of the companies, it appears to have been urged that the section does not apply to the disputes which had already been referred to for adju- C dication and that the management had a right to adduce evidence to justify the action taken against the workmen even though no enquiry had been held before the order of discharge or dis missal had been passed and al'so in caSes where the enquiry held is found to be defective. This claim was resisted on hebalf of the labour on the ground that the section applies to all proceedings D which were pending as on 15-12-1971 and that the management, if it had not held any enquiry or if the enquiry conducted by it was found to be defective, has no right to adduce evidence before the authority to justify its action. Different views have been expressed by the Tribunals concerned as will be seen from what is stated below:- E\n\nIn Civil Appeal No. 1461 of 1972, the Reference (l.T.) No. 307 of 1968 related to the question of reinstatement of a number of workmen, who had been dismissed. The Industrial Tribunal, Maharashtra, Bombay, considered the question whether section llA applies to the reference, which had been made as early as 12th August, 1968. The Industrial Tribunal by its order dated April 21, 1972 has held that the restrictions imposed upon the powers of the Labour Court or Tribunal to interfere with orders of dismissal passed by the management, have been removed by section l lA, which has the effect of affecting tfie substantive part of the law of master and servant and, therefore, the said section has no retrospective effect. The Tribunal has held that the concerned reference will have to be disposed of as though section 1 lA was not in the statute. The workmen have come up in appeal.\n\n. Civil Appeal No. 1995 of 1972 arises out of the order dated 28-6-1972 of the Fifth Labour Court at Bombay in Reference (l.D.A.) No. 268 of 1970. The Labour Court has held that section 11A applies even to all proceedings pending adjudication as on 15-12-1971, as it only .deals with matters of procedure. The said Court has further held that the new section makes it clear that\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO. ~93 (Vaidialingam, J.) there must be a proper enquiry by an employer before dismissing or discharging a workman and that if no enquiry' has been held or if the enquiiy held is found to be defective, there is no option but to reinstate the employee. In this view, the Labour Court has further held that an employer under those circumstances has no right to adduce evidence in the adjudication proceedings to justify his action. In civil Appeal No. 1996 of 1972 [arising out o( Reference (LO.A.) No. 207 of 1970] and in Civil Appeal No. 2386 of 1972 [arising out of Reference (LO.A.) No. 213 of\n\n1970], the same Labour Court has expressed similar views in its orders dated June 27, 1972. Against all these three orders the company has filed appeals.\n\nThe management and the workmen concerned in certain other disputes have also intervened in these appeals and they have placed before us copies of the orders passed by other authorities.\n\nIt will be useful to refer to the views expressed by some of those authorities.\n\nIn Reference (LO.A.) No. 79 o( 1971, the Second Labour Court in its order dated April 13, 1972 has held as follows:- Section 11 A gives power to the Labour Court to scrutinise domestic enquiries similar to that of ..an appellate court.\n\nThe said section comes into play only after the court has come to a conclusion that the enquiry held by an employer was proper. Both parties have still a right to adduce evidence to prove the legality or otherwise of the domestic enquiry.\n\nEven if no enquiry has been held by an employer or if the enquiry is held to be defective, reinstatement cannot be ordered straightway as urged by th~ labour. On the other hand, an employer has got a right to adduce evidence to justify the action taken by him. But section 1 lA deals only with procedural matters and, therefore, it operates retrospectively.\n\nSimilarly in Reference (LO.A.) No. 41 of 1956, the First Labour Court Bombay in its order dated January 3, 1973, has held that the section is retrospective in its operation and that the employer has got a right to lead evidence before the Labour\n\nCourt. if the domestic enquiry has not been held or is found to be defective.\n\nFrom what is stated above, it is clear that there is a very wide divergence of views expressed by the various authorities, both regarding the applicability of the section to pending proceedings as well as the interpretation to be placed on the said section.\n\nWe will first take up the question regarding the proper interpretation to be placed on section I IA. The contentions of Mr.\n\nOeshmukh. learned counsel, who advanced the main arguments irr this regard on behalf of the workmen are as follows :-·\n\nOriginally limitations had been placed by judicial decisions in\n\nrespct of the jurisdiction of the Labour Tribunals when considering the action of an employer in the matter of discharge or dismissal of a workmen. lt a domestic enquiry had been held by an .employer on the basis of which a workman is dismissed or discharged, the Labour Courts can interfere with the decision of the management only if the domestic enquiry is vitiated by the circumstances mentioned by this Court m Indian Iron & Steel Co.\n\nLtd. & Another v. Their workmen(1). Once the Tribunals hold that the domestic enquiry has been conducted properly and the action of an employer is bona fide and the conclusions arrived at therein are plensible, they had no juisdiction to substitute their own judgment.\n\nIn cases where the misconduct is founci to be proved by a valid and proper domestic enquiry, the Tribunal had no power to alter the punishment imposed by an employer. Even in cases where the domestic enquiry is held to be defective or even if no domestic enquiry had been conducted by an employer before passing an order of termination or discharge, the employer was given an opportunity to adduce evidence before the Tribunal to justify his action.\n\nOnce the Tribunal accepts that evidence and holds that the misconduct is pro\\\\ed, it had no power to interfere with the discretion of the management regarding the quantum of punishment.\n\nThe abo\\>e position has been completely changed by section ! !A. It is now obligatory on an employer to' hold a proper domestic enquiry in which all material e.vidence will have to be adduced.\n\nWhen a dispute is referred for adjudication and it is found that the domestic enquiry conducted by the management is defective or if it is found that no domestic enquiry at all had been conducted, the order of discharge or termination passed by the employer becomes, without anything more, unjustified and the Labour Tribunals have no option but to direct the reinstatement of the workmen concerned, as his discharge or dismissal is illegal. Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct.\n\nEven if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has now power to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty.\n\nIn such circumstances, the Tribunal can also give any other relief to the workman, including the imposing of a lesser punishment. In cases where an employer had not conducted any enquiry or when the enquiry conducted by him is held to 'be defective, the employer wi11 not be given any opportunity to\n\n(I) [1958] S.C.R. 6€7,\n\nWORKMEN V • . FIRESTONE TYRE & RUBBER CO. 595 (Vaidialingam, J.) adduce evidence before the Labour Tribunal for justifying his action.\n\nVarious decisions of this court have emphasised that there is an obligation on the part of an employer to hold a proper enquiry before dismissing or discharging a workman. And it has also been stated that the enquiry should conform to certain well defined principles and that it should not be an empty formality. 1f the management, being fully aware of this position in law, does not conduct an enquiry or conducts a defective enquiry, the order passed by it is illegal and it cannot take advantage of such illegality or wrong committed by it and seek a further opportunity before the Tribunal of adducing evidence for the first time.\n\nGenerally, the Standing Orders al, so provided for the conduct of an enquiry before imposing a punishment. The Standing Orders have been held to be statutory terms of conditions of service. If an employer does not conform to the provisions of the Standing Orders, he commits an illegality and an order passed, which is illegal, has only to be straightway set aside by the Tribunal. Decisions of this Court, while recognising that an opportunity has to be given to an employer to adduce evidence before the Tribunal for the first time, have not 'given the importance to the effect of a breach of a statutory obligation committed by an employer in not conducting a proper and valid enquiry as per the Standing Orders.\n\nThis anomaly has now been rem.oved by the legislature.\n\nThe above is the line of argument adopted by Mr. Deshmukh.\n\nHe referred us to certain decisions of this Court in support of his contentions that the opportunity that was so far directed to be given to an employer to adduce evidence for the first time before the Tribunal was not by way of recognising a right in an employer ?ut rea!IY for the benefit of the workman, who will otherwise be\n\nJeopardi~ by a further enquiry being conducted by the employer after fi!ling up the lacunae that are found in the original enquiry.\n\nH~ pomted out that when the Tribunals have now been clothed with .full poer to reappraise the evidence adduced in the domcitic enqmry, which an employer is under obligation to conduct and when they have ~1.1 clothed with powers to hold as unutified nf orer of termmation because of the enquiry oroc~, didg being\n\ne eb~;: 1r on. f!le ground hat no enquiry at all was conducted, dence before g~n~ ~~ ep oye[ an opportunity to adduce eviwas prepared to ac; p~at ~eno~~C:, ftuf:ies.\n\nMr. Desukh\n\n~u~~ ~enc.e beffore the Tri?unal, strictl:iiuleJ11~0 pt:;:-~a1~ oloyer.\n\nTu!':~:i o a .domes!ic enuiry conducted by an eml !Ajn support 0/~L ~~te~~n h:l~ ?n t~~ oroviso to section employer to conduct a ro :t 1. Is 0 1g_atory now for an an order of dismissal or is::r; d valid enquiry before passing\n\nThe above contentions of Mr. Deshmukh have been adopted by Miss dira Jai Singh, Mr. Madan Mohan and Mr.13handare, counsel appearing for certain other workmen.\n\nMr.\n\nBhandare, however, was prepared to take a slightly different stand regarding; the proviso to section l!A. According to_ him only such evidence, which could and should have been produced by the parties in the domestic enquiry, is not allowed to be adduced before the Tribunal ' Mr. Damania, learned counsel, who advanced the leading arguments on behalf of the employers broadly contended as follows:- The restrictions imposed upon the jurisdiction exercised by the Labour Tribunals in respect of disputes arising out of orders passed by way of dismissal or discharge, as laid down by this Court in a number of decisions over a period of years, have not been altered by the new section. The right of an employer 'to manage his affairs in his own way, provided he does not act arbitrarily, is kept intact. The commo~ law relationship of master and servant was recognised, except to the extent that it was modified by the decision of this Court in lizdian Iron & Steel Co. Ltd. & Another v. Their workmen(1). All employer is expected to liold a domestic enquiry before an order of dismissal or termination is passed.\n\nHe is also bound to follow, in such cases, the principles of natural justice and the procedure laid down by the relevant Standing Orders.\n\nThe Tribunal will not interfere with the findin3 recorded by an employer in a proper enquiry merely on the ground that it would have come to a different conclusion.\n\nThe punishment to be noted out was entirely within the powers and jurisdiction of an employer and it was no part of the jurisdiction of a Tribunal to de<:ide whether the said punishment was justified except in very rare cases where the punishment imposed is grossly out of proportion, so as to suggest victimisation or unfair labour practices. This was the .position vis-a-vis the management as on 15-12-1971.\n\nBut under section llA, after the Tribunal holds tha~ the enquiry has been conducted properly by an employer and that the finding about misconduct is correct, it has jurisdiction to consider whether the punishment requires modification. If it holds that the punishment has to be modified, it has power to do so and award a lesser punishment.\n\nSection 1 lA comes into effect only at the time when the Tribunali considers about the punishment to be imposed. While previously the Tribunal had no power to interfere with the punishment, it is now clother with such a power. This is the only modification regarding the powers of the management that has been introduced by section llA. Neither the fact that no enquiry at all .has been\n\nbelil by an employer nor the circumstance that the enquiry, if any\n\n(ll [1958] S.C.R. 667.\n\nWORKMEN v. FIRESTONE TYRE & RUBBER CO. 597 (Vaidialingam, J,) \\ held, is found to be defective, stands in the way of an employer adducing evidence before tiie Tribunal for the first time to jmtify his action taken agains~ a w01kman.\n\nMr; Setalvad, learned counsel, appearing for Larsen & TOllbro Ltd, adopted these contentions of Mr. Damania. He, howner, referred us to the provisions of section 3 3 of the Act. According to him when tlie previous permission or an approval for disJni, s. ing discharging a w01kman has been obtained under section .33, the Tribunal concerned would have. applied its mind and safuficd itself at least prima facie that the proposed action of the employer was justified. Such satisfaction may _be airived at on perusal of the records of clomstic enquiry, if one had been conducted. or on tk basis of evidence placed bef01e the Tribunal by an employer f01 the first time. The said order of dismissal .or discharge can nevertheless be the subject of an industrial dispute. When such dispute is being adjudicated by the Tribunal, the records pertaining to the proceedings under section 33 will be relied on by an employer as material on record. It will lead to an anomaly it it is held that the Tribunal can straightaway order reinstatement ly because no domestic enquiry has been held or the domestic.enquiry conduc:ed is defective fOI one reason or other. Therefore, he pointed out that the pr0per way of interpreting section UA would be to hold that it comes into play after a Tribunal has.hcld the enquiry proceedings conducted by the management to. be 1'%0per and the finding of guilt justified. It is then that the Trib?l!lal\n\ncan consider whether the punishment imposed. is justified. If it is of the opinion that the punishment is not justified, it can aller the same.\n\nWe have broadly indicated aboVe the stand taken on behalf •f the workmen and the employers regarding the interpretation of section l lA.\n\nBef01e we proceed to col)Sider the contents of the sectio•, having due regard to the arguments advanced before us, it ii! necessary to indicate the legru position as on 15-12-1971 regarding the powers of a Labour Court or Tribunal when deciding a dispute arising out of dismissal or discharge of a workman. Thcrt are several decisions of this Court, as .also of the Labour Appellate Tribunal laving down the principles in this regard, but we will refer only to a few of them.\n\nIn its very early decision in Buckingham and Cerna tic. Com pany . Ltd, by its Managing A11ents Binny &: Co., Madras v.\n\nWorkers of the Comvanv revresented by the\"Madras Labour Union, and Madras Textile Workers Union(•), the Labour Appel-\n\n(!} [19~2] Labour AJipeal Cases490. 6-L761SupCI73\n\nlate Tribunal held that the decision of the Management in relation to i:he charges against the employee will not prevail-if (a) the~ is want of bana fide, ot ( b) it is a case of victimisation or unfair labour practice or violation of the principles of natural justice, or ( c) there is a basic errer of facts or, ( d) there has been perverse finding on the materials.\n\nIt was further laid down that an employer ought to have the right to decide what the appropriate punishment for a misconduct should be and its exercise of the discretion in this regard should not be interfered with by a Tribunal unless the punishment is unjust. In Shri Ram Swarath Sinha, Righa, Muzafjerpur v. The Management of the Belsund Sugar Company Limited, Righa Muzaffarpur(' ), the Labour Appellate Tribunal has recognised the right of a management to ask for permission to adduce evidence for the first time before the Tribunal to justify its action though no domestic enquiry had been held by it.\n\nIt has been emphasised that the permission asked for cannot be thrown out in limine on the ground that the management had not made any previous enquiry into the charge. We may say that this decision was in respect of a proceeding under section 33 of the Act, but, as held by this Court, there is no difference in such matters whether the Tribunal was deciding a dispute referred to it under section 10 or an application filed before it under section 33 of the Act.\n\nIn discussing the nature of the jurisdiction exercised by an Industrial Tribunal when adjudicating a dispute relating to dismissal or discharge, it has been emphasised by this Court in\n\nhzdian Iron & Steel Co. Ltd.(2 ) as follows :\n\n\"Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It wiJl interfere\n\n(i) when there is want of good faith; (ii) when there is victimisation or unfair Labour practice, (iii) when the management has been gui!tv of a basic error or violation of a nrincinle of natural justice. and (iv) when on the materials the finding is completely baseless or perverse\". ·\n\nrtf1~4J Labour APpeaJ Cases 697.\n\n(2) 1958 S.C.R. 667.\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO, 599 ( Vaidialingam, J.)\n\nThis is the decision which has been referred to in the Statement of objects and reasons alr7ady adverted t?. It may b~ ote~ that the four circumstances pomted out by this Court iustlfymg mterference at the hands of the Tribunal are substantially the same as laid down by the Labour Appellate Tribunal in Buckingha1r11 and Carnatic Company ( 1).\n\nFollowing the decision in Indian Iron & Steel Co. Ltd.('), this Court in The Punjab National Bank Ltd. v. Its Workmen(') held:\n\n\"In cases where an industrial dispute is raised on the ground of dismissal and it is referred to the tribunal for adjudication, the Tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not. Where such a proper enquiry has been held in accordance with the provisions of the relevant standing orders and it does riot appear that the employer was guilty of victimisation or any unfair labour practice, that tribunal is generally reluctant to interfere with the. impugned orders\".\n\nIt was further emphasised that : 'There is another principle which has to be borne in mind when the tribunal deals with an industrial dispute arising from the dismissal of an employee.\n\nWe have already pointed -0ut that before an einployer can dismiss his employee he has to hold a proper enquiry into the alleged misconduct of the employee and that such an enquiry must always begin with the supply of a specific charge-sheet to the employee\".\n\nThe effect of an employer not holding an enquiry has been stated as follows :-\n\n\"But it follows that if no enquiry has in fact been held by the employer, the issue about the merits of the i111pugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to. make. In such a case the point about the exercise of managerial functions does 11ot arise at alt\".\n\nIn Mis. Bharat Sugar Mills Ltd. v. Shri Jai Singh and\n\nohers('.), the question arose regarding the powers of an Industrial Tnbunal to permit an employer to adduce evidence before it\n\n{I) [1952] Labour Appeal Cases 490.\n\n(2) [1958] S.C.R. 667.\n\n(3) [1960) (1) S.C.R. 806.\n\n(4) [1962] (3) S.C.R. 684.\n\njustifying its action after the domestic enquicy was held to be defective. It was contended on behalf of the workmen that when once the domestic enqulry was found to be defective, the tribunal had no option but to dismiss the applicatiop. filed by an employer for approval and that it cannot allow an employer to adduce evi• dence before it justifying its action.\n\nThis Court rejected this contention as follows :\n\n\"When an appliyation for pennission for dismissal is made on the allegation that the workman has been guilty of some misconduct fo[ which the management considers dismissal the app_roppat~ punishment the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquicy by the management itself the Tribunal, it has been settled by a number of decisins of this . Court, has to accept the finding .arrived at in that enquiry ullless it is perverse and should give the permission asked for unless it has reason to believe that. the management is guilty of . victimisation or has been guilty of unfair labour practice or is acting ma/a fide. But the mere fact that no enqulry has been held or that the enqulry has not been properly conducted cannot absolve the Tribunal of its duty to decide whethe.r the case that lhe workman has been guilty of the alleged misconduct has been made out. The proper way Of performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the management is deprived of the benfit of having the findings of the domestic tribunal being accepted as prima facie proof of the alleged misconduct unless the finding is perverse and to prove to the satisfaction o! the Tribunal itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take> evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was 'guilty of the alleged misconduct''.\n\nIn the above decision, this Court quoted with approval the decision of the Labour Appellate Tribunal in Buckingham and\n\nWORKMEN V. FIRESTONE TYRE & RUDDER CO. 601 ( Vaidialingam, !. ) Carnatic Company Ltd. (supra) holding that the materials on which a Tribunal acts may consist of :-\n\n\"( 1) entirely the evidence taken by the management at the enquiry and the proceedings of the enquiry, or\n\n(2) that evidence and in addition thereto further evidence led before the Tribunal, or\n\n(3) evidence placed before the Tribunal for the first time in support of the charges\".\n\nIt was further emphasised tl)at :\n\n\"for a long time now, it has been settlecl law that in the case of an adjudication of a dispute arising out of a dismissal of a workman by the management (as distinct from an application for permission to dismiss under s. 33), evidence can be adduced for the first time before the Industrial Tribunal.\n\nThe important effect of the omission to hold an enquiry is merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out\".\n\nThe observations made by this Court in The Punjab National Ba11k Ltd. (supra) were quoted with approval.\n\nIt was further held that the reasons for which it is proper for a Tribunal to take evidence itself as regards the alleged misconduct when adjudicating upon a dispute arising out of an order of dismissal are equally present in a case where the management makes an application for permission to dismiss an empl'oyee without holding a proper enquiry. Ultimately, this Court upheld the order of the Tribunal allowing the employer to adduce evidence before it in support of its application for permission to dismiss an employee even though the domestic enquiry held by it was held to be highly defective.\n\nThe powers of a Tribunal when a proper enquiry has been held by an employer as well as the procedure to be adopted when no enquiry at all has been held or an enquiry held was found to be defective, again came up for consideration in Ma11ageme11t of Ritz Thatre (P.) Ltd. v. Its Workmen(!). Regarding the powers of a TnbunaJ when there has been a proper and fair enquirv. it was held : ·\n\n\"It is well-settled that if an employer serve the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act\n\n(I) [1963] (3) S.C.R. 461.\n\nSUPREME COURT REPORTS [1973) 3 S.C.lt.\n\nupon the report submitted to him by the Enquiry Officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the emplor~ s a result of such an enquiry can be challenged 1f it IS .shown. that the conclusions reached at the departmental enqwry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an WJfair labour practice. In such an enquiry before the Tribunal, it is not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry.\n\nThis Court has h(!ld that when an proper enquiry has been held, it would be open to the Enquiry Officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion\".\n\nAgain regarding the procedure to be adopted when there has been no enquiry or when there has been a defective enquiry, It was stated :\n\n\"It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity' had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all.\n\nIn other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal.\n\nThis position also is well-settled\". lt was further held that it is only where a tribunal is satisfied that a proper enquiry has not been held or'that the enquiry having been held properly the finding recorded is perverse that the Tribunal derives jurisdiction to deal with the merits of the dispute when permission has to be given to an employer to adduce addi'. tional evidence .\n\n. The right of ari employer to lead evidence before the Tribunal to justify his action was again reiterated in Khardah Co. Ltd. v.\n\nH Their Workmen(') as follows :\n\n(1) '[1964] (3) S.C.R. 506~\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO. 603 (Vaidialingam, l.)\n\n\"It is well settled that if the enquiry is held to be unfair, the employer can lead evidence before the Tribunal and justify his action, but in such a case, the question as to whether the dismissal of the employee is justified or not, would be open before the Tribunal and the Tribunal will consider the merits of the dispute and come to its own conclusion without having any regard for the view taken by the management in dismissing the employee\".\n\nIn Workmen of Motipur Sugar Factory (Private). Limited v.\n\nMotipur Sugar Factory('), the employer had charge-sheeted certain workmen and without conducting any enquiry, as required by the Standing Orders, passed orders discharging the workmen.\n\nBefore the Tribunal, the employer adduced evidence justifying the action taken against the workmen. The workmen were also given an opportunity to adduce evidence in rebuttal.\n\nAfter a consideration of such evidence, the Tribunal held that the workmen were guilty of misconduct alleged against them and that the orders of discharge passed by the employer were fully justified. ; Before this Court it was contended on behalf of the workmen that when no enquiry whatever had been conducted by the employer, as required by the Standing Orders, before passing an Order of dismissal or discharge, the Tribunal had no jurisdiction to hold an enquiry itself by permitting the employer to adduce evidence before it for the first time in rejecting this contention, it was held :\n\n\"It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it.\n\nIn such a case the employer would not have the benefit which he has in cases where domestic inquiries have been held.\n\nThe entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held ........ but also to satisfy itself on the facts adduced before it by the employer whet.her the dismissal or discharge was justified ...... If the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper . . . . . . A defective enquiry to our opinion stands on the same\n\n(1) [1965] (3) S.C.R. 588.\n\nSUPREME COURT 11.EPO!lTS\n\n(1973) 3 S.C.R.\n\nfooting as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper\"\n\nTbe reasons for allowing an employer to lead evidence before the Tribunal justifying his action have been stated thus :\n\n\"If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by iho industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the emplgyee once again.\n\nIn that case, another industriaj diSpute would arise and 1he_ employer would be entitled to rely upon the enquiry\n\nwhich he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry. On the other hand. if in such cases the employer is given an opportunity to justify the impugned dismissal on Lie merits of his case being considered by the tribunal for itself and that clearly would bo to the benefi~ of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the '.ribunal may give an opportunity to the employer to prove his case and in dealing so the tribunal tries the merits itself.\n\nThis view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in tho disposal of industrial disputes. Therefore, We are satisfied that no distinction can be made between cares where the domestic enquiry is invalid and those where no enquiry has in fact been held\".\n\nTho rights of 11-11 employer to avail itself of an opportunity to satisfy the Tribunal by adducing evidence, when an enquiry held by it was found to bo defective or when no enquiry at all has been held, have been stated in State Bank of India v. R. K. Jain &: Ors.('), as follows:-\n\n\"It should be remembered that when an order ot punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in dis-\n\n(1) [1972] (1) S.C.R. 755.\n\nWORKMEN V. FIRES'WNE TYRE & RUBBER CO. 605 ( V aidialingam, J.) charging and tenninating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was re\n\nferred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment.\n\nThere may be cases where an inquiry has been held preceding the order Of tennination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management. but the larger question whether the order of termination, dismissal or the order imposing punishment on the work mon concerned is justified. Under those circum.stances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held and also to attack the order on all grounds available to him in faw and on facts.\n\nSimilarly the management has also a right to defend the action taken by it on the ground that a ptoper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management 10 justify. on facts that the order passed by it was proper. But the ooint to be noted is that the inquiry that is conduct~ by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal holds against the management on that point, the management will fail. On the other hand. if the management relies not only on the validity of the domestic inquiry, but also adduce evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its findin~ is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it pro\"?Ses to tae. before. tlie Tribunal. It may be em-\n\nPas1ed, that 1t 1s the n!!:ht of the management to sustam its ord~ by adducing also indeoendent evidence before the. Tbunal. It is a right given to the manag-ec\n\nmnt and 11 is. for the management to avail itself of the said opportunity\".\n\nM.llThs C0t:? in its recent decision in Delhi Cloth and General 'r\" o. Lt v. Ludh Bdh Sinf!h( 1). after a review of all the ear ter cases. has summansed the orincioles flowing out of those\n\n(I) (1972] (1) LU 180.\n\ndecisions. It has been emphasised that when no enquiry has been held by an employer or when the enquiry held has been found to be defective, the employer has got a right to adduce evidence before the Tribunal justifying its action.\n\nThe stage at which the employer should invoke the jurisdiction of the Tribunal to allow him to adduve evidence before it, has also been discussed in the said decision.\n\nWe have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge.\n\nFrom those decisions, the following principles broadly C emerge:-\n\n(l) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.\n\n(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, an4 principles of natural justice. The enquiry should nQJ: be an empty formality. ( 3) When a proper enquiry has been held by an employer, and the finding pf misconduct is plausible conclusion flowing from the evidence, adduced at the\n\n(4)\n\n(5)\n\nsaid enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body.\n\nThe interference with the decision of the employer will be justified only when the findings arrivd at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or ma/a fide.\n\nEven if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is ooen to the emnloyee to adduce evidence contra.\n\nThe effect of an emplover not holding an enouiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other\n\nWORKMEN v. FIRESTONE TYRE & RUBBER CO. 607\n\n(6)\n\n(7)\n\n(8)\n\n(9)\n\n(10)\n\n(Vaidia!ingam, /.) hand the issue about the merits of the impugned: ordd of dismissal or discharge is at lafge before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all'.\n\nA case of defective enquiry stands on the same footing as no enquiry.\n\nThe Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.\n\nIt has never been recognised that the Tribunal should straightaway, without anything more, direct reinstate-· ment of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.\n\nAn employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse.\n\nThe giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.\n\nOnce the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tril>unal for the fiist time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to. suggest victimisation.\n\nIn a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Managemtnt of Panitole Tea Estate v. The Workmen( 1), within the judicial decision of a Labour Court or Tribunal.\n\nThe above was the l!aw as laid down by this Court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge.\n\n(I) _!1971] (I) S.C.R. 742.\n\nThe question is whether section l lA has made any changes . in the legal position mentioned above and if so, to what extent 1 The Statement of objects and reasons cannot be taken into account for the purpose of interpreting the plain words of the section. But it gives an indication as to what the Legislature wanted . to achieve. At th~ time of introducing section 11 A in !lie Act, the legislature must have been aware of the several principles laid down in the various decisions of this Court referred to above. The object is stated. to be that the Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct reinstatement or award any lesser punishment.\n\nThe Statement of objects and reasons has specifically referred to the limitation on the powers of an Industrial Tribunal, as laid down by this Court in Indian Iron & Steel Co. Ltd.(').\n\nThis will be a convenient stage to consider the contents of section llA To invoke seciion llA, it is necessary that an.in- <lustrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified. If it .comes to\n\nsuch a conclusion, the Tribunal has to set aside the order arid direct reinstatement of the workman on such terms as it thinks fit.\n\nThe Tribunal has aiso power to give any other relief to the workman including the imposing of a lesser punishment having due regard to the circumst!lllces.. The proviso casts a duty on the Tribunal to rely only on the materials on record and prohibits it from\n\n E '1aldng any fresh evidence. Even a mere reading of the section.\n\n1n our opinion, does indicate that a change in the law, as laid down by this Court, has. been effected. According to the workmen the entire law has been completely altered; whereas aC'cordilig\n\nto the employers, a very minor change has been effected givihg pbwer to the Tribunal only to alter the punishment; after having held that the misconduct is proved. That is, according to the employers, the Tribunal has a mere er to alter the punishment after it holds that the misconduct is proved. The workmen, on the other hand, i; Jaim .that the law has been.re-wriften . . We cannot accept the . extreme cont.entions . advanced on be- .half of the. workmen and the employers. We .are aware that the Act is a beneficial piece of legislation enacted in the interest of employees. It is well settled~ that.in construing the provision~ of a welfare lgislation, courts should adopt, what is described as a beneficent rule of construction. If two constructions are reasonably possible to be placed on the section, it follows ihat the con~ 11truction which furthers the policy and object of the Act and\n\nis' more beneficial to the emoloyees, has to be preferred. Another urinciole to be borne in mind is that the Act in question which\n\n(J) {1958) S.C.R, 667.\n\nJtl\n\nWORKMEN v. FIRESTONE TYRE & RUBBER CO. 60 9 ( Vaidia/ingam, J.) intends to improve and safeguard. the _service conditions . of an employee, demands an interpretatton liberal enou~ to achieve the legislative purpose. But we should not also lose sight of anotber\n\ncanon of interpretation that a statute or for the matter of that even a particular section, has to be interpreted according to its plain words and without doing violence tO' gua~ used by the legislature. Another aspect to be borne 10, mmd will be that there has been a long chain of decisions of this Court, referred to exhaustively earlier, iaying down various principles in relation to adjudication of disput~ bY. industrial courts arising out of orders of discharge or dismissal.\n\nTherefore it will have to be found from the words of the section whether it has altered the entire-law, as laid down by the decisions, and, if so, whether there is a clear expression of that intention in the language of the section.\n\nWe will first consider cases where an employer _has held_ a proper and valid domestic enquiry before passing the order, of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd.(1 ) existed.\n\nThe conduct of dispiplioary proceeding and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had !!O power to interfere unless the finding was perverse or the punisl\\- ment was so harsh as to lead to an inference of victimisation or UBfair labour practice. This position, in our view, _has now been. changed by section l lA. The words \"in the cour_se of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified\" clearly indicates that the Tribunal is now clothed with the power to reappraise the evi4ence in the domestic enquiry and satisfy itself whether the said evidence_\n\nrelid on by an employer, estblishl{s the misconduct alleged aga10st a workman. What was originally a plausible conclusion\n\ntat could be drawn by an employer from the evidence, has now\n\ngiven place to a satisfaction being arrived at by the Tribunal that the finding of miscouct is correct. The limitations imposed on\n\nthe powers of the Tnbunar by the decision in Indian Iron & Steel\n\nC~. Ltd.(~). case can no longer be invoked by an employer. The Tnb~ IS now at liberty to consider not only whether the finding\n\no~ rrusconduct recorded by an employer is correct but also to - differ from _the s3; id finding if a proper case is mad~ out. What was once -largely 10 the realm of the satisfaction of the employer has ceased to be so: and qow it is the satisfaction of the Tribunal that finally decides the ll}atter.\n\n~ thre has been no enquiry held by the employer or if theenqmry is held to be defective, it is open to the employer even•\n\n(ll [1958] S.C.R. 667. ·\n\nnow to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. We are not inclined to accept the contention on behalf of the workmen that the nght of the employer to adduce evidence before the Tribunal for the first time recognised by this Court in its various decisions, has been taken away. There is no indication in the section that the said right has been abrogated. If the intention of the legislature was to do away With such a right, which has been recognised over a long period of years, as will be noticed by. the decisions referred to earlier, the section would have been differently worded. Admittedly there are no express words to that effect; and there is no indication that the section has impliedly changed the law in that respect. Therefore, the position is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if he had held no enquiry or the enquiry held by him is found to be defective. Of course, an opportunity will have to be given to the workman to lead evidence contra. The stage at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi and General Mills Co. Ltd(').\n\nNo doubt, this !>rocedure may be time consuming, elaborate and cumbersome.\n\nAs pointed out by this Court in the decision just referred to above, it is open to the Tribunal to deal with the validity of the domestic enquiry, if one has been held as a preliminary issue. If its finding on the subject is in favour of the management, then there will be no occasion for additional evidence being cited by the management. But if the finding on this issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence justifying his action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been hel'd or if the enquiry is held to be defective, has been given judicial recognition over a long period of years.\n\nAll parties are agreed that even after section 1 !A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer.\n\nHaving held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid down by this Court that under such circumstances the issue about the merits of the imnugned order of dismissal or discharge is at lare before the Tribunal and that it has to decide for itself whether the misconduct alleired is proved, continues to have full effect.\n\n{I) [1972] I.L.L.J. 180.\n\nWORKMEN V, FIRESTONE TYRE & RUBBER CO. 61 l (Vaidialingam, J.)\n\nsuch a case, as laid down by this Court, the exercise of managerial functions does not arise at all.\n\nTherefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under section 11 A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. .Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.\n\nWe are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under section llA by the Tribunal is reached only when it has to consider the punishment after having, accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and foum' proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself, Ultimately it may hold that the misconduct itself is not\" proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to\n\nus, section HA now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points, Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies' on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to jts own conclusioo about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by section\n\n11~ '\n\nAnother change that has been effected by section 11 A is the power conferred on a Tribunal to alter 1he punishment imoosed by an emP!oyer. If the.Tribunal comes to the conclusion that the rnisc; onduct is estalished, either bv the domestic enauiry accepted bv 1t or by the evtdence adduced before it for the first time the !ribunal oriinallv had no oower to interfere with the punishent 1mnosed bv the manaement. Once the mi•conduct is Proved, the Tnbunal had to sustain the order of punishment unless it was\n\nharsh indicating victimisation.\n\nUnder section 1 lA, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the sai(j misconduct is not justified. In other words, the Tribunal m~ hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman any lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by section 11 A.\n\nMr. Dc:shmukh rather strenuously urged that in all its previous decisions, this Court had not considered . a breach-or an illegality, as he calls it-{; ommitted by an employer in not h1>lding a domestic enquiry. The learned counsel urged that this Court has consistently held in several decisions that there is an obligation on the part of an employer to conduct a proper domestic enquiry in accordance with the Standing Orders before passing an order of discharge or dismissal. Hence an order passed without such an enquiry is, on !he face of it, illegal. The effect of such an illegal order deprives the employer of an oppo!iunity being given to him to adduce evidence for the first time before the Tribunal to justify his action.\n\nThese aspects, according to the learned counsel, have not been considered by this Court when it recognised an opportunity to be given to an employer to adduce evidence before the Tribunal.\n\nThe above aspect was stressed before us by Mr. Deshmukll ia support of the contention that section 11 A has taken not of. such an illegality committed by employers arid has now made it obligatory to conduct a domestic enquiry. According to him, if no such proper and valid domestic enquiry precedes the order imposing punishment, the Tribunal now has no alternative but to erder roinstamment on that ground alone ..\n\nWe have already indicated our views regarding the scope <K section 1 lA and held that the riglit Of an employer to adduce 8uch evidence before the Tribunal has not been taken away.\n\nMr.\n\nDeshmukh referred us to section 23 of the Act prohibiting a workman from going on strike in the circumstances mentioned therein and further pointed out that if a strike is illegal, i.t cannot be 1aWfW. Similarly, an illegal act of an employer in not holding a domestic enquiry cannot be made legal. ·\n\nIii our opinion, the analogy placed before us by the coumel cannot stand scrutiny. It is no doubt true that Standing Orders, which have been certified . under the Industrial Employment (Standing Orders) Act 1946, become part of the statutory terms and conditions of service between the employer and his employee\n\nWORKMEN V, FIRESTONE TYRE & RUBBER CO. 613 (Vaidialingam, /.) and tht they govern the relationship between the parties. But there is no provision either in this statute or in the Act which states that an order of dismissal or discharge is illegal if it is not preceded by a proper and valid domestic enquiry. No doubt it has been emphasised in the various decisions of this Court that an employer is expected to hold a proper enquiry before dismissing or discharging a workman. If that requirement is satisfied, an employer will by and large escape the attack that he has acted arbitrarily or ma/a fide or by way of victimisation. If he has held a proper enquiry, normally his bona fides will be established.\n\nBut it is not correct to say that this Court, when it laid down that an employer has a right to adduce evidence for the first time before the Tribunal, was not aware of a breach committed by an employer of the provisions of the Standing Orders. A similar contention, though in a different form, advanced on behalf of the workmen was rejected by this Court in Workmen of Motipur Sugar Factory (Private) Limited( 1 ). It was specifically contended before this Court by the workmen therein that when an employer had held no enquiry, as required by the Standing Orders, it was not oren to him to adduce evidence before the Tribunal for the first time and justify the order of discharge. This contention was rejected by this Co_urt and it was held that if the enquiry _was defective or no enquiry had 1x:en held, as required by the Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify, on evidence as well that its order of dismissal or discharge was proper. Therefore, this contention cannot be accepted. We may also state that the industrial Employment (Standing Orders) Act 1946 applies only to those industrial establishments which are covered by section 1 (3). But the field of operation of the Act is much wider and it applies to employers who may have no standing orders at all. If the contention of Mr. Des'1mukh regarding Standing Orders is accepted, then the Act will have to be applied in a different manner to employers. who have no Standing Orders. and employers, who are obliged to have Standing Orders. That is certainly not the scheme of the Act.\n\nWe will now pass on to consider the proviso to Section 11 A.\n\nMr. Deshmukh relied on the terms of the proviso in support of his contention that it is now obligatory to hold a proper domestic enquiry and the Tribunal can only take into account the materials placed at that enquiry. The counsel emphasised that the proviso places an obligation on the Tribunal 'to rely only on the materials on record' and it also prohibits the Tribunal from taking 'any fresh evidence in relation to the matter'. Accordi!lg to him. the exDression 'materials on record' refers to the materials available ltlii965J-J s.c.R:58s.\n\n7-L761Sup.C.l./73\n\nbefore the management at the domestic enquiry and the expression 'fresh evidence' refers to the eviaence that was being adduced by an employer for the first time before the Tribunal. From the wording of the Proviso, he wants us to infer that the right of an employer to adduce evidence for the first time has been taken away, as the Tribunal is obliged to confine its scrutiny only to the materials available at the domestic enquiry.\n\nWe are not incline9 to accept the above contention of Mr.\n\nDeshmukh.\n\nThe Proviso specifies matters which the Tribunal shall take into account as also m1;1tters which it shall not.\n\nThe expression 'materials on record, occurring in the Proviso, in our opinion, cannot be confined only to tbe materials which v, ere available at the domestic enquiry. On the other hand, the 'mate- . trials on record' in the Proviso must be held to refer to materials on record before the Tribunal. They take in-\n\n( 1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or\n\n( 2) the above evidence and in addition, any further evidence led before the Tribunal, or\n\n( 3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workman contra.\n\nThe above items by and large should be considei:ed to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of those materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge.\n\nIt also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment from the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective. an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The exnression 'fresh evidence' has to be read in the context in which it annears, namely, as distinguished from the exnression 'materials on record'.\n\nIf so read, the Proviso does not prevent any difficulty at all.\n\n• •\n\n' ..\n\nWORKMEN V. FIRESTONE TYRE.& RUBBER CO. 615 (Vaidialingam, J.) The legislature in section I IA has made a departure in certain respects in the law as laid down by this Court, for the first tiine, p<>wer has been given to a Tribunal tci satisfy itself whether :misoonduct is proved. 'Illis is particularly so, as already point~ ut. by us, regarding even findings arrived at by an employer, Ill :. a_n enquiry properly held. The Tribunal has also been giyen power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or C . other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record'. before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above. cannot call for further or fresh evidence, as an; appellate authority may normally do under a particular sta!Ute; . ..y_hen considering . the\n\ncorrectness or otherwise of an order passed by a subordinate body.\n\nThe 'matter' in the Proviso refers t_o the order of discharge or dismissal that is being considered by, the Tribunal.\n\nIt is to be noted that_ an applicatiC!fl made, by an employer under section 33(1)· for permission or 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act: It has been held by tliis Court that even iri cases where nci enquiry IJas been held by an employer before passing an order of dismissal cir discharge, it is -open to him to adduce evidence for the first time before the Tribunal. Though the. Tribunal is\"_ exercising only a very limited jurisdiction under this section, nevertheless, it would have applied its mind before giving permission .or approval. Section 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being 'adjudicated. the employer will rely upon the proceedings tha:t were already held before a Tribunal under section 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh that if no. enquiry is held. the order of dismissal will have to be set aside, if\n\naceented. will lead to very incongruous results. The Tribunal would have allowed .ari emlover to adduce evidence before it in proceedings under section 33 for the first time. even though no\n\ndomestic: enauirv\" had been held. If if is held .that another Tri-. bunal. which adjudicates the main diute. has to ignore those proceedings and straightaway order reinstatement on the ground\n\nthat no domestic enquiry had been held by an employer, it will lead to very start1ing results. Therefore, an attempt must be made to construe section l lA in a reasonable manner. This is :mother reason for holding that the right to adduce eviclCnce for the first time recognised in an employer, has not been disturbed by section llA..\n\nThere may be other instances where an employer with limited number of workman may himself be a witness to a misconduct committed by a W<1!'kman. He will be disabled from conducting an enquiry against the workman because he cannot both be an enquiry officer and also a witness in the proceedings. Any enquiry held by him will not be in keeping with the principles of natural justice. But he will certainly be entitled to take disciplinary action for which purpose he can serve a charge-sheet and, after calling for explanation, impose the necessary punishment without holding any enquiry. This will be a case where no enquiry at all has been held by an employer. But the employer will have sufficient material available with him which could be produced before any Tribunal to satisfy it about the justification for the action taken.\n\nQuite naturally, the employer will place before the Tribunal, for the first time, in the adjudication proceedings material to support his action. Tlµlt material will have to be considered by the Tribunal. But if the rontention of Mr. Deshmukh is accepted, then the mere fact t]J.at no enquiry has been held, will be .sufficient to order reinstatement.\n\nSuch reinstatement, under the circumstances mentioned above, will not be doing justice either to the employer or to the workman and will not be conducive to preserving industrial peace.\n\nWe have indicated the changes effected in the law by section 1 lA. We should not be understood as laying down that there is no obligation whatsoever on the part of an employer to hold an enquiry before passing an order of discharge or dismissal. This Court has consistently been holding that an employer is expected\n\nto hold a proper enquiry according to the Standing Orders and principles of natural justice. It has aISo been emphasised that such. au. enquiry should not be aii empty formality. f a proper enquiry IS conducted _by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it haS now power to differ from the conclusions arrived at by the management, will have to give very cogent reasons for n.:>t accepting the view of the employer. Further by holding a proper enquiry, the employer will also escape, the charge of having acted arbitrarily H or ma/a fide. It cannot be over-emphasised that conducting of a proper and valid enquiry bv an employer will conduce to harmonious and healthy relationship between him and the workman and\n\n={ B\n\nWORKMEN J), FIRESTONE TYRE & RUBBElt CO. .17 ( V aidialingam, J.) it will serve the cause of industrial peace. Further it will also en able an employer to Fuade the Tribunal to accept the enquiry as proper and the finding also as correct.\n\nHaving dealt with the proper interpretation to be placed on section l lA, we will now proceed to conside~ the second point regarding the applicability of the section to industrial disputes which had already been referred for adjudication and were pending with the Tnbunals on 15-12-1971 We have earlier referred to the fact that the Amendment Act received the assent of the President on 8th December, 1971. But the Amendment Act did not come into force immediately. It came into force only with effect from Deceinber 15, 1971, as per the Notification issued by the Central Government on 14-12-1971 under section l, subsection 2.\n\nMiss Indira Jai Singh, learned counsel for the appellantworkmen, in Civil Appeal No. 1461 of 1972, advanced the main arguments in this regard. Mr. Deshmukh appearing for the workman in the other Appeals, adopted her arguments. According to the learned counsel, section llA applies not only to references, which are made on oi: after 15-12-f 971, but also to all references already made and which were pending adjudication on that date.\n\nIt is pointed out that sect_io'n 11 A has been incorporated in .\n\nChapter IV of the Act dealing with procedure, powering_ and duties of authorities. According to lhem, section 11 A deals with. matters of procedure. Applying the well known canon of interpretation, procedural laws apply to pending proceedings also. No right, much less any vested right, of the employers has been taken away or affected by section l lA. Considerable stress has been laid on the use of the expressions 'hl!S been referred' occurring in section 11A, as conclusively indicating the applicability of the section even to disputes already referred. It was stressed that even assuming that an employer has a right to adduce evidence for the first time before the Tribunal, that right enures to him only after the Tribunal had adjudicated upon the validity of the domestic enquiry. It cannot be characterised even as a right, much less a vested right; because it is contingent or dependent upon the Tribunal's adjudication on the domestic enqniry. The Tribunal, when it adjudicates a dispute on or after 15-12-1971, has to exercise the powers conferred on it by section 1 lA, even though the dispute may have been referred prior to that date.\n\nHence it is clear that the section apP!ies even to all proceedings pending adjudication on 15-12-1971.\n\nMr. Damania, learned counsel for the employers, contended that retrospective operation should not be given unless it appears very clearly by the terms of the section or arise by necessary and\n\ndistinct intt1rpretation. The counsel pointed out thjit the employers would have moulded their behaviour according to the principles\n\nlaid down by a series of decisions and if the rights recognised in 2.n employer are to be taken away, that can be done so only by a clear expression to that effect; or such intention to take away or interfere with those rights must appear by necessary intend ment. The words of the section cl'early show that it applies only to disputes in respect of which a reference is made after the section has come into force 1.e. 15-12-1971. The expressions 'has been referred' in the section only signify that on the happening of a particular event, namely, a reference made in future, the powers given to the Tribunal, whatever they may be, can be exercised. !'fr. M. C. Setalvad and Mr. Tarkunde, learned counsel, appearmg for other employers, adopted the contentions of Mr. Darnania.\n\nA faint argument was also advanced that for section 11 A to apply, even the order of discharge or dismissal should be one\n\n-- passed on or after 15-12-1971. But this was not pursued, quite rightly in our opinion, in view of the wording of the section. But the main contention on the side of the employers is that the section D applies .only to disputes which are referred for adjudication on or after 15-12-1971.\n\nThe learned counsel on both sides have referred us to several decisions where a statute or a section thereof, bas been held to be either retrospective or not. They have al.so referred 'us to certam passages in text books on interpretation thereof. It is needless to state that a decision has to be given one way or other having regard to the scheme of the statute and the language used therein.\n\nHence we do not propose to refer to those decisions, nor to the passages in the text books, as the principle is well established that a retrospective operation -is not to be given to a statute so as to impair an existing right. This is the general rule. But the legis lature is competent to pass a statute so as to have retrospective operation, either by clearly expressing such intention or by necessary and distinct intenchnent. The principles regarding tlie retrospectivity or otherwise of a seetion or a statute have been laid down by this Court. in Garikapatti Ve\"aya v. N. Subbiah Choudhury(') and Kesshavlal lethalal Shah v. Mohanlal Bhag- G wandas & Anr.(').\n\nMiss Indira J ai Sing4, learned counsel, placed considerable reliance on the use of the expressions 'has been referred' in section 1 lA as indicating that the section .!IPPlies even to all references made before 15-12-1971. In our opinion, those words cannot be isolated from the context. The said expressions may have different connotations when they are used in atfferent context. A\n\n(I) [1957] S.C.R. 488.\n\n(2) [1968] (3) S.C.R. 623;\n\nWORKMEN V, FIRESTONE TYRE & RUBBER CO. 619 (Vaidialingam, !.) reference may he made to section 7 (3) and section 7 A(3) of the Act, laying down qualifications for being appointed as a presiding officer of a LaboUJ: Court or a Tribunal respectively. Subsection 3 of section 7 enumerates the qualifications which a person should possess for appointment as Presiding Officer of a Labour Court. Section 7(3)(a) & (e) is as follows:--\n\n\"A person shall not be quaiified for appointment as the presiding officer of a Labour Court, unless-\n\n(a) he is, or has been, a Judge of a High Sourt; or x x x x ( e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.\n\nThe words 'has been a judge of a High Court' denote a past event, on the date cif his appointment, he must have been a judge of a High Court. Same is the position under clause ( e) regarding the office mentioned therein. A similar interpretation will have to be placed on the expressions 'has been' occurring in sum-section 3 of section 7 A regarding the qualifications to be possessed by a person for appointment as presiding officer of a Tribun_al. The words 'has been' occurring in these sub-sections, immediately after the word 'is' or even separately clearly shows that they refer to a past\n\nevent.\n\nThe words 'has been referred' in section llA are no doubt capable of being interpreted as making the section applicable to references made even prior to 15-12-1971. But is the section so expressed as to plainly make it applicable to such references ? In our opinion, there is no such indication in the section. In the first place, as we have lj!ready pointed out, the section itself has been brought in!o effect only some time after the Act had been passed. The Proviso to section 1 lA which is as much part of the section, refers to \"in any proceeding under this section\". Those words are very significant. There cannot be a \"proceeding unde1\n\nthis section\", before the section itself ha8. come into force.\n\nA proceeding under that.section can only be on or after 15-12-1971.\n\nThat also gives an indication that section I IA applies only to disputes which are referred for adjudication after the section has come into force.\n\nReliance has been placed by the learned counsel for the workmen on the decision of this Court in The State of Maharashtra v.\n\nVishnu Ramachandra(1 ): Section 57 of the Bombay Police Act\n\ndealt with the removal of persons convicted of certain offences.\n\n(l) (19 611 (2) S.C.R. 26.\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll.\n\nThe opening words of the section were \"if a person has. been convicted ........ \"; then followed the various types of offences Qf which that person y )lave been. com:ict1l4. '[he Deputy Commissioner of Police, Bombay, acting under section 57 ( 1) passed\n\nan order externing the respon_dent from the Jimfts of Greater Bombay. It was contended before the BoJ!lbay High Court that section 57 was prospective al)d could. !].Ot be made applicable unless the conviction on which the action of extemment was based, took place after the coming in!Q force of that Act. The High Court upheld this contention and acquitted the accused. The High Coun had held that as the legislature had used the present participle 'has been'. and not the past participle in the opening part of the section, it should be understood that the section was inteQlied to be used only where a person was convicted of the offences referred to in section 57, subsequent to the coming into force of the Act. This Cou_rt differed 'from the interpretation placed by the lligh Court on section 57 of the Bombay Police Act and held that the secton enabled the authorities to take note of the convictions of the accused prior to the Act. It was observed :\n\n\"An offender. who has been punished may be restrained in his acts and conduct by some legislation, which takes note of bis antacedents; J:>ut so long as the action taken against him is after the Act comes into force, the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but. prospectively. . . . . . . . The verb 'has heen' is in the present perfect tense, and may n:iean either 'shall have been' or 'shall be'. Looking, hoWever, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended ... , .... \" It is clear from the above observations that the expression 'has been' was interpreted having regard to the scber!J.es of the enactment and it was not construed in isolation. That decision makes it clear that the question whet®r those expressions relate to past or future events, have to be gathered from the context in which they appear as well as the scheme of the particular legislation. ·\n\nThe decision of the Court of Appeal in Barber v.\n\nPigdm(1} is also not of any material assistance to the workmen. Ha'lling due regard to the scheme of the \"Law Reform (Mlirried Women and Tortfeasors) Act, 1935\", it was held therein t1111t said statute did away with a host of legal fictions, which in origin wm inextricably mixed up with the old procedural law. It was.further held that the canon against retrospective interpretlition dOes not\n\n(I) (1973] I All B.R. US.\n\nWOUMJ!N V,. PllJ!STONE TYRE & RUBBER CO. 621 (Vaidialingam, J.) apply to a statute dealing with the adjective law i.e. procedure . . Similarly the decision of the Calcutta High Court in Birla Brothers; Ltd. v. Modak( 1) [whiCh has been approved in Jahiruddin v. K. D. Rathi, Factory Manager.\n\nT.he Model Mills Nagpur Ltd.(')] and the decision of this Court in Shah Bhojraj Kuverji Oil Mills And Ginning Factory v. Subbash Chandra Yograj Sinha(') do not advance the case of the workmen. The decision in Keshavla/ Jetha/a[ Shah v. Mohan/a/ Bhagwandas & Anr. (supra) relied on by the employers deals with a different problem.\n\nIt must be stated at this stage that procedural law has always been held to operate even retrospectively, as no party has a vested right in procedure. In our opinion, the principles stated in In re Atlumhney v. Ex-parte Wilson(') are more apposite to the case on hand.\n\nThe question arose regarding the construction to be placed upon section 23 of the Bankruptcy Act 1890. 'The said section was as follows :\n\n\"Where a debt has been proved upon a debtor's estate under the principal Act, and such debt includes interest, or any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purposes of dividend, be calculated at a rate not exceeding five per centum per annum, without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to .which he may be entitled after all the debts proved in the estate have been paid in fulf'.\n\nThe point that arose for consideration was whether the above section operates so as to govern the distribution of dividend under a contract made under a scheme which had taken effect before the Act was passed or came into operation. In holding that the section was not retrospective, it was observed : ''Then is the section so expressed as to be plainly retrospective ? No doubt the words 'where a debt has been proved under the principal Act' are capable ot . such a meaning. But. this fortn of words is often used\n\nto refer, not to a past time which preceded the enactment, but. to a time which is made past by anticipation a time which will have become a past time only when the event occurs on which the statute is to operate. In fOi'lller times draftsmen would have used the words 'where a debt shall have been proved' but in modern Acts the past tense is frequently used where no retrospective operation can be intended\".\n\n(I) I.L.R. 19-48 (ll) Cal. 209.\n\n(2) 11966) (2) S.C.R. 660.\n\n(3) [1962) (l) S.C.R: 159.\n\n(4) [1898j tQ.B. 547.\n\n8UPREME COURT REPORTS [1973] 3 s.c.R.\n\nWe have already eii:pressed our view regarding te interpretation of section llA. We have held that the previous law, accordinz to the decisions of this Court, in cases v.:here a proper domestic enquiry had been held, was that the Tnbunal had no jurisdiction to interfere with the findin!l. of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by an employer both .in ca~ where the conduct is established in a proper domestic enqwry as also m cases where the Tribunal fiD.ds such misconduct proved on the basis of evidence adduced before it These limitations on the powers of the Tribunals were recognised by this Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. at means that the law, as laid down by this Court over a period of years,_ had recognised certain managerial rights in an employer. We have pointed out that this position has now been changed by section llA. The section has the effect of altering the law by abridging the rights of the em ployer inasmuch as it gives power to the Tribunal for the .first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. Hence in order to make. the secti()n applicable even to disputes, which had been referred prior to the coming into force of the section, there should be such a clear, express and manifest indication in the section.\n\nThere is no such express indication. An inference that the section applies to proceedings, which are already pendinz, can also be gathered by necessary. intendment. In the case on hand, no such inference can be drawn as the indications are to the contrary. We have already referred to th~ proviSo to section 11 A which states 'in any proceeding un.der this section'. A proceeding\"under the section can only be after the section has come into force. Further the section itself was brought into force some time after the Amendment Act was passed. These circumstances as well as the scheme of the section and particularly the wording of the Proviso ' indicate that section 1 lA does not apply to disputes which had been referred prior to 15-12-1971. The section applies only to disputes which are referred for adjudication on or after 15-12-·\n\n1971. To conclude, in. our opinion, seetion llA hasno application to disputes referred prior to 15-12-1971. Such disputes have to be dealt. with according to the decisions of this Court already referred to.\n\nJn Civil Appeal No. 1461 of 1972, the Industrial Tribunal had considered only the question regarding the applicability of the section to disputes which had been referred before the section came into force. The Tribunal has held that the section does not\n\nWORKMEN V. FIRESTONE TYRE & RUBBER CO. 623 (Vaidialingam, J.) apply to such disputes. This view is in accordance with our decision and as such correct. This appeal is hence dismissed.\n\nIn the three other orders, which are the subject of considera-- tion in Civil Appeals Nos. 1995 of 1972, 1996 of 1972 and 2386 of 1972, the Labour Court, Bol); lbay has held that section 11A applies even to disputes which had been referred prior to 15-12-\n\n1971. This view, accoJding to our judgment, is erroneous. The Labour Court has also expressed some views on the construction to be placed on section llA. Part of the views expressed therein is correct; but the rest are wrong. To the extent that the decisionof the Labour Coun in the three orders are contrary to our decision on both the points, they are set aside ana the appeals allowed to that extent. The Tribunal and the Labour Courts concerned\n\nin all these appeals, will proceed with the adjudication of the disputes in accordance with the views expressed in this judgment.\n\nThere will be no order as to costs 'in these appeals.\n\nG. C.\n\nC.A. No. 1461/72 dismissed.\n\nC.As. Nos. 1995-96 & 2386/72 allowed in part.\n\n.·.", "total_entities": 171, "entities": [{"text": "p\n\nWORKMEN OF MESSRS FIRESTONE TYRE &\n\nRUBBER COMPANY OF INDIA (P.) LTD", "label": "PETITIONER", "start_char": 2, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "WORKMEN OF MESSRS FIRESTONE TYRE & RUBBER COMPANY OF INDIA (P.) LTD", "offset_not_found": false}}, {"text": "iANAGEMENT & OTHERS", "label": "RESPONDENT", "start_char": 80, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "MANAGEMENT & OTHERS", "offset_not_found": false}}, {"text": "l. D. DUA", "label": "JUDGE", "start_char": 142, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "JndustriGi Disputes Act 1947", "label": "STATUTE", "start_char": 183, "end_char": 211, "source": "regex", "metadata": {}}, {"text": "Workmen of Motipur Sugar Factories (Private) Limited", "label": "ORG", "start_char": 3862, "end_char": 3914, "source": "ner", "metadata": {"in_sentence": "pll C-H; 612 AB] It was specifically contended before the Court in Workmen of Motipur Sugar Factories (Private) Limited, that when an employer had held no enquiry as required by the Standing Orders, it was not open to him to\n\naddce evidence before the Tribunal for the first time and justify the order of discharge."}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 4527, "end_char": 4550, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 4855, "end_char": 4878, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "15-12'-1971.", "label": "DATE", "start_char": 6362, "end_char": 6374, "source": "ner", "metadata": {"in_sentence": "A proceeding under that section can only be on or after 15-12'-1971."}}, {"text": "15-12-1971", "label": "DATE", "start_char": 6775, "end_char": 6785, "source": "ner", "metadata": {"in_sentence": "There arc no express words in s. llA which would make it applicable even to disputes referred before it came into force nor could such an inference be gathered by nec .. sary intendment,, The section therefore does not apply to proceedings before 15-12-1971. ["}}, {"text": "Buckingham and Carnatic Company Ltd.", "label": "PETITIONER", "start_char": 6948, "end_char": 6984, "source": "ner", "metadata": {"in_sentence": ".619 E-0; 622 D-01\n\nThe following cases were referred to in the judgment :\n\n(1) Indian Iron & Steel Co. Ltd .. anli Another v. Their Workmen [1958] S.C.R. 667, Buckingham and Carnatic Company Ltd. by its Manag."}}, {"text": "[1960] 1 S.C.R. 806", "label": "CASE_CITATION", "start_char": 7422, "end_char": 7441, "source": "regex", "metadata": {}}, {"text": "[1962] 3 S.C.R. 684", "label": "CASE_CITATION", "start_char": 7503, "end_char": 7522, "source": "regex", "metadata": {}}, {"text": "[1963] 3 S.C.R. 461", "label": "CASE_CITATION", "start_char": 7576, "end_char": 7595, "source": "regex", "metadata": {}}, {"text": "[1966] 3 S.C.R. 506", "label": "CASE_CITATION", "start_char": 7632, "end_char": 7651, "source": "regex", "metadata": {}}, {"text": "[1965] 3 S.C.R. 588", "label": "CASE_CITATION", "start_char": 7730, "end_char": 7749, "source": "regex", "metadata": {}}, {"text": "K. D. Sethi", "label": "JUDGE", "start_char": 7895, "end_char": 7906, "source": "ner", "metadata": {"in_sentence": "K. D. Sethi, Factory Manager, The Model Mills , Nagpur Ltd., [1966] 2\n\nCIVIL APPELLAT.E JURISDICTION : Civil Appeal No."}}, {"text": "CIVIL APPELLAT.E JURISDICTION", "label": "PETITIONER", "start_char": 7967, "end_char": 7996, "source": "ner", "metadata": {"in_sentence": "K. D. Sethi, Factory Manager, The Model Mills , Nagpur Ltd., [1966] 2\n\nCIVIL APPELLAT.E JURISDICTION : Civil Appeal No.", "canonical_name": "CIVIL APPELLAT.E JURISDICTION"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 8173, "end_char": 8201, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.", "canonical_name": "CIVIL APPELLAT.E JURISDICTION"}}, {"text": "IDA", "label": "STATUTE", "start_char": 8372, "end_char": 8375, "source": "regex", "metadata": {}}, {"text": "IDA", "label": "STATUTE", "start_char": 8577, "end_char": 8580, "source": "regex", "metadata": {}}, {"text": "Indira Jai Singh", "label": "LAWYER", "start_char": 8602, "end_char": 8618, "source": "ner", "metadata": {"in_sentence": "Indira Jai Singh, A. D. Shastri and Umffla Simr, for the appellant (in C.A. No.", "canonical_name": "Indira Jai Singh"}}, {"text": "A. D. Shastri", "label": "LAWYER", "start_char": 8620, "end_char": 8633, "source": "ner", "metadata": {"in_sentence": "Indira Jai Singh, A. D. Shastri and Umffla Simr, for the appellant (in C.A. No."}}, {"text": "Umffla Simr", "label": "LAWYER", "start_char": 8638, "end_char": 8649, "source": "ner", "metadata": {"in_sentence": "Indira Jai Singh, A. D. Shastri and Umffla Simr, for the appellant (in C.A. No."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 8690, "end_char": 8704, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, V. M. Tarkunde and Rameshwar Nath, for the respondent No.", "canonical_name": "M. C. Setalvad"}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 8725, "end_char": 8739, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, V. M. Tarkunde and Rameshwar Nath, for the respondent No."}}, {"text": ".G F. D. Damania", "label": "LAWYER", "start_char": 8788, "end_char": 8804, "source": "ner", "metadata": {"in_sentence": ".G F. D. Damania, D.R. Nath, Bhuvanesh Kumari, 0."}}, {"text": "D.R. Nath", "label": "LAWYER", "start_char": 8806, "end_char": 8815, "source": "ner", "metadata": {"in_sentence": ".G F. D. Damania, D.R. Nath, Bhuvanesh Kumari, 0."}}, {"text": "Bhuvanesh Kumari", "label": "LAWYER", "start_char": 8817, "end_char": 8833, "source": "ner", "metadata": {"in_sentence": ".G F. D. Damania, D.R. Nath, Bhuvanesh Kumari, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 8835, "end_char": 8847, "source": "ner", "metadata": {"in_sentence": ".G F. D. Damania, D.R. Nath, Bhuvanesh Kumari, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 8849, "end_char": 8864, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Ravinder Narain, J. B. Dadachanji, for the Interveners (Mahindra & Mahindra) ."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 8866, "end_char": 8882, "source": "ner", "metadata": {"in_sentence": "C. Mathur, Ravinder Narain, J. B. Dadachanji, for the Interveners (Mahindra & Mahindra) ."}}, {"text": "Madan Mohan", "label": "LAWYER", "start_char": 8929, "end_char": 8940, "source": "ner", "metadata": {"in_sentence": "Madan Mohan, for the intervener (Kulwant Singh)."}}, {"text": "Kulwant Singh", "label": "LAWYER", "start_char": 8962, "end_char": 8975, "source": "ner", "metadata": {"in_sentence": "Madan Mohan, for the intervener (Kulwant Singh)."}}, {"text": "M. C. Stalvad", "label": "LAWYER", "start_char": 8979, "end_char": 8992, "source": "ner", "metadata": {"in_sentence": "M. C. Stalvad, F. D. Damania M. A. Gagrat, S. M. Patel and 'H I. N. Shroff for the appellant. (", "canonical_name": "M. C. Setalvad"}}, {"text": "F. D. Damania M. A. Gagrat", "label": "LAWYER", "start_char": 8994, "end_char": 9020, "source": "ner", "metadata": {"in_sentence": "M. C. Stalvad, F. D. Damania M. A. Gagrat, S. M. Patel and 'H I. N. Shroff for the appellant. ("}}, {"text": "S. M. Patel", "label": "LAWYER", "start_char": 9022, "end_char": 9033, "source": "ner", "metadata": {"in_sentence": "M. C. Stalvad, F. D. Damania M. A. Gagrat, S. M. Patel and 'H I. N. Shroff for the appellant. ("}}, {"text": "H I. N. Shroff", "label": "LAWYER", "start_char": 9039, "end_char": 9053, "source": "ner", "metadata": {"in_sentence": "M. C. Stalvad, F. D. Damania M. A. Gagrat, S. M. Patel and 'H I. N. Shroff for the appellant. ("}}, {"text": "M. A. Gagrat", "label": "LAWYER", "start_char": 9094, "end_char": 9106, "source": "ner", "metadata": {"in_sentence": "M. A. Gagrat,_ S. M. Patel and I. N. Shroff, for the appellant (in C.A. No."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 9125, "end_char": 9137, "source": "ner", "metadata": {"in_sentence": "M. A. Gagrat,_ S. M. Patel and I. N. Shroff, for the appellant (in C.A. No."}}, {"text": "S. J. Deshmukh", "label": "LAWYER", "start_char": 9178, "end_char": 9192, "source": "ner", "metadata": {"in_sentence": "S. J. Deshmukh and Indira Jai Singh, for the respondents. ("}}, {"text": "M. Vasudeo", "label": "LAWYER", "start_char": 9301, "end_char": 9311, "source": "ner", "metadata": {"in_sentence": "2386) and for the Intervener (M. Vasudeo) (in C.A. No."}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 9378, "end_char": 9390, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In these appeals, by special leave, two a. common questions arise for consideration :-\n\n(1) proper interpretation of section llA of the Industrial Disputes Act; and\n\n(2) whether the above section applies to industrial disputes which have already been referred to for adjudication and were 'pending as on 15-12-1971.", "canonical_name": "V aidialingam"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 9531, "end_char": 9554, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section I IA was incorporated in the Industrial Disputes Act 1947", "label": "STATUTE", "start_char": 9712, "end_char": 9777, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 9818, "end_char": 9827, "source": "regex", "metadata": {"linked_statute_text": "Section I IA was incorporated in the Industrial Disputes Act 1947", "statute": "Section I IA was incorporated in the Industrial Disputes Act 1947"}}, {"text": "Parliament", "label": "ORG", "start_char": 9952, "end_char": 9962, "source": "ner", "metadata": {"in_sentence": "The Amendment Act passed by Parliament, received the assent of the President on December 8, 1971."}}, {"text": "section 2", "label": "PROVISION", "start_char": 10027, "end_char": 10036, "source": "regex", "metadata": {"linked_statute_text": "Section I IA was incorporated in the Industrial Disputes Act 1947", "statute": "Section I IA was incorporated in the Industrial Disputes Act 1947"}}, {"text": "15, 1971", "label": "DATE", "start_char": 10428, "end_char": 10436, "source": "ner", "metadata": {"in_sentence": "Accordingly, the Amendment Act came into force with effect from December 15, 1971."}}, {"text": "section 3", "label": "PROVISION", "start_char": 10515, "end_char": 10524, "source": "regex", "metadata": {"linked_statute_text": "Section I IA was incorporated in the Industrial Disputes Act 1947", "statute": "Section I IA was incorporated in the Industrial Disputes Act 1947"}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 11503, "end_char": 11515, "source": "ner", "metadata": {"in_sentence": "5 9 t (Vaidialingam, J.) Provided that in any proceeding under this section the Labour Court, Tribunal or National Tn'bunal, as the case may be, shall rely only on the materials on record and shall not take any fresti evidence in relation to the matter\".", "canonical_name": "V aidialingam"}}, {"text": "section 11", "label": "PROVISION", "start_char": 11762, "end_char": 11772, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 11947, "end_char": 11960, "source": "ner", "metadata": {"in_sentence": "Regarding section 11 A; in the Statement of objects and reasons it is stated as follows :-\n\n\"In Indian Iron and Steel Company Limited and another v. their workmen (AIR 1958 S.C. 130 at 138), the Supreme Court, while considering the Tribunal's power to interfere with the managemenfs decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc."}}, {"text": "Osed to be inserted in the Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 13986, "end_char": 14042, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 1", "label": "PROVISION", "start_char": 14183, "end_char": 14192, "source": "regex", "metadata": {"linked_statute_text": "Osed to be inserted in the Industrial Disputes Act, 1947", "statute": "Osed to be inserted in the Industrial Disputes Act, 1947"}}, {"text": "section 11", "label": "PROVISION", "start_char": 14415, "end_char": 14425, "source": "regex", "metadata": {"linked_statute_text": "Osed to be inserted in the Industrial Disputes Act, 1947", "statute": "Osed to be inserted in the Industrial Disputes Act, 1947"}}, {"text": "Industrial Tribunal, Maharashtra, Bombay", "label": "COURT", "start_char": 15600, "end_char": 15640, "source": "ner", "metadata": {"in_sentence": "The Industrial Tribunal, Maharashtra, Bombay, considered the question whether section llA applies to the reference, which had been made as early as 12th August, 1968."}}, {"text": "12th August, 1968", "label": "DATE", "start_char": 15744, "end_char": 15761, "source": "ner", "metadata": {"in_sentence": "The Industrial Tribunal, Maharashtra, Bombay, considered the question whether section llA applies to the reference, which had been made as early as 12th August, 1968."}}, {"text": "April 21, 1972", "label": "DATE", "start_char": 15806, "end_char": 15820, "source": "ner", "metadata": {"in_sentence": "The Industrial Tribunal by its order dated April 21, 1972 has held that the restrictions imposed upon the powers of the Labour Court or Tribunal to interfere with orders of dismissal passed by the management, have been removed by section l lA, which has the effect of affecting tfie substantive part of the law of master and servant and, therefore, the said section has no retrospective effect."}}, {"text": "section 1", "label": "PROVISION", "start_char": 16247, "end_char": 16256, "source": "regex", "metadata": {"statute": null}}, {"text": "28-6-1972", "label": "DATE", "start_char": 16383, "end_char": 16392, "source": "ner", "metadata": {"in_sentence": "1995 of 1972 arises out of the order dated 28-6-1972 of the Fifth Labour Court at Bombay in Reference (l.D.A.) No."}}, {"text": "Fifth Labour Court at Bombay", "label": "COURT", "start_char": 16400, "end_char": 16428, "source": "ner", "metadata": {"in_sentence": "1995 of 1972 arises out of the order dated 28-6-1972 of the Fifth Labour Court at Bombay in Reference (l.D.A.) No."}}, {"text": "section 11A", "label": "PROVISION", "start_char": 16499, "end_char": 16510, "source": "regex", "metadata": {"statute": null}}, {"text": "June 27, 1972", "label": "DATE", "start_char": 17411, "end_char": 17424, "source": "ner", "metadata": {"in_sentence": "213 of\n\n1970], the same Labour Court has expressed similar views in its orders dated June 27, 1972."}}, {"text": "April 13, 1972", "label": "DATE", "start_char": 17837, "end_char": 17851, "source": "ner", "metadata": {"in_sentence": "79 o( 1971, the Second Labour Court in its order dated April 13, 1972 has held as follows:- Section 11 A gives power to the Labour Court to scrutinise domestic enquiries similar to that of ..an appellate court."}}, {"text": "Section 11", "label": "PROVISION", "start_char": 17874, "end_char": 17884, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 18499, "end_char": 18508, "source": "regex", "metadata": {"statute": null}}, {"text": "First Labour Court Bombay", "label": "COURT", "start_char": 18644, "end_char": 18669, "source": "ner", "metadata": {"in_sentence": "41 of 1956, the First Labour Court Bombay in its order dated January 3, 1973, has held that the section is retrospective in its operation and that the employer has got a right to lead evidence before the Labour\n\nCourt."}}, {"text": "January 3, 1973", "label": "DATE", "start_char": 18689, "end_char": 18704, "source": "ner", "metadata": {"in_sentence": "41 of 1956, the First Labour Court Bombay in its order dated January 3, 1973, has held that the section is retrospective in its operation and that the employer has got a right to lead evidence before the Labour\n\nCourt."}}, {"text": "Oeshmukh", "label": "LAWYER", "start_char": 19303, "end_char": 19311, "source": "ner", "metadata": {"in_sentence": "The contentions of Mr.\n\nOeshmukh.", "canonical_name": "Deshmukll"}}, {"text": "FIRESTONE TYRE & RUBBER CO. 595", "label": "RESPONDENT", "start_char": 22341, "end_char": 22372, "source": "ner", "metadata": {"in_sentence": "FIRESTONE TYRE & RUBBER CO."}}, {"text": "Deshmukh", "label": "LAWYER", "start_char": 23921, "end_char": 23929, "source": "ner", "metadata": {"in_sentence": "The above is the line of argument adopted by Mr. Deshmukh.", "canonical_name": "Deshmukll"}}, {"text": "Desukh", "label": "LAWYER", "start_char": 24879, "end_char": 24885, "source": "ner", "metadata": {"in_sentence": "Mr. Desukh\n\n~u~~ ~enc.e beffore the Tri?unal, strictl:iiuleJ11~0 pt:;:-~a1~ oloyer.", "canonical_name": "Deshmukll"}}, {"text": "dira Jai Singh", "label": "LAWYER", "start_char": 25251, "end_char": 25265, "source": "ner", "metadata": {"in_sentence": "Is 0 1g_atory now for an an order of dismissal or is::r; d valid enquiry before passing\n\nThe above contentions of Mr. Deshmukh have been adopted by Miss dira Jai Singh, Mr. Madan Mohan and Mr.13handare, counsel appearing for certain other workmen."}}, {"text": "Mr.13handare", "label": "LAWYER", "start_char": 25287, "end_char": 25299, "source": "ner", "metadata": {"in_sentence": "Is 0 1g_atory now for an an order of dismissal or is::r; d valid enquiry before passing\n\nThe above contentions of Mr. Deshmukh have been adopted by Miss dira Jai Singh, Mr. Madan Mohan and Mr.13handare, counsel appearing for certain other workmen."}}, {"text": "Bhandare", "label": "LAWYER", "start_char": 25352, "end_char": 25360, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nBhandare, however, was prepared to take a slightly different stand regarding; the proviso to section l!A. According to_ him only such evidence, which could and should have been produced by the parties in the domestic enquiry, is not allowed to be adduced before the Tribunal ' Mr. Damania, learned counsel, who advanced the leading arguments on behalf of the employers broadly contended as follows:- The restrictions imposed upon the jurisdiction exercised by the Labour Tribunals in respect of disputes arising out of orders passed by way of dismissal or discharge, as laid down by this Court in a number of decisions over a period of years, have not been altered by the new section."}}, {"text": "Damania", "label": "OTHER_PERSON", "start_char": 25633, "end_char": 25640, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nBhandare, however, was prepared to take a slightly different stand regarding; the proviso to section l!A. According to_ him only such evidence, which could and should have been produced by the parties in the domestic enquiry, is not allowed to be adduced before the Tribunal ' Mr. Damania, learned counsel, who advanced the leading arguments on behalf of the employers broadly contended as follows:- The restrictions imposed upon the jurisdiction exercised by the Labour Tribunals in respect of disputes arising out of orders passed by way of dismissal or discharge, as laid down by this Court in a number of decisions over a period of years, have not been altered by the new section."}}, {"text": "Section 1", "label": "PROVISION", "start_char": 27524, "end_char": 27533, "source": "regex", "metadata": {"statute": null}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 28242, "end_char": 28250, "source": "ner", "metadata": {"in_sentence": "Mr; Setalvad, learned counsel, appearing for Larsen & TOllbro Ltd, adopted these contentions of Mr. Damania."}}, {"text": "Larsen & TOllbro Ltd", "label": "ORG", "start_char": 28283, "end_char": 28303, "source": "ner", "metadata": {"in_sentence": "Mr; Setalvad, learned counsel, appearing for Larsen & TOllbro Ltd, adopted these contentions of Mr. Damania."}}, {"text": "section 3", "label": "PROVISION", "start_char": 28392, "end_char": 28401, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 29109, "end_char": 29119, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 31930, "end_char": 31940, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 32085, "end_char": 32095, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 32136, "end_char": 32146, "source": "regex", "metadata": {"statute": null}}, {"text": "hzdian Iron & Steel Co. Ltd.(2", "label": "ORG", "start_char": 32346, "end_char": 32376, "source": "ner", "metadata": {"in_sentence": "In discussing the nature of the jurisdiction exercised by an Industrial Tribunal when adjudicating a dispute relating to dismissal or discharge, it has been emphasised by this Court in\n\nhzdian Iron & Steel Co. Ltd.(2 ) as follows :\n\n\"Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified to give appropriate relief."}}, {"text": "WORKMEN V. FIRESTONE TYRE & RUBBER CO, 599 ( Vaidialingam", "label": "PETITIONER", "start_char": 33221, "end_char": 33278, "source": "ner", "metadata": {"in_sentence": "WORKMEN V. FIRESTONE TYRE & RUBBER CO, 599 ( Vaidialingam, J.)\n\nThis is the decision which has been referred to in the Statement of objects and reasons alr7ady adverted t?."}}, {"text": "Indian Iron & Steel Co. Ltd.", "label": "ORG", "start_char": 33657, "end_char": 33685, "source": "ner", "metadata": {"in_sentence": "Following the decision in Indian Iron & Steel Co. Ltd.('), this Court in The Punjab National Bank Ltd. v. Its Workmen(') held:\n\n\"In cases where an industrial dispute is raised on the ground of dismissal and it is referred to the tribunal for adjudication, the Tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not."}}, {"text": "Labour Appellate Tribunal in Buckingham", "label": "COURT", "start_char": 37940, "end_char": 37979, "source": "ner", "metadata": {"in_sentence": "In the above decision, this Court quoted with approval the decision of the Labour Appellate Tribunal in Buckingham and\n\nWORKMEN V. FIRESTONE TYRE & RUDDER CO."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 38687, "end_char": 38692, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab National Ba11k Ltd.", "label": "ORG", "start_char": 39075, "end_char": 39101, "source": "ner", "metadata": {"in_sentence": "The observations made by this Court in The Punjab National Ba11k Ltd. (supra) were quoted with approval."}}, {"text": "V aidialingam", "label": "JUDGE", "start_char": 47759, "end_char": 47772, "source": "ner", "metadata": {"in_sentence": "605 ( V aidialingam, J.) charging and tenninating the service of the workman concerned and whether the workman is entitled to any relief.", "canonical_name": "V aidialingam"}}, {"text": "Delhi", "label": "GPE", "start_char": 50077, "end_char": 50082, "source": "ner", "metadata": {"in_sentence": "in its recent decision in Delhi Cloth and General 'r\" o. Lt v. Ludh Bdh Sinf!h( 1)."}}, {"text": "section 11", "label": "PROVISION", "start_char": 55080, "end_char": 55090, "source": "regex", "metadata": {"statute": null}}, {"text": "Vaidia", "label": "JUDGE", "start_char": 57771, "end_char": 57777, "source": "ner", "metadata": {"in_sentence": "60 9 ( Vaidia/ingam, J.) intends to improve and safeguard.", "canonical_name": "V aidialingam"}}, {"text": "ingam", "label": "JUDGE", "start_char": 57778, "end_char": 57783, "source": "ner", "metadata": {"in_sentence": "60 9 ( Vaidia/ingam, J.) intends to improve and safeguard."}}, {"text": "Indian Iron & Steel Co. Ltd.(1", "label": "ORG", "start_char": 59015, "end_char": 59045, "source": "ner", "metadata": {"in_sentence": "Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd.(1 ) existed."}}, {"text": "Indian Iron & Steel\n\nC~. Ltd.(~", "label": "ORG", "start_char": 60104, "end_char": 60135, "source": "ner", "metadata": {"in_sentence": "The limitations imposed on\n\nthe powers of the Tnbunar by the decision in Indian Iron & Steel\n\nC~. Ltd.(~)."}}, {"text": "s3", "label": "PROVISION", "start_char": 60334, "end_char": 60336, "source": "regex", "metadata": {"statute": null}}, {"text": "General Mills Co. Ltd", "label": "ORG", "start_char": 61910, "end_char": 61931, "source": "ner", "metadata": {"in_sentence": "The stage at which the employer has to ask for such an opportunity, has been pointed out by this Court in Delhi and General Mills Co. Ltd(')."}}, {"text": "section 1", "label": "PROVISION", "start_char": 62804, "end_char": 62813, "source": "regex", "metadata": {"statute": null}}, {"text": "WORKMEN", "label": "PETITIONER", "start_char": 63569, "end_char": 63576, "source": "ner", "metadata": {"in_sentence": "WORKMEN V, FIRESTONE TYRE & RUBBER CO."}}, {"text": "section 11", "label": "PROVISION", "start_char": 63965, "end_char": 63975, "source": "regex", "metadata": {"statute": null}}, {"text": "us", "label": "JUDGE", "start_char": 65239, "end_char": 65241, "source": "ner", "metadata": {"in_sentence": "That is why, according to\n\nus, section HA now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points, Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies' on the findings recorded by him in a domestic enquiry."}}, {"text": "section\n\n11", "label": "PROVISION", "start_char": 65872, "end_char": 65883, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 65929, "end_char": 65939, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 66437, "end_char": 66446, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 66947, "end_char": 66957, "source": "regex", "metadata": {"statute": null}}, {"text": "shmukh", "label": "LAWYER", "start_char": 66969, "end_char": 66975, "source": "ner", "metadata": {"in_sentence": "The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by section 11 A.\n\nMr. Dc:shmukh rather strenuously urged that in all its previous decisions, this Court had not considered .", "canonical_name": "Deshmukll"}}, {"text": "Deshmukll", "label": "LAWYER", "start_char": 67933, "end_char": 67942, "source": "ner", "metadata": {"in_sentence": "The above aspect was stressed before us by Mr. Deshmukll ia support of the contention that section 11 A has taken not of.", "canonical_name": "Deshmukll"}}, {"text": "section 11", "label": "PROVISION", "start_char": 67977, "end_char": 67987, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 68362, "end_char": 68371, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 68514, "end_char": 68524, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 68955, "end_char": 68998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Workmen of Motipur Sugar Factory (Private) Limited", "label": "ORG", "start_char": 70174, "end_char": 70224, "source": "ner", "metadata": {"in_sentence": "A similar contention, though in a different form, advanced on behalf of the workmen was rejected by this Court in Workmen of Motipur Sugar Factory (Private) Limited( 1 )."}}, {"text": "industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 70896, "end_char": 70939, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 1", "label": "PROVISION", "start_char": 71014, "end_char": 71023, "source": "regex", "metadata": {"statute": null}}, {"text": "Des'1mukh", "label": "LAWYER", "start_char": 71174, "end_char": 71183, "source": "ner", "metadata": {"in_sentence": "If the contention of Mr. Des'1mukh regarding Standing Orders is accepted, then the Act will have to be applied in a different manner to employers.", "canonical_name": "Deshmukll"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 71474, "end_char": 71484, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 76220, "end_char": 76233, "source": "regex", "metadata": {"statute": null}}, {"text": "No change has been effected in that section by the Amendment Act", "label": "STATUTE", "start_char": 76377, "end_char": 76441, "source": "regex", "metadata": {}}, {"text": "Section 33", "label": "PROVISION", "start_char": 76847, "end_char": 76857, "source": "regex", "metadata": {"linked_statute_text": "No change has been effected in that section by the Amendment Act", "statute": "No change has been effected in that section by the Amendment Act"}}, {"text": "section 33", "label": "PROVISION", "start_char": 77195, "end_char": 77205, "source": "regex", "metadata": {"linked_statute_text": "No change has been effected in that section by the Amendment Act", "statute": "No change has been effected in that section by the Amendment Act"}}, {"text": "section 33", "label": "PROVISION", "start_char": 77533, "end_char": 77543, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 79535, "end_char": 79544, "source": "regex", "metadata": {"statute": null}}, {"text": "FIRESTONE TYRE", "label": "JUDGE", "start_char": 80589, "end_char": 80603, "source": "ner", "metadata": {"in_sentence": "It cannot be over-emphasised that conducting of a proper and valid enquiry bv an employer will conduce to harmonious and healthy relationship between him and the workman and\n\n={ B\n\nWORKMEN J), FIRESTONE TYRE & RUBBElt CO."}}, {"text": "RUBBElt", "label": "JUDGE", "start_char": 80606, "end_char": 80613, "source": "ner", "metadata": {"in_sentence": "It cannot be over-emphasised that conducting of a proper and valid enquiry bv an employer will conduce to harmonious and healthy relationship between him and the workman and\n\n={ B\n\nWORKMEN J), FIRESTONE TYRE & RUBBElt CO."}}, {"text": "have earlier referred to the fact that the Amendment Act", "label": "STATUTE", "start_char": 81107, "end_char": 81163, "source": "regex", "metadata": {}}, {"text": "8th December, 1971", "label": "DATE", "start_char": 81204, "end_char": 81222, "source": "ner", "metadata": {"in_sentence": "Having dealt with the proper interpretation to be placed on section l lA, we will now proceed to conside~ the second point regarding the applicability of the section to industrial disputes which had already been referred for adjudication and were pending with the Tnbunals on 15-12-1971 We have earlier referred to the fact that the Amendment Act received the assent of the President on 8th December, 1971."}}, {"text": "Amendment Act", "label": "STATUTE", "start_char": 81232, "end_char": 81245, "source": "regex", "metadata": {}}, {"text": "Deceinber 15, 1971", "label": "DATE", "start_char": 81324, "end_char": 81342, "source": "ner", "metadata": {"in_sentence": "It came into force only with effect from Deceinber 15, 1971, as per the Notification issued by the Central Government on 14-12-1971 under section l, subsection 2."}}, {"text": "Central Government", "label": "ORG", "start_char": 81382, "end_char": 81400, "source": "ner", "metadata": {"in_sentence": "It came into force only with effect from Deceinber 15, 1971, as per the Notification issued by the Central Government on 14-12-1971 under section l, subsection 2."}}, {"text": "14-12-1971", "label": "DATE", "start_char": 81404, "end_char": 81414, "source": "ner", "metadata": {"in_sentence": "It came into force only with effect from Deceinber 15, 1971, as per the Notification issued by the Central Government on 14-12-1971 under section l, subsection 2."}}, {"text": "section 2", "label": "PROVISION", "start_char": 81435, "end_char": 81444, "source": "regex", "metadata": {"linked_statute_text": "But the Amendment Act", "statute": "But the Amendment Act"}}, {"text": "Indira Jai Singh", "label": "LAWYER", "start_char": 81452, "end_char": 81468, "source": "ner", "metadata": {"in_sentence": "Miss Indira Jai Singh, learned counsel for the appellantworkmen, in Civil Appeal No.", "canonical_name": "Indira Jai Singh"}}, {"text": "15-12-f 971", "label": "DATE", "start_char": 81780, "end_char": 81791, "source": "ner", "metadata": {"in_sentence": "According to the learned counsel, section llA applies not only to references, which are made on oi: after 15-12-f 971, but also to all references already made and which were pending adjudication on that date."}}, {"text": "Chapter IV of the Act", "label": "STATUTE", "start_char": 81950, "end_char": 81971, "source": "regex", "metadata": {}}, {"text": "section 11", "label": "PROVISION", "start_char": 82052, "end_char": 82062, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Act", "statute": "Chapter IV of the Act"}}, {"text": "section 11A", "label": "PROVISION", "start_char": 82401, "end_char": 82412, "source": "regex", "metadata": {"linked_statute_text": "Chapter IV of the Act", "statute": "Chapter IV of the Act"}}, {"text": "section 1", "label": "PROVISION", "start_char": 83020, "end_char": 83029, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 84190, "end_char": 84204, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and Mr. Tarkunde, learned counsel, appearmg for other employers, adopted the contentions of Mr. Darnania.", "canonical_name": "M. C. Setalvad"}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 84213, "end_char": 84221, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and Mr. Tarkunde, learned counsel, appearmg for other employers, adopted the contentions of Mr. Darnania."}}, {"text": "Darnania", "label": "OTHER_PERSON", "start_char": 84301, "end_char": 84309, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and Mr. Tarkunde, learned counsel, appearmg for other employers, adopted the contentions of Mr. Darnania."}}, {"text": "section 11", "label": "PROVISION", "start_char": 84356, "end_char": 84366, "source": "regex", "metadata": {"statute": null}}, {"text": "Indira", "label": "JUDGE", "start_char": 85795, "end_char": 85801, "source": "ner", "metadata": {"in_sentence": "Miss Indira J ai Sing4, learned counsel, placed considerable reliance on the use of the expressions 'has been referred' in section 1 lA as indicating that the section .!IPPlies even to all references made before 15-12-1971."}}, {"text": "section 1", "label": "PROVISION", "start_char": 85913, "end_char": 85922, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 86315, "end_char": 86324, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 86333, "end_char": 86342, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 86480, "end_char": 86489, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 86493, "end_char": 86502, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7(3)(a)", "label": "PROVISION", "start_char": 86619, "end_char": 86634, "source": "regex", "metadata": {"statute": null}}, {"text": "Labour Court constituted under any Provincial Act or State Act", "label": "STATUTE", "start_char": 86865, "end_char": 86927, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 87275, "end_char": 87284, "source": "regex", "metadata": {"linked_statute_text": "Labour Court constituted under any Provincial Act or State Act", "statute": "Labour Court constituted under any Provincial Act or State Act"}}, {"text": "section 7", "label": "PROVISION", "start_char": 87288, "end_char": 87297, "source": "regex", "metadata": {"linked_statute_text": "Labour Court constituted under any Provincial Act or State Act", "statute": "Labour Court constituted under any Provincial Act or State Act"}}, {"text": "section 1", "label": "PROVISION", "start_char": 88037, "end_char": 88046, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 57", "label": "PROVISION", "start_char": 88641, "end_char": 88651, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 88666, "end_char": 88676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 57", "label": "PROVISION", "start_char": 89043, "end_char": 89053, "source": "regex", "metadata": {"statute": null}}, {"text": "BoJ!lbay High Court", "label": "COURT", "start_char": 89165, "end_char": 89184, "source": "ner", "metadata": {"in_sentence": "It was contended before the BoJ!lbay High Court that section 57 was prospective al)d could. !]"}}, {"text": "section 57", "label": "PROVISION", "start_char": 89190, "end_char": 89200, "source": "regex", "metadata": {"statute": null}}, {"text": "section 57", "label": "PROVISION", "start_char": 89723, "end_char": 89733, "source": "regex", "metadata": {"statute": null}}, {"text": "section 57", "label": "PROVISION", "start_char": 89858, "end_char": 89868, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 89883, "end_char": 89893, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 91697, "end_char": 91716, "source": "ner", "metadata": {"in_sentence": "Similarly the decision of the Calcutta High Court in Birla Brothers; Ltd. v. Modak( 1) [whiCh has been approved in Jahiruddin v. K. D. Rathi, Factory Manager."}}, {"text": "section 23", "label": "PROVISION", "start_char": 92492, "end_char": 92502, "source": "regex", "metadata": {"statute": null}}, {"text": "Bankruptcy Act 1890", "label": "STATUTE", "start_char": 92510, "end_char": 92529, "source": "regex", "metadata": {}}, {"text": "section 11", "label": "PROVISION", "start_char": 95969, "end_char": 95979, "source": "regex", "metadata": {"statute": null}}, {"text": "Further the section itself was brought into force some time after the Amendment Act", "label": "STATUTE", "start_char": 96118, "end_char": 96201, "source": "regex", "metadata": {}}, {"text": "section 1", "label": "PROVISION", "start_char": 96331, "end_char": 96340, "source": "regex", "metadata": {"linked_statute_text": "Further the section itself was brought into force some time after the Amendment Act", "statute": "Further the section itself was brought into force some time after the Amendment Act"}}, {"text": "Labour Court, Bol); lbay", "label": "COURT", "start_char": 97298, "end_char": 97322, "source": "ner", "metadata": {"in_sentence": "1995 of 1972, 1996 of 1972 and 2386 of 1972, the Labour Court, Bol); lbay has held that section 11A applies even to disputes which had been referred prior to 15-12-\n\n1971."}}, {"text": "section 11A", "label": "PROVISION", "start_char": 97337, "end_char": 97348, "source": "regex", "metadata": {"statute": null}}, {"text": "15-12-\n\n1971", "label": "DATE", "start_char": 97407, "end_char": 97419, "source": "ner", "metadata": {"in_sentence": "1995 of 1972, 1996 of 1972 and 2386 of 1972, the Labour Court, Bol); lbay has held that section 11A applies even to disputes which had been referred prior to 15-12-\n\n1971."}}]}
{"document_id": "1973_3_624_636_EN", "year": 1973, "text": "HINDUSTAN LEVER LTD.\n\nRAM MOHAN RAY & ORS.\n\n(With cannected appeal) March 1, 1973\n\n(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAID!ALINGAM JJ.)\n\nIndustrial DiJ/putes Act (14 of 1947) ss. 9A, 33A and 33C and 4th Schedule items 8, 10 and 11-Scope of Industrial DiJ/pute-Reference to Tribunal Applications by Workers pending reference-DiJ/posed of by different Tribunal-Contradidory findings-Procedure not illegal.\n\nConstitution of India, 1950, Article 13cope of.\n\nBefore September 196.6 the marketing organisation of the employer company was in three divisions.\n\nThereafter it was organised into two divisions. There were extensive and prolonged consultations. between the employer and the employees but the reorganisation was not approved by the employees. The new scheme was introduced on the 5th or 6th 5eptember and the industrial dispute arising therefrom was referred to the Tnbunal on 30th September. The workers presented themselves for work every day and offered to work according to the old scheme but they were not given any w(!rk. They were told that as long as they refused to work under the new scheme they would not be paid any wages. Some workers had voluntarily retired and the vacancies were not filled. Therefore, pending th~ adjudication on the reference already made, sen workers filed applications under s. 33A of the Industrial Disputes Act, 1947, alleging that during the pendency of the adjucation, their service conditions bad been changed adversely and that their salary for the month of October had not been paid.\n\nThe Industrial Tribunal was different in the two cases as also the evidence let. in. in the two cases.\n\nIn the main reference, the Tribunal held in favour of the\" employer.\n\nWith reference to the applications of the employees, the other Tribunal held in favour of the employees on the grounds that the conditions of . work had been changed to the workers' prejudice, that the reorganisation was likely to lead to re\n\ntrenchmen~ that the matter thus fell under item I 0 of Schedule 4 to the Act and that therefore, the employees were justified in refusing to work.\n\nBoth parties appealed to this Court.\n\nHELD : On a consideration df the material in each of the awards both the awards should be upheld.\n\n[628 A-BJ . (I) The evidence given in the main reference not being a part of the evidence in the applications filed by the employees it is . not open to this Court to take it mto consideration in deciding the appeals filed by the employer as against the award in favour of the employees. [628AJ\n\n(2) This Court, in considering a matter under Art. 136, does not ordinarily reassess the evidence on the basis of which the Tribunal came to its conclusion. It will interfere with ftndings of fad> only if they are unsupported by any evidence or are wholly perverse.\n\n[628 D-BJ\n\n(3) The reorpnisation is neither a change in usage fallin11 tmder item 8 of the 4th Schedule to the Act, nor rationalisati0n falling under item 10, nor an increase or reduction in .the nUIJlber of. persons employed in any department falling under item 11; and hence, it w.s not necessary .. ,, give any notice under s. 9A of the Act. (633 D-BJ\n\nHINDUSTAN LEVER V. R. M. RAY 625\n\n(a) The employer has a right to organise his work in the manner he pleases.\n\n[631C]\n\n(b) The various decisions shoW that whether any particular practice or allowance or concesSion had become a condition of service would always depend upon the 'facts and circumstances of each. case..\n\nOn the evidence and findings given by the Tribunal it cannot be held that there has been any change in the terms and conditions of service of the workers in this case to their detriment. [633 C-El\n\nParry & Campany's [19701 1 L.L.J. 429; Dharangadhara Chemical Works Ltd. v. Kan/u Kalu & Ors. [1955] 1 L.L.J. 316; Chandramalai Estate' It; Workmen [1960] 2 L.L.J. 243; The Graham Trading Co.\n\n(India) Ltd. v. It~ Workmen [1960] 1 S.C.R. 107; Workmen of HindUJ>o tan Shipyard Ltd. v. l.T. [1961] 2 L.L.J. 526; McLeod & Co, v. Its Work: men [1965]\n\n1 L.L.J. 396; Indian Overseas Bank v.\n\nTheir Work7?1en [1967-68] 33\n\nF.J.R.. 457; Indian Oxygen Limited v. Udaynath Singh [1970] 2 L.L.J. 413; Oil & Natural Gas Commission v. Their Workmen [1972] 42 F.J.R. 551 and Tata Iron & Steel Co. v. Workmen A.l.R. [1972]\n\nS.C. 1917, referred to.\n\n(c) The Tribunal held on the basis of oral as well as documentary evidence that the contention of the workers that it was a condition of serviCe of every employee to work for only One division at a time was not established.\n\nThe arrangement of the words and phrases in item 10 shows that only rationalisation or standardisation or improvement of plant or technique which is likely t.o lead to retrenchment of workmen that would fall under that item and not mere rationalisation or standardi sation. The retrenchment contemplated is retrenchment as defined in s. 2(00), which does not include voluntary retirement of the workmen.\n\nTherefore. the \\VOrkers cannot make a grievance of the voluntary retirement and non-filling Of vacancies and try to bring the matter under item\n\n10. The employer had the right to decide the staff complement and to fi11 only such jobs as continued to exist and not automatically replace every individual.\n\n[630 A-HJ\n\n\nTherefore, there is no reason for differing from the findings of the Tribunal that there bas been no change in usage adversely affecting the workers coming under item 8, and that there has been no retrenchment under ilem 10. [63201 ( 4) The 4th schedule relates to conditions of service for change of which the notice is to be given, and s. 9(A) requires the employer to give notice under that section to the workmen likely to be affected by such change. The word 'affected' in the circumstances could only refer to the worken being adversely affected and unless it could be shc.wn that the abolition of one department has adversely affected the workers it cannot be brought under item 11.\n\n[631 A-CJ\n\n[\"The. question whether the prolonged and detailed discussion between the. parbes was a substantial compliance wilh the provisions of s. 9 A not decided]. f633El\n\n(5) But the non-payment of wages in the circumstances of this case amounts to \"!' alteration in the conditions of serviee and the fact that the scheme was 10troduced before the reference under s. lO was made does not bar an application under s .. 33A. The tribunal was justified in coming to lhe conclusion that 1his alteration in the conditions of service could not have been made without the notice under s. 9A. [634 OD; 635 B-C:\n\n(a) The applications in this case were not for wages due for the <month of September but for October.\n\n[634E]\n\n(b) The refusal to pay wages was not a solitary instance in respect of which an application could have' been Irulde under s. 33C. It was a con tinued refusal and the cause of action arises de die in diem. If the refusal of the workers to work under reorganisatidn scheme is justified then the refusal by management to pay unless they work under the reorganisation scheme would amount to alteration of the conditions of service <if Workers. [634 GHJ\n\n(c) Even if an application had been made under s. 33C the whole scheme would have been considered and it is not fair at this distance of time to drive the workers to file application under that section, the procedure for which would be the same as under s. 33A, merely on die ground that the introduction of the scheme had taken place before the reference to the adjudication was made. [636 B-C]\n\n(d) The Tribunal had found that the reorganisation scheme had rendered some workers surplus, that the scheme had seriously prejudiced tile workers, and that the apprehension of the workers that the reorganisation would result in some members of the staff becoming surplus had come true. [635 A-Bl\n\nNorth Brooke Jute Co. Ltd. [1960) 3 S.C.R. 364, National Coal Co. v.\n\nL. P. Dave, [1956] A.I.R. Patna 294, Shamo, Biscuit Co. v. Their Workmen [1952] 2 L.L.J. 353, referred to:\n\nRam Nath Koeri v. Lakshmi Devi Sugar Mills & Ors. [1956] 2 L.'L.J. 11, approved.\n\n(e) If all the evidenee which was let in in the main referenae were available to the Tribunal which decided the applications of the workert, the result might have lieen llift'erent. But it could not be said that the Tribunal is wrong in having proceeded to dispoee <if the matte~ the way it. did. f,636 A-Dl\n\nCML APPELLATE JUIUSDrcnoN : Civil Appeals Nos. 675 to 681 of 1967. '\n\n.Appe8Js by special leave from the Award dated , March 23, 1967 of the Third Industrial Tribunal, West Bengal in Misc. Cases Nos. 161, 160, 162-64 and 167 of 1966.\n\nAND Civil Appeal No. 1759 of 1971 Appeal by special leave from the Award dated August 11, 1969 of the Third Industrial Tribunal, West Bengal, Calcutta in Case No. vm:-373 of 1966 published in the. Calcutta Gazette dated 27-9-1969. ·\n\nS. V. Gupte, G. B. Pai, Bhuvan.esh Kumari, B. Ram Rakhlanl and/, B. Dadochanji & Co. for the. appellant. (In C.As, 675- 681/67). .\n\nV. M. Tarkunde, ]Wthin TJas, litendra Sharma and s. IC.\n\nGanguli & Co. for the appellant. (In C.A. 1759/71). . -'\n\nA V. M. Tarkunde, Jitendra Sharma and Janardari Sharma, for\n\nthe Respondent.\n\nThe Judgment of the Couvt was delivered by\n\nALAGIRISW AMI; J .-The first batch of appeals are by the Hindustan Lever Ltd. (hereinafter called the Employer) and Civil Appeal No. 1759 of 1971 is by the Mazdoor Sabha of the workers of the same employer in its Calcutta Branch.\n\nThe Calcutta Branch was concerned only with marketing. From the year 1956 at least, if not earlier, the company's marketing organisation was in three divisions, the Soaps Division, the Foods Division and the Toilet Preparations Division. From 6-9-66 the Company reorganised this marketing organisatioi:i into two divisions, the Main Lines Division and the Speciality Lines Division.\n\nOn 30-9-66 the Government of West Bengal referred to the Third Industrial Tribunal the following question for adjudication :\n\n\"Is the human rationlilisation as a measure of economic reorganisation of the Company reflected through job-integration that have either been effected or proposed to be effected justified ? To what relief, if any, are the workmen entitled?\" Pending adjudication of this issue seven workers filed applications under seotion 33A of the Industrial Disputes Act before the same Tribunal alleging that during the pendency of the adiudication their service conditions had been changed adversely and their salary or the month of October 1966 had not been paid. The Tribunal held in favour ol. the workers and passed its award on 23-3-1967. By special leave granted by this Court the employer has filed the above 7 appeals.\n\nThe main reference was finally disposed of on 11-8-69 by the same Tribunal holding in favour of the employer and the workers have, therefore, filed Civil Appeal No. 1759 of 1971 by special leave granted by this Court.\n\nIt should be mentioned that the Presiding Officer of the Industrial Tribunal was different in the two cases but the different conclusions arrived at by the two Presiding Officers were not due to G the accident of difference in personnel. There was a vast mass of evidence let in by the employer in the maili refererrce on a consideration ol which the Tribunal held in favour of the employer.\n\nOn the other hand the evidence in the applications, filed under section 33A of the Industrial Disputes Act, let in by the employer was meagre and the Tnbunal came to the conclusion un the material available before it that the conditions of work of workers H had been changed to their prejudice, that. the reorganisation was likely to lead to retrenchment and that the matter thus fell under Item 1 O of Schedule IV of the Industrial Disputes Act. The evidence given in the main reference not being part of ti)e evidence in these 7 cases it is not open to this Court to take it into consideration in deciding these 7 appeals. On an exhaustive consideration of the material in bpth the awards we have come to the conclusion that both the awards should be upheld.\n\nThough the decision in the appeals by the management is based on the finding .of the Tribunal that the conditions oi work had been changed to the disadvantage of the workers, and the decision in the appeal filed by the workers is in effect that the conditions have not been so changed, that is due to the evidence available in the o cases. Mr. Tarkunde appearing on behalf of the workers in the appeal filed by them in C.A. No. 1759 of 1971 in effect invited us to re-assess the evidence in that case.\n\nHis whole point was that the reorganisation effected by the management in September 1966 was one which attracted items 8, 10 and 11 of the IVth Schedule to the IndU9trial Disputes Act and as such a notice in accordance with Rule 34 of the West Bengal Industrial Disputes Rules and Form (E) appended to those rules, under section 9A of that Act was necessary. He was at pains to estab'lish this proposition lest it should effect the workers in the others 1 appeals filed by the employer.\n\nThis Court in considering a matter under Article 136 does not ordinarily re-assess the evidence on the basis of which the Tribunal came to its conclusions. It will interfere with the findings of facts by the Tribunal only if it is unsupported by any evidence or is wholly perverse. It will not interfere with findings of the facts if two views are possible as to the conclusions to be arrived at' on the basis of the evidence even though the conclusions arrived at by the Tribunal might not commend itself to this Court. Mr.\n\nTarkunde even indicated that he was not very much interested in the success of the appeal of the workers in the sense that he wanted the scheme oi reorganisation introduced by the employer to be dropped.\n\nAccording to him the employer had the right to reorganise his business subject only to his compliance with the provisions of section 9A of the Industrial Disputes Act, which according to him has not been done in this case. He wanted to establish this proposition only for laying a foundation for the argument that when after the introduction of the reorganisation by the employer the workers refused to work except on the basis of the previous system of working. they were perfectly within their rights and it was, therefore, illegal for the management to have refused to pay them their salary and that this was an. alteration of the conditions of their semce during the pendency of an adjudication of an industrial dispute before the Industrial Tribunal. But in the view we are taking regarding the correctness of the award of the Industrial Tribunal on the applications of the workers under.section 33A the workers would probably. have no grievance.\n\nWe shall first of all deal with the appeal by the workers. Two points were raised by Mr. Tarkunde :\n\n1. That it was necessary to give notice under section 9A and wait for 21 days before implementing the scheme of reorganisation, and\n\n2. as notice was necessary, the scheme cannot be said to b; e justified when it was implemented.\n\nAs regards non-payment of wages, as subsidiary paints, he raised the questions :\n\n1. the workmen were justified in refusing to work under the new scheme, and\n\n2. the non-payment of wages amounted in the circumstances of the case to an alteration in the conditions of service to the prejudice of workers.\n\nThese two are really questions which arise in the appeals flied by the employer and not in this appeal.\n\nAccording to Mr. Tarkunde the very fact that three Divisions were sought to be reduced to two would show that it would increase the workload on the workmen and result in retrenchment. We do not think that the matter could be disposed of on such a priority consideration. His grievance also was that the employer had agreed to. consult the workers but did not do so.\n\nHe also urged that three godowns which previously existed were reduced to two godowns and that proved a eater burden on the Godown Keeper. He further urged that the Journey Cycles, i.e. the period during which salesmen were expected to be on tour contacting the various dealers were increased from 4 weeks to 6t weeks and that this also proved a greater burden on the salesmen. He urged that the Sabb.a had a reasonable apprehension that there will be retrenchment if the 6t week cycles were introduced.\n\nBui he conceded that this was avoided in actual working.\n\nAs already mentioned earlier, he contended that the Sabha has now no objection to the present arrangement but the employer contends that conditions are very unstable and they now have 3 and even 4 divisions. According to him the reorganisation is either a change in usage falling under item 8 of IVth Schedule to the Act or rationalisation falling under item 10 or incrase or reduction in the number of persons employd in any department net o.:casioned by circumstances over which the employer has no control falling under item 11.\n\nAccording to him the workers having been accustomed to working under 3 divisions, reorganisation into 2 divisions amounted to a change in usage.\n\nHe also urged that rationalisation and standardisation per se would fall under item 10 even if they were not likely to lead to retrenchment of workmen and only improvement of plant or technique would require that they should lead to retrenchment of 8-l 761Sup.C.I./73 •\n\nworkmen in order to fall under item 10. A further submission of his i.vas that standardisation merely meant standardisation of wages.\n\nWe are not able to accept this argument. It appears to us that the arrangement of words and phrases in that item shows that only rationalisation or standardisa'tion or improvement of plant or technique, which is likely to lead to retrenchment of workmen would fall under that item. In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment of workmen. The reference to rationalisation at page 257 of the report of the Labour Commission and the reference to standardisation of wages in it are not very helpful in this connection.\n\nStandadisation can be of anything, not necessarily of wages.\n\nIt may be standardisation of workload, standardisation of product, standardisation of working hours or standardisation of leave privileges. Indeed in one deci sion in Alembic Chemical Works Co. Ltd. v. The Workmen(') there is reference to standardisation of conditions of service, standard\\sation of hours of work, wage structure. That case itself was concerned with standardisation of leave. The whole question whether this reorganisation falls under item 10 depends upon whether it was likely to lead to retrenchment of workmen.\n\nOn this question, as already indicated, the two Tribunals have arrived at two different conclusions. But as already indicated, it depended upon the evidence in each case.\n\nIt is not disputed that the reorganisation has not resulted in any retrenchment. Moreover, during the o;;0urse of rather prolonged negotiations between the parties the employer made it abundantly clear again and again that no body would be retrenched.\n\nIt was clearly made part and parcel of the scheme of reorganisation.\n\nHindustan Lever Ltd. being a large organisation covering the whole of the country there was no difficulty abOut giving effect to 1this reorganisation scheme without retrenching anybody. It was, however, urged on behaY of the workers that there have been a numi, er of voluntarily induced retirements and that many posts were not filled after the holders of these posts had retired or left. We are of opinion that the retrenchment contemplated under Hem 10 is retrenchment as defined in clause ( oo) of section 2 where it is defined as the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include voluntary retirement of the workman.\n\nThe workers cannot, therefore. make a grievance of the voluntary retirement and non-tilling of vacancies and try to bring it under item 10.\n\nAs regards item 11 it was urged that as one department out of three has been abolished, ithis item applies. Though to bring the matter under this item the workmen are not required to show\n\n\nthat there is increase in the workload, it must be remembered that the 4th Schedule relates to conditions of service for change of which .notice is to be given and section 9A requires the employer 'to give notice under that section to the workmen likely to be affected by slich change. The word 'affected' in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely affected the workers it cannot be brought under item 11. The same consideration applies to the question of change in usage under item 8. Let us, therefore, see what was the scheme of reorganisation to which the workers took exception.\n\nThere can be no dispute that the employer has got the right to organise his work in the manner he pleases as w:is held in Parry & Company's(') case.\n\nAs we have pointed out earlier there was extensive and prolonged consultation between the parties.\n\nThe real grievance of the workers seems to be that the reorganisation of the working did not have their approval.\n\nBefore the Tribunal the objection ol the S; abha to the Company's scheme of reorganisation was that it as a condition of service_ of every employee to work for only one division at a time after amalgamation af the three companies and for only one company prior to amal- 'gamation. But the conditions in the levters of appointment of every worker in the company show the contrary.\n\nThe Tribunal also found that the Salesmen of the company did in fact handle products of more 1han one division a.t..a time in the course of joint selling operation since 1960. It was admitted that they also did it in the course of integrated selling in Assam since 1964 but that is said to be tecause that was done on an experimental basis. It was admitted that there are many employees in different departments of the company who by virtue of their jobs cannot be attached to any one division. The Tribunal, therefore, held on the basis of oral as well as documentary evidence that the contention of the workers that it Wlls a condition of service of every .employee to work for only one division at a time was not established. It Is in evidence that the company on occasions transferred products from one group to the other group to meet the business exigencies of the company.\n\nAfter referring to such instances the Tribunal has held tha!I in certain cases a system of joint selling of products of the three divisions by the same salesmen through Sales Vans in several markets in India was adopted. According to the employer if the three divisional set up had been continued, it would have adversely affected\n\nthe business of the company and kept a large number of salesmen of the Foods Division only partly occupied and the company could have had no option but to retrench some number of salesmen work-\n\n(I) [1970] I.L.L.l. 429.\n\ning in the Foods Division. It, itherefore, effected the reorganisation to meet the challenge of. change in marketing conditions.\n\nThe scheme of reorganisation in this case was : Firstly, as a result of the regrouping of the products from the three divisions into two lines, the sales management staff of the company was redeployed on a geographical basis instead of product group basis.\n\nSecondly, the employer reorganised its trade outlets so that Re- Distritution Stockists would handle all the products of the company rather than the products of any particular division. Thirdly. the entire sales force was redeployed over two products groups, i.e. Main Lines and Speciality Lines. The Tribunal following the decision of this Court in Parry & Co. case held that the employer has the right to decide the staff complement and to fill only such jobs as continued to exist and not automatically replace every individual. The Tribunal has gone elaborately into the question of workload and come to the conclusion that there is no increase in the workload.\n\nWe have already referred to the question of journey cycles. We see no reason to differ from the finding of the Tribunal that there has been no change in usage adversely effecting the worker. and that as there has been no retrenchment item 10 of Schedule IV is not attracted nor is item 11.\n\nIt is hardly necessary to refer to the various decisions which were cited before us as to what would constitute conditions of service the change of which would require notice under section 9A of the Act. In Dharangadhara Chemical Works Ltd. v. Kantu Kalu & Ors. ( 1) the Labour Appell:rte Tribunal of India held that the increase in the weight of bags to be carried from 1 cwt to 1 t cwt was a change in !he workload and the com11any was bound •to pay wages as the workmen were willing to work t did nJt work on account of the unreasonable attitude adopted by the management. In Chandramalai Estate v. Its Workmen(') the payment of Cumbly allowance was held to have become a condition of service . In The Graham Trading Co. (India) Ltd. v. Its\n\nWorkmen(\") it was held that the workmen were not entitled to Puja bonus as an implied term of employmnt. In Workmen of Hindustan Shipyard Ltd. v. l.T.(') in the matter of withdrawal of concession of coming late by half an hour (than the usual hour), it was held that the finding of the Industrial Tribunal that section 9A did not apply to the case did not call for interference. But the decislan proceeded on 1he basis that the Court will not interfere in its jurisdiction unless there was any manifest injustice. In McLeod & Co. v. Tis Workmen(') the provision for' tiffin was held to be an amenity to which the employees were entitled, and\n\n(l) [1955] I L.L.J. 316.\n\n(3) [1960] I S.C.R. 107,\n\n(5) !1964] I L.L.J. 386.\n\n(2) [1960] 2 L.L.J. 243.\n\n(4) [1961] 2 L.LJ. 526.\n\nHl\"IDUSTAN LEVER v. R. M. RAY (Alagiriswami, J.) 633\n\nthe provision of cash allowance in lieu of free tiffin directed to be made by the industrial tribunal could not be considered to be\n\nerroneous in law. In India Overseas Bank v. Their Workmen(') \"key allowance \" was treated as a term and condition of service.\n\nIn Indian Oxygen Limited v. Udaynath Singh(') withdrawal by the management of the supply of one empty drum at a time at reasonable intervals was held not to contravene section 9A and\n\n33. In Oil & Natural Gas Commission v.\n\nTheir Workmen(') where there was nothing to show that it was a condition of service that a workman should work for 6t hours only, no notice of change was held to be required under section 9 A for fixing the hours of work at eight. In Tata Iron & Steel Co. v. Workmen(') change in weekly days of rest from Sunday to some other day was held to require notice. A close scrutiny of 1the various decisions would show 'that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions. In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold th3'1: there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that section 9A is not attracted. It is,. therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on bhalf of the employer that in view of ithe very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of section 9A and othe mere faot that a formal notice was not given under section 9A would not make the reorganisation scheme not valid.\n\nIn the applications filed by the workers the Tribunal was c0nscious of the employer's right to reorganise his business in any fashion he likes for purposes of economy or convenience and that no body is. entitled to tell him how he should conduct his business.\n\nBut it was of the opinion that this right of 1he employer is subject to the limitations contained in section 9A. It specifically considered the applicabfili1y of item 10 of the Fourth Schedule to the Act and relying upon the decision in North Brooke Jute Co.\n\nLtd. (1) held that no schenie of rationalisation could be given effect to if it was not preceded by a notice under section 9A. It did not c<msider it necessary to give a final decision regarding the legality or otherwise of the scheme introduced by the company.\n\nBut it considered .whether the workers' refusal to work under the new scheme was justified. On the evidence it held tha't the Union\n\nhad the apprehension that the proposed reorganisation would\n\n(I) (1967-68) (33) F.J.R. 457.\n\n(3) (1972) 42 F.J.R. 551.\n\n(5) [1960) 3 S.C.R. 364.\n\n(2) [1970) 2 L.L.J. 413.\n\n(4) A.l.R. 1972S.C.1917.\n\nresult in some members of the staff becoming surplus, and that A this apprehension was not without justification, and that the apprehension became true when the reorganisation was actually introduced.\n\nIt also held that the workload of the various applicants increased as a result of the reorganisation.\n\nIt, therefore, held that worke.rs were within their legitimate right to refuse ti:> do the work under the new scheme as no notice has been given under item 9A.\n\nB It held that however laudable the object of the reorganisation may be, it cannot be doubted for a moment on the evidence on record that the scheme has seriously prejudiced the workers. It, therefore, directed the employer to pay all the workers their wages for October\n\n1966.\n\nMr. Gupte appearing for the employer contended relying on the decision in the case of North Brook Jute Co, Ltd. v. Their Workmen (supra) that the 1.1lteration .of the conditions of service in •this case, even 1f it should be held that non-payment of wages amounted to alte.ration of conditions of service, was made not when a reference under section 10 was pending but that •the reference itself having been made after the reoganisation, no application could be made under section 33A. Technically no doubt this contention is correct because the scheme was introduced on the 5th or 6th of September and the reference was made on 30th of Sptcmber.\n\nBut the applications in this case were not for the wages due for the month of September but for October. The applications proceeded on the basis that the non-payment of wages was an alteration in the conditions of service, and it is to that question that we must first address ourselves. Mr. Gupte contended that non-payment of wages is not an alteration of conditions of service and that no applicirtion under section 33A could be made in such cases as the remedy available was under section 33C. We are not able to appreciate &is argument. Indeed payment of wages is one of the most important among the workers' conditions of service. The worker works essentially only for the wages to be paid to him.\n\nTherefore, the question that would really have to be answered is whether the refusal of the worker to work was justified or not.\n\nIt is in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, there~ fore, was not a solitary instance in respect of which an application could have been made under section 33t:. It was a continued rec fusal.\n\nIt was, lherefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem.\n\nIf the refusal of the workers to work under the rorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amourn\n\nto alteration of the conditions of service oi workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face Of the findin)l of the Tribuanl\n\nthat the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of. the staff becoming surplus came true, it cannot be said that the failure of the employer IO give notice under section 9A and introducing the scheme of reorganisation without such notice is jutified. It means that the workers were justified in rofusing to work under the new scheme.\n\nIt follows that the refusal to pay their wages amounted to alteration of conditioJ:!s of service and the applications were, therefore, rightly made under section 33A.\n\nEven apart from thllt it was urged by Mr. Gup, te relying upon the decision in National Coal Co. v. L. P. Dave( ) that non-payment of wages was neither an alteration in the conditions of service nor is it a punisluflent and as such ca:nnot come within the mischief of section 33 of the Act. The Patna High Court relied also for its decision on the decision in Shama Biicuit Co. v.\n\nTheir Workmen(').\n\nThe facts of that case are not quite clear.\n\nThe Court gives no reason tor its view that the non-payment of wages is not an alteration of conditions of serv.ice applicable to workmen and that it was only a case of default of payment of wages on the pay day falling under Payment of Wages Act.\n\nThe facts there were in any case different from the facts of the present case. We may refer to. the decision of the Allahabad High Court in Ram Nath Koeri v.Lakshmi Devi Sugar Mills. & Ors.(') where it wa& observed that the payment of wages is one of the essential ingredients of the contract of employment and that the word 'conditions' includes the idea conveyed by the word 'terms' but goes beyond it and is not confined to what is included in that word. The Court also held that 'terms and conditions of employment' is wider in scope than the expression 'terms and conditions of labour'.\n\nBut as we have already observed failure or refusal to pay wages for a certain period may necessitate proceeding under section 33C, but refusal to pay wages indefinitely on the refusal of the workers to work according to a scheme of reorganisation which was not a valid one, because of the failure to give notice under section 9A, cannot but be considered to be an altera1ion in the conditions of service of the workers.\n\nMr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified.\n\nHe also contended that the applications by the workers as well as the reference\n\n(1) A.LR. 1956 Patna 294.\n\n(3) [1956] 2 L.L.J. II.\n\n(2) [1952] 2 L.L.J. 353.\n\nmade by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of die employer. As we have pointed out earlier if all the evidence which was Jet in in the reference were available to th~\n\nTribunal which decided the applications of the workers, the result might well have been different. But we do nO't consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under section 33C, the whole scheme would have to be considered and i<t is not fair at this distance of time to drive the workers to file applications under section 33C, the procedure for which would be the same as under section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under section 33A has to be decided as if it were a reference under section I 0, the fact that the scheme had been introduced earlier than the reference to arbitration under section 10, does not bar• an application under section 33A in the circumsitances we have explained.\n\nWe thus come to the conclusion (I) that non-payment of wages in the circumstances of this case amounts to an alter11:tion in the conditions of service, (2) the fact that the scheme was ill'troduced before the reference under section I 0 was made does not bar an application under section 33A, and (~) that the Tribmal was .iustified in coming to the conclusion that this alter&tion in the conditions of service could not have been made without notice under section 9A.\n\nThe result is 1hat all the appeals are dismissed. There will be no order as to costs.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 98, "entities": [{"text": "HINDUSTAN LEVER LTD", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN LEVER LTD", "offset_not_found": false}}, {"text": "RAM MOHAN RAY & ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "RAM MOHAN RAY & ORS", "offset_not_found": false}}, {"text": "March 1, 1973", "label": "DATE", "start_char": 68, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "(With cannected appeal) March 1, 1973\n\n(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAID!ALINGAM JJ.)"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 84, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. 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Tarkunde, Jitendra Sharma and Janardari Sharma, for\n\nthe Respondent.", "canonical_name": "litendra Sharma"}}, {"text": "Janardari Sharma", "label": "LAWYER", "start_char": 9132, "end_char": 9148, "source": "ner", "metadata": {"in_sentence": "A V. M. Tarkunde, Jitendra Sharma and Janardari Sharma, for\n\nthe Respondent."}}, {"text": "ALAGIRISW AMI", "label": "JUDGE", "start_char": 9216, "end_char": 9229, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Couvt was delivered by\n\nALAGIRISW AMI; J .-The first batch of appeals are by the Hindustan Lever Ltd. (hereinafter called the Employer) and Civil Appeal No."}}, {"text": "Hindustan Lever Ltd.", "label": "ORG", "start_char": 9273, "end_char": 9293, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Couvt was delivered by\n\nALAGIRISW AMI; J .-The first batch of appeals are by the Hindustan Lever Ltd. (hereinafter called the Employer) and Civil Appeal No."}}, {"text": "Calcutta", "label": "GPE", "start_char": 9429, "end_char": 9437, "source": "ner", "metadata": {"in_sentence": "1759 of 1971 is by the Mazdoor Sabha of the workers of the same employer in its Calcutta Branch."}}, {"text": "6-9-66", "label": "DATE", "start_char": 9690, "end_char": 9696, "source": "ner", "metadata": {"in_sentence": "From 6-9-66 the Company reorganised this marketing organisatioi:i into two divisions, the Main Lines Division and the Speciality Lines Division."}}, {"text": "30-9-66", "label": "DATE", "start_char": 9834, "end_char": 9841, "source": "ner", "metadata": {"in_sentence": "On 30-9-66 the Government of West Bengal referred to the Third Industrial Tribunal the following question for adjudication :\n\n\"Is the human rationlilisation as a measure of economic reorganisation of the Company reflected through job-integration that have either been effected or proposed to be effected justified ?"}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 9846, "end_char": 9871, "source": "ner", "metadata": {"in_sentence": "On 30-9-66 the Government of West Bengal referred to the Third Industrial Tribunal the following question for adjudication :\n\n\"Is the human rationlilisation as a measure of economic reorganisation of the Company reflected through job-integration that have either been effected or proposed to be effected justified ?"}}, {"text": "Third Industrial Tribunal", "label": "COURT", "start_char": 9888, "end_char": 9913, "source": "ner", "metadata": {"in_sentence": "On 30-9-66 the Government of West Bengal referred to the Third Industrial Tribunal the following question for adjudication :\n\n\"Is the human rationlilisation as a measure of economic reorganisation of the Company reflected through job-integration that have either been effected or proposed to be effected justified ?"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 10291, "end_char": 10314, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "23-3-1967", "label": "DATE", "start_char": 10579, "end_char": 10588, "source": "ner", "metadata": {"in_sentence": "the workers and passed its award on 23-3-1967."}}, {"text": "11-8-69", "label": "DATE", "start_char": 10720, "end_char": 10727, "source": "ner", "metadata": {"in_sentence": "The main reference was finally disposed of on 11-8-69 by the same Tribunal holding in favour of the employer and the workers have, therefore, filed Civil Appeal No."}}, {"text": "section 33A", "label": "PROVISION", "start_char": 11350, "end_char": 11361, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 11369, "end_char": 11392, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Schedule IV of the Industrial Disputes Act", "label": "STATUTE", "start_char": 11689, "end_char": 11731, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 12392, "end_char": 12400, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkunde appearing on behalf of the workers in the appeal filed by them in C.A. No."}}, {"text": "section 9A", "label": "PROVISION", "start_char": 12872, "end_char": 12882, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 13080, "end_char": 13091, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 9A", "label": "PROVISION", "start_char": 13895, "end_char": 13905, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 13913, "end_char": 13936, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 33A", "label": "PROVISION", "start_char": 14663, "end_char": 14674, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 14870, "end_char": 14880, "source": "regex", "metadata": {"statute": null}}, {"text": "IVth Schedule to the Act", "label": "STATUTE", 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"source": "ner", "metadata": {"in_sentence": "After referring to such instances the Tribunal has held tha!I in certain cases a system of joint selling of products of the three divisions by the same salesmen through Sales Vans in several markets in India was adopted."}}, {"text": "Parry & Co.", "label": "ORG", "start_char": 23877, "end_char": 23888, "source": "ner", "metadata": {"in_sentence": "The Tribunal following the decision of this Court in Parry & Co. case held that the employer has the right to decide the staff complement and to fill only such jobs as continued to exist and not automatically replace every individual."}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 24439, "end_char": 24450, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 24666, "end_char": 24676, "source": "regex", "metadata": {"statute": null}}, {"text": "Labour Appell:rte Tribunal of India", "label": "COURT", "start_char": 24756, "end_char": 24791, "source": "ner", "metadata": {"in_sentence": "1) the Labour Appell:rte Tribunal of India held that the increase in the weight of bags to be carried from 1 cwt to 1 t cwt was a change in !"}}, {"text": "section 9A", "label": "PROVISION", "start_char": 25541, "end_char": 25551, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A and\n\n33", "label": "PROVISION", "start_char": 26484, "end_char": 26502, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 26720, "end_char": 26729, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 27458, "end_char": 27468, "source": "regex", "metadata": {"statute": null}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 27581, "end_char": 27586, "source": "ner", "metadata": {"in_sentence": "therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on bhalf of the employer that in view of ithe very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of section 9A and othe mere faot that a formal notice was not given under section 9A would not make the reorganisation scheme not valid.", "canonical_name": "Gupte"}}, {"text": "section 9A", "label": "PROVISION", "start_char": 27760, "end_char": 27770, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 27831, "end_char": 27841, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 28257, "end_char": 28267, "source": "regex", "metadata": {"statute": null}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 28333, "end_char": 28348, "source": "regex", "metadata": {"statute": null}}, {"text": "North Brooke Jute Co.\n\nLtd.", "label": "ORG", "start_char": 28393, "end_char": 28420, "source": "ner", "metadata": {"in_sentence": "But it was of the opinion that this right of 1he employer is subject to the limitations contained in section 9A. It specifically considered the applicabfili1y of item 10 of the Fourth Schedule to the Act and relying upon the decision in North Brooke Jute Co.\n\nLtd. (1) held that no schenie of rationalisation could be given effect to if it was not preceded by a notice under section 9A. It did not c<msider it necessary to give a final decision regarding the legality or otherwise of the scheme introduced by the company."}}, {"text": "section 9A", "label": "PROVISION", "start_char": 28531, "end_char": 28541, "source": "regex", "metadata": {"statute": null}}, {"text": "[1960) 3 S.C.R. 364", "label": "CASE_CITATION", "start_char": 28936, "end_char": 28955, "source": "regex", "metadata": {}}, {"text": "section 10", "label": "PROVISION", "start_char": 30097, "end_char": 30107, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 30228, "end_char": 30239, "source": "regex", "metadata": {"statute": null}}, {"text": "5th or 6th of September", "label": "DATE", "start_char": 30330, "end_char": 30353, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte appearing for the employer contended relying on the decision in the case of North Brook Jute Co, Ltd. v. Their Workmen (supra) that the 1.1lteration .of the conditions of service in •this case, even 1f it should be held that non-payment of wages amounted to alte.ration of conditions of service, was made not when a reference under section 10 was pending but that •the reference itself having been made after the reoganisation, no application could be made under section 33A. Technically no doubt this contention is correct because the scheme was introduced on the 5th or 6th of September and the reference was made on 30th of Sptcmber."}}, {"text": "30th of Sptcmber", "label": "DATE", "start_char": 30384, "end_char": 30400, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte appearing for the employer contended relying on the decision in the case of North Brook Jute Co, Ltd. v. Their Workmen (supra) that the 1.1lteration .of the conditions of service in •this case, even 1f it should be held that non-payment of wages amounted to alte.ration of conditions of service, was made not when a reference under section 10 was pending but that •the reference itself having been made after the reoganisation, no application could be made under section 33A. Technically no doubt this contention is correct because the scheme was introduced on the 5th or 6th of September and the reference was made on 30th of Sptcmber."}}, {"text": "section 33A", "label": "PROVISION", "start_char": 30814, "end_char": 30825, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C", "label": "PROVISION", "start_char": 30888, "end_char": 30899, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 31652, "end_char": 31662, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 32539, "end_char": 32549, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 32866, "end_char": 32877, "source": "regex", "metadata": {"statute": null}}, {"text": "Gup", "label": "OTHER_PERSON", "start_char": 32922, "end_char": 32925, "source": "ner", "metadata": {"in_sentence": "It follows that the refusal to pay their wages amounted to alteration of conditioJ:!s of service and the applications were, therefore, rightly made under section 33A.\n\nEven apart from thllt it was urged by Mr. Gup, te relying upon the decision in National Coal Co. v. L. P. Dave( ) that non-payment of wages was neither an alteration in the conditions of service nor is it a punisluflent and as such ca:nnot come within the mischief of section 33 of the Act.", "canonical_name": "Gupte"}}, {"text": "section 33", "label": "PROVISION", "start_char": 33148, "end_char": 33158, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna High Court", "label": "COURT", "start_char": 33175, "end_char": 33191, "source": "ner", "metadata": {"in_sentence": "The Patna High Court relied also for its decision on the decision in Shama Biicuit Co. v.\n\nTheir Workmen(')."}}, {"text": "Payment of Wages Act", "label": "STATUTE", "start_char": 33552, "end_char": 33572, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 33691, "end_char": 33711, "source": "ner", "metadata": {"in_sentence": "the decision of the Allahabad High Court in Ram Nath Koeri v.Lakshmi Devi Sugar Mills. &"}}, {"text": "section 33C", "label": "PROVISION", "start_char": 34286, "end_char": 34297, "source": "regex", "metadata": {"linked_statute_text": "Payment of Wages Act", "statute": "Payment of Wages Act"}}, {"text": "section 9A", "label": "PROVISION", "start_char": 34486, "end_char": 34496, "source": "regex", "metadata": {"linked_statute_text": "Payment of Wages Act", "statute": "Payment of Wages Act"}}, {"text": "section 33C", "label": "PROVISION", "start_char": 35413, "end_char": 35424, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C", "label": "PROVISION", "start_char": 35564, "end_char": 35575, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 35628, "end_char": 35639, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 35802, "end_char": 35813, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 35970, "end_char": 35980, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 36017, "end_char": 36028, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 36351, "end_char": 36362, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9A", "label": "PROVISION", "start_char": 36528, "end_char": 36538, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_637_648_EN", "year": 1973, "text": "SHADI LAL GUPTA v.\n\nSTATE OF PUNJAB\n\nMarch 7, l 973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A.\n\nVAIDIALHiGAM JJ.J\n\nPunjab Civil Service (Punishment and Appeal) Rules 1952-Rule 8- Appellant charge sheeted for disobedience to superiors and ftr negligence of duty-Personal hearing was given' to him but no copy of the enquiry officer's report given 1-0 appellant-whether the Rule was ritiated and the\n\nprinciple of natural justice violated.\n\nAppellant was a Clerk in the Treasury at Ludhiana. He filod a suit for three different reliefs to which only one that now survives is regarding the order withholding his increment for one year with cumulati\\e effect. On\n\nI(}ll-61 he was charged sheeted on the ground that he was disobedient to his superior and negligent in the discharge of his duties and J. few specific instances of his carelessness and negligence were mentioned in the charge sheet.\n\nThereafter the appe11ant submitted. his explanation and a personal hearing was also given to him by the authorities.\n\nThe appellant com 4 plained that he was not given any opportunity to adduce any evidence in defence and no prosecution witnesses were examined in his presence. The contentions of the appelant are that (i) by the failure to give him a copy of the report df the Treasury Officer who made a local inquiry, and taking it into consideration behind his back, he has been prejudiced and (ii) Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules 1952 has been contravened.\n\nRule 8 provides, inter alia, that no order for censurei \\\\\"ithholding of increments, recovery from pay of any pecuniary Joss to the Govt., shall be passed imposing a penalty on a Govt. Servant, unless he has been given an adequate opportunity of making any representation that he may desire to make, and such representation has been taken into consideratign.\n\nDismissing the appeal.\n\nHELD : (i) Under Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules 1952, the only requrement is that the officer concerned should be given an adequate opportunity of making any representation th.at he may desire to make.\n\nThere is no provision for examination of witnesses, cross examination of witnesses and furnishing a copy of the report of the enquiry officer etc.\n\nHe need not be told about the punishment which is sought to be imposed on him, either at the time the chargesheet was .served on him or at any other stage. In the present case, these \\Vas, no failure to 'foilow the relevant rules, which only require that the officer concerned should have an opportunity of making a. repreSentation in respect of the chares made against him and the officer. coricerned had an opportunity to 1nake a representation and his representation was considered by tlie authorities in taking Jiscplinary action against him.\n\n(ii) The rules of natural justice have also not been Yiolated in the present case.\n\nThe requirements of the rules of natural justice arc :-(a) the person accµsed should know the nature of the accusation made; (b) that he should be given an opportu\"ity to state his case; and (iii) that the tribunal should act in good faith Byrne & another v. Kinematograp/1 Rentery Society Ltd .. [1958) A.E.R. 579. referred to. [646 ABl\n\n(iii) In any proceedings even by a domestic tribunal. the rules of natural justice would have to be observed; but the principles to be applied would depend upon the circuinstances of each case.\n\n(iv) };-, the present case, the principle of natural justice had not been violated because the appellant \\Vas not given an opportunity to make a representation in respect of the Treasury Officer's report.\n\nWhen the authorities \\\\'anted a local enquiry to be made, it \\\\.-as with a view to check up with records the representation made by the appellant. The report does not ac!J one single instance more than what is already found in the allegations.\n\nIf the report had contained anv material extraneous to the charges aga;:ist the appellant, then only he could be said to have been prejudil.-ed.\n\nThe report merely sets up the evidence in support of the allegations There'fore, the appellant has not been prejudiced by the\n\nTrasury Officer's report being taken into consideration before the order of punishn1ent was passed against the petitoner. [6..t6 H: 647 A-BJ\n\nCIVIL APPELATE JURISDICTION: Civil Appeal No. 1527 of 1971.\n\nAppeal by special leave frctm the judgment and order dated October 12. 1970 ol' the Punjab and Haryana High Court at Chandigarh in Regular S.A. No. 1370 of 1969.\n\nG. L. Sanghi, for the appellant.\n\nV. C. Mahajan and R. N. Sachthey, for the Respondent.\n\nThe Judgment of the Court was delivered by-\n\nALAGIRJSWAMI. J.-This appeal is by way of special leave against the judgment of the High Court of Punjab and Haryana dismissing the Second Appeal filed by the appellant.\n\nHe was a clerk in the Treasury at Ludhiana. He filed the suit out of which this appeal arises for three different reliefs out of which the only one that now survives is regarding the order withholding his increment for one year with cumulative effect.\n\nThe sole point raised on behalf. of the appellant before the High Court was overruled by it on the basis of the full bench decision of the High Cour>t in Malvinderjit Singh v. The State of Punjab & Ors.(') which overruled the decision in Kal; van Singh\n\nv. The State of Punjab(').\n\nThis is perhaps the first case that comes to this Court in the matter of a minor punishment.\n\nThe appellant relied upon the decision of this Court in B. D. Gupta v. State of Haryana('), the facts c[ which art ra'lher complicated, and are unnecessary for the purpose of this case. One of the points that arose in that case was regarding the mingr punishment of censure, though it was an incidental one in an appeal which involved a much more important question. Itwas held that the show cause notice in that case did\n\n(I) (1970) 2 I.LR. (Punjab) 580.\n\n(3) A.LR. 1972 (S.C.) 2472.\n\n(2) (1967) 21.L.R. (Punjab) 471.\n\n~ ( B\n\n• c ·~\n\nG •\n\nnot give the appellant (the aggrieved Government servant) any real opportunity to defend himself. That is not the case here. . . - The charge-sheet served on the appellant on 10-11-61 was. to the follow.ing effect : .\n\n\"(i) That you have been careless and negligent in the performance of your duties at Sub-Treasury, Sirhind, as per concrete instances mentioned in the enclosed state- . ment bf allegations. · (ii) That-you have been disobedient to the Assistant Treasury Officer, Sirhind.\" and an elaborate statement of allegations was enclosed alongwith; the charge-sheet, which is set out below :\n\nSTATEMENT OF ALLEGATIONS \"While Shri Shadi, Lal Gupta, Clerk, Sangrur Treasury, was working as Routine Clerk, Sifhind Sub-Trca- sury, he had been disobedient to the Assistant Treasury Officer, Sirhirid and negligent in the discharge of his duties, and a few instances of his carelessness, negligence and disobedience are given below :-\n\n1. Shri Shadi Lal Gupta was allotted the work of\n\npassing Deposit Repayment Orders issued by the Courts and it was found vide some instances quoted below that he calculated wrong balances in the Deposit Receipt Registers which were likely to . cause over-payment in certain cases ; md refusal to make payment in other cases at some later stage.\n\n(a) .While passing DRO No. 17, .dated 15th November, 1960 on 18-11-1960 the balancewas calculated by him as Rs. 327 .60 in- . stead of Rs. 317.60 N.P. ·\n\n(b) While passing DRO 15 dated 10-11-1960\n\non 25th November, 1960, the balance was calculated by'him as Rs. 56.44 N.P. instead of Rs. 56.33 N.P. (c)\n\n(d)\n\nIn the said DRO 15 dated 10-11-1960 passed on 25-11-1960 the amount to be paid was entered by him as Rs. 7 4 /- only instead of Rs. 74.11 N.P.\n\nWhile passing payment of Rs. 131.06 N.P. in respect of DRO 17 dated 15-11-1960 on 18-11-1960 the tialance in the deposit receipt Register was calculated by him as Rs. 595.23 N.P. instead of Rs. 495.23 N.P'.\n\n(e) In passing payment of Rs. 28.71 N.P. relating to DRO 23 dated 5-12-1960 on 7-12-1960 the balance was worked out by him as Rs. '261.71 N.P. instead of Rs. 281.71 N.P.\n\n(f) The passing payment of.Rs. 1562.70 N.P.\n\nin respect of DRO 124 dated 8-11-1960 repaid on 9-11-1960 the actual payment was shown as Rs. 1600/- in .the deposit receipt register.\n\n2. He passed cheque No. 335553 dated 13-11-1960\n\non 15-11-1960 withou1 verifying the particulars of the cheque in question as the cross eµtry of the cheque was wrong and he did not point it out, Similarly cheque No. 395202, dated 21-11-1960 for Rs. 126/- was passed on 24-11-1960 by him without verifying the identifier of the payee, as neither he asked/ him to produce his half of the P.P.O. quoted by him in his identification nor did he confirm the fact from the Sub-Treasury record.\n\n3. I.nward letter No. 419 and 430 were received from the Deputy Commissioner, Patiala on 6-12-1960 which remained undisposed of b\\Y him till 3-1-1961.\n\nLetter No. 695, dated 14-11-1960 regarding verification of credits received from the N.T. (Recovery) was not disposed of by him till 3-1-1961.\n\nHe also did not diarise them.\n\n4. On 30-12-1960, the Assistant Treasury Officer asked him verbally to attend office on 31-12-1960 to clear arrears on his seat. He refused to do so.\n\nThereon he gave him written orders to that effect and he. refused to note them. Again he sked him to record his refusal in black and white but he declined even to do so.\n\n5. He refused to write-up the Assistant Treasury Officer's set of Double Lock registers on his ordering him to do so as is evidenced by the fact that when he asked him even in writing on 13-1-1961, after obtaining Treasury Officer Patiala's orders 10 write up his set of double lock registers, he stated in his application dated 16-1-1961 that he had no objection to carry out the work under protest for some days upto the decision of the Treasury Officer, Patiala.\n\nThe carelessness, negligence and disobedience of the official has rendered him liable to disciplinary action.\"\n\nThereafter the appellant seems to have submitted his explanation and the then Deputy Secretary, Shri Banwari Lal seems also to have given him a personal hearing.\n\nThe appellant complained that he was not given any opportunity to adduce any evidence in defence and no prosecution witnesses were examined in his presence.\n\nShri Banwari Lal seems to have fch it necessary to have a local enquiry and, therefore, asked the Treasury Officer to send\n\na report after a local enquiry.\n\nOne of the complaints of the appellant was that these proceedings were started because one Yash Pa} Kaura, the Treasury Officer was inimically disposed towardf. him.\n\nBut we consider that point irrelevant l:lecause how the proceedings came to be initiated would not in any way affected the validity or otherwise of the disciplinary proceedings.\n\nThe Treasury Officer who sell'! up the report, after the local enquiry, was another person.\n\nTwo contentions were urged on behalf of the appellant : (I) that by the failure to give him copy of the report of the Treasury Officer and taking it into consideration behind his back, he has been prejudiced; and\n\n( 2) Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules 1952 has been contravened,\n\nl'nder Rule 4 of the above rules the following penalties may,. for good and sufficient reason be imposed :\n\n\\i) Censure;\n\n(ii) Withholding of increments or promotion, including s1opp3ge at an efficiency bar, if any;\n\n(iii)\n\n(iv)\n\nReduction to a lower post or time-scale, or to a lower stage in a time scale; Recovery from pay of the whole or part ci any pecuniary loss caused to Government by neghgence of breach or order;\n\n( v) uspension;\n\n(vi) Removal from the Civil Service of the Government which does not disqualify from future employment.\n\n(vii) Dismissals from the Civil Service of the Government which ordinarily disqualifies from future employment;\n\nRule 8 is to the following effect :\n\n\"8. Without prejudice to the provisions of Rule 7. no order under clauses (i), (ii), or (iv) of Rule 4 shall be passed imposing a penalty on a Government servant, .unless he has been given an adequate opportunity or )naking any representation that he may desire to make, and such representation has been taken into consideration.\"\n\nThere are two provisos to the rule which it is unnecessary to set out for •the purposes of this case.\n\nUnder this rule the only requirement is that the officer concerned should be give_n an adequate opportunity of making any representation that he may desire to make. There is no provision for examination of witnesses, cross examination of witnesses and furnishing a copy of the report, all requirements which we find in Rule 7. Therefore, in this case if the punishment had been imposed after the charge-sheet had been served on the appellant and he had made his representation and also been personally heard by Banwari Lal, it would have been perfectly legal.\n\nRule 8 does not require anything more than that the allegations on the basis of which the officer concerned 1s charged should be made known to him and he should be given an opportunity to make any representation with regard to them.\n\nHe need not be told the punishment which is sought to be imposed on him, either at the time tile chargesheet is served on him or any other stage. There is no question of his being given an opportunity a second time after the enquiry is. completed in respect of the\n\npunishmnt sought to be imposed on him unlike in a case covered by Rule 7.\n\nRule 7 of these Rules deals with cases whi!re the major punishment of dismissal, removal or reduction in rank are proposed to be imposed and sub-rule 6 of that rule specifically provides that fa such a case after the pµnishing authority has arrived at a provisional conclusion in regard to the penalty to 1?e imposed, the accused officer shall be supplied with a copy of the report of the enquiry1ng authority and be c.illed upon to show cause against the particular penalty proposed to be infiicted on him. The words\n\n\"without prejudice to the provisions of rule 7\" occurring at the beginning of. Rule 8 are sought to be taken advantage of to contend that even in the case of minor punishments referred to in that rule, of censure, withholding of increments and recovery from pay, an opportunity should be given to show cause against the punishment proposed to be imposed. Those words do not fit in in the context and cannot mean that in a case of minor punishpient not only the -provisions of rule 8 but also the provisions of rule 7 should be followed. The rules must be interpreted in their proper setting and if so interpreted, those words would not bear the interpretation\n\nsought to be placed on them. The provisions oJ' rule 7 are necessitated by the provisions of Article 3 U ( 2) of the Constitution.\n\nAs far as other punishments are concerned, the only right which a Government servant is entitled to is that the action proposed should be in accordance with the rules made under the proviso to Article 309.\n\nThat rule, rule 8 does not contemplate anything more than an adequate opportunity of making a representation.\n\nWe are, therefore, unable to accept this contention.\n\nWe shall now consider some of the decisions cited befo_re us.\n\nIt is first necessary to refer to the decision in Ka/Jan Singh v. The State of Punjab (supra) which has been overruled by the Full Bench in Malvinderjit Singh v. The State of Punjab & Anr. (supra). The High Court was not quite right in dismissing the appellant's appeal on the basis of Malvinderjit Singh's case.\n\nKalyan Singh's case was overruled only as regards the question whether a copy of the report of the Vigilance Department on the\n\nbasis of which proceedings were initiated, should be given to the concerned officer or not. We are not cqncerned with that question in this case. But the Full Bench also dealt with the question of the procedure to be adopted in the case of imposition of minor punishments and it held :\n\n\"(a) that for the minor punishment to _public servants for their J)lisconduct the autltorities have designedly provided for a simple and summary prqcec!t1re of representations only, untrammalled by any furnishing of copies of documents or material on which the allegations are based or the right of cross-examination or the right of leading defence evidence which are all provided in the case of enquiries qua major punishments. The furnishing of doc.uments as provided for in rules 7 ancl 9 of the Punjab Civil Services (Punishment and Appeal)\n\nRul\\:S, 1952, stands excluded under rule 8.\n\nBasically the right to secure copies of documellts or other specific material is a r.roce<jural right which accrues if it is so granted in express terms by a'\\statute. Nobody can be said to have any inherent right~ secure copies or to have any access to confidential State records.\n\nSuch a right can only be a creature of a statute. On an overall view of the specific language of rule 8 of the Rules, its setting in the relevant rules and the scope and ambit thereof,\n\nall collectively tend to negative .any such procedural right.\n\n(b!) That the words 'adequate opportunity' in the context of rule 8 of the Rules may mean_no more than an adequacy of time to make a representation which alone is guaranteed by rule 8. It is possible to place\n\nsuch a limited meaning upon these words, but even if a more liberal construction is placed, these words cannot be elongated enough to cn:>ate a specific procedural right to secure copies and materials. Moreover, the adequacy of opportunity to make reprsentation under rule 8 cannot possibly imply a larger right than what has been judicially interpreted 10 be the basic requirements of a reasonable opportunity of being heard or to show cause again9t specific allegations.\n\n( c J That under rule 8 of the Rules, unlike rule 7, the employee has only one opportunity of making a representation. No enquiry need be conducted as under rule 7 and no evidence need be recorded in the presence of the employee. .It is open to the punishing authority to collect any material either itself or through any specialised a2ency like the Vigilance Department to acquaint itself with the real facts in order to take a decision whether any action is to b~ taken against 'the employe.e,\n\nand, if so, what action is to be taken. But if such an enquiry is made and material is collected on the basis of which a prejudicial view is taken against the employee and he is chargesheeted under rule 8 with a view to impose one of the three minor punishments, then the employee is entitled to an adequate opportunity to make a representation to show that ( 1) he is not guilty and\n\n(2) that \"he proposed punishment should not be imposed on him, being excessive. It would be impossible for an employee to make such a representation unless it is made known to him the material on the basis of which it has been decided that he is gnilty and that the particular punishment be imposed on him ...... Without being supplied with such a material he cannot make an effective and real representation.\n\nThe only case in which the punishing authority would be justified in withholding such a material, would be where under the second proviso to rule 8. sufficient reasons are recorded in writin~ to the effect that it is not practicable to observe the requirements of the rule and .that this can be done without injustice to the officer concerned. ( d) Thait the words 'adequate opportunity in the context of rule 8 of the Rules connote \"reasonably suffi cient opportunity\" in every respect, to make a representation against the action sought to be taken against the employee. Before an employee can be said to have had this 'adequate opportunity', the employee has to be told the charges of misconduct and then he must have an opportunity tci be heard in answer to those charges.\"\n\nA The ase in R. D. Raw a v. State ( 1) was also noticed in the above Full Bench decision. In that case two charges were made against Rawal and one of the c)).arges was held not established. Another charge was on the basis that certain action takcm by him was ma/afide.\n\nThe ma/afides were held not estaW.ished but the impugned order withholding one increment was passed on the grow1d B that some lapses on his part had resulted in excess payment t6 a contractor. This order was set aside by the High Court. That decision could be explaine<.l on the basis that the officer concerned did not have an opportunity ol showing that there was no lapse on his part.\n\nWe may also refer to the decision in Roop Lal v. State of C Punjab(') of the Punjab and Haryana High Court.\n\nThe ratio of decision in that case is stated as follows :\n\n\"In the present case if the procedure under rule 7 of the Rules had been. followed and instead of a ma.ior punishment a minor punishment had been inflicted, no fault could be found therewith but if no enquiry was held as envisaged under rule 7 ibid and the minor punishment was proposed to be inflicted under rule 8 thereof, then the procedure prescribed under rule 8 had to be fo.llowed.\" We lhus come to the conchl$ion that there was no failure in this case to follow the relevant rules, which, as we have already indicated, only require that the officer concerned should have an opportunity of making a representation in respt of the charges made against him. This leaves the question of whe1.\"'<ler any prin- .ciples of natural justice have bjeen violated in this case.\n\nThe r)lles of natural justice would undoubtedly have to be observed in any proceedings even by a domestic tribunal. But the principles of mrtural justice to be applied would depend upon the circumstances of each case. In Suresh v. Kera/a U11ivmll)'( 8) this Court pointed out that the question whether the requirements of natural justice have been met by the procedure adopted must depend to a great exten~ on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. After referring to the decisions in Russel v.Duke of Norfolk & Ors.,(') Local Government Board v. Alridge(1) and De Verteuil v. Knaggs &Anr.(•) this Court also referred to the observations of Lord Harman, J. in Byme & Anr. v. Kinematograph Renters Satiety Ltd.(') to the following effect :\n\n(I) 1967 C.L.J. 439.\n\n(3) [1969] l S.C.R. 3i7.\n\n(5) [19151A.C.120.\n\n(7) [1958] All B.R .. 579 ..\n\n9~L761Sup.C.IJ:73\n\n(2) 1971 (I) S.L.R. 41.\n\n(4) 19491 All E.R. 108 at Ill.\n\n(61 [1918] A.C. 557.\n\n646 SUPREME COURT RBPOR'l'.S [1973) 3 S, C, ll.\n\n\"What, then, are the ruirements of natural justice in a case of this kind 7 FIISt, I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to s~ his case; and thirdly, of course, that the tn'bunal.should act in good faith. I do not think that there really is anything more.\"\n\nand went on to lay down the same principle in its own words :\n\n\"Suffice it to say that in the case l:lefore us there was a fair inquiry against the appeUant; the officer appointed to inquire was an impartial person; he cannot be said to have been biassed against the appellant; the charge against the appellant was made known to him before the commencemQ!lt of the inquiry; the wi'lnesses who gave evidence against him were examined in his presence and he was allowed to cross-examine them and lastly he was given every opportunity to present his case before the Inquiry Officer. Hence we see no merit in the conte\\lltion that there was any breach of the principles of natural justice. It is true that the Vice-Chancellor did not make\n\navailaQle to the appellant a c91iy of the eport submitted by the Inquiry Officer. Admittedly the appellant did not ask for a copy of the report. There is no rule requiring the Vice-Chancellor to provide the appellant with a copy o( the report of the Inquiry Officer before he was called upon to make his representation against the provisional decision taken by him. If the appellant felt any difficulty in making his representation without looking into the report of the Inquiry Officer, he could have very well asked for a copy of that report. His present grieva.nce appears to be an after thought and we !!CC no subs tance in it.\" ·\n\nAs we have indicated earlier, if Shri Banwari Lal had impi>sed the punishment after he had given a hearing to the appellant, the order would have been perfectly legal and it could not have been . said that any principle of natural justice had been violated. The criteria indica1ed above would have been satisfied. But what is urged before us in this case is that as the report of the Treasury Officer, which we have already referred to earlier, was taken into consideration without showing it to the appellant he has been seriously prejudiced and the principles of natural justice have been violated in so far as he has not had an opportunity of making his representation in respect of 1hat report. We find no substance in this ci>ntention. When Shri Banwari Lal wanted a local enquiry to be made he apparently wanted the representations made by the\n\nanpellant to be checked up wi1h the records and that is what has\n\nbeen done as is clear from a comparison of the allegations on the basis oi which the chargesheet was served on the petitioner, and the report of the Treasury Officer. We have carefully gone through it and it does not add one single instance more than what is already found in the allegations. It merely sets out the evidence in support of these allegations. We are, therefore, of the opinion that the appellant has not been in any w a.y prejudiced by the Treasury Officer's report being taken into consideration before the order of punishment was passed against the petitioner. If before the Treasury Officer had sent his report he had associated the appellant in the enquiry he held it would not have been necessary to give him a copy of the report he sent. I! the report had contained any material extraneous to the charges against the appellant, or any thing in addition to what is found in the original allegations against him then only he could be said to have been prejudiced. In the decision of the Judicial Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya(') noticed in Suresh v. Kera/a University (Supra) a report ma.de by the Board, which held the preliminary inquiry, which was highly prejudicial to Kanda had been placed in the hands of the officer who held the formal enquiry was not made available to Kanda.\n\nThat report was likely to have prejudiced the Inquiry' Officer and the Judicial Committee held that the enquiry was not fair. There is no question in this case of the Treasury Officer's report having prejudiced the punishing officer, Mr. D. D. Sharma. The application of the principles of natural justice is not a question of observance of a formula or a mere technicality. In essence it is meant to assure that the party concerned has an opportunity of being heard, the principle of audl alteram partam. Whether in any parti cular case it has been violated will depend on the facts and circumstances of that case. It is not to be considered that unless all the procedure of the courts are observed it would mean failure to observe the principles of natural justice. We are of the opinion that no principles of natural justice have been violated in this case.\n\nWe' think it useful in the circumstances of this case to refer to the observations made by this Court in Suresh's case to the effect :\n\n'There seems to be an erroneous impression in cer. tain quarters evidently influenced by the provisions in An. 311 of the Constitution particularly as Ibey stood\n\n(I) [1962] A.C. 332.\n\nbefore the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show cause notice is provided by law from that it does not follow that a copy of the report on the basis of which the show cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter.\"\n\nIn the result this appeal is dismissed.\n\ns.c.\n\nAppeal dismissed", "total_entities": 36, "entities": [{"text": "SHADI LAL GUPTA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "Shadi, Lal Gupta", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 20, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "March 7, l 973", "label": "DATE", "start_char": 37, "end_char": 51, "source": "ner", "metadata": {"in_sentence": "SHADI LAL GUPTA v.\n\nSTATE OF PUNJAB\n\nMarch 7, l 973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A.\n\nVAIDIALHiGAM JJ.J\n\nPunjab Civil Service (Punishment and Appeal) Rules 1952-Rule 8- Appellant charge sheeted for disobedience to superiors and ftr negligence of duty-Personal hearing was given' to him but no copy of the enquiry officer's report given 1-0 appellant-whether the Rule was ritiated and the\n\nprinciple of natural justice violated."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 54, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 71, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Ludhiana", "label": "GPE", "start_char": 476, "end_char": 484, "source": "ner", "metadata": {"in_sentence": "Appellant was a Clerk in the Treasury at Ludhiana."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 4511, "end_char": 4523, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, for the appellant."}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 4545, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and R. N. Sachthey, for the Respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4563, "end_char": 4577, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and R. N. Sachthey, for the Respondent."}}, {"text": "ALAGIRJSWAMI", "label": "JUDGE", "start_char": 4645, "end_char": 4657, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by-\n\nALAGIRJSWAMI."}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 4729, "end_char": 4761, "source": "ner", "metadata": {"in_sentence": "J.-This appeal is by way of special leave against the judgment of the High Court of Punjab and Haryana dismissing the Second Appeal filed by the appellant."}}, {"text": "Sirhind", "label": "GPE", "start_char": 6466, "end_char": 6473, "source": "ner", "metadata": {"in_sentence": "ii) That-you have been disobedient to the Assistant Treasury Officer, Sirhind.\""}}, {"text": "Shadi, Lal Gupta", "label": "LAWYER", "start_char": 6623, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "and an elaborate statement of allegations was enclosed alongwith; the charge-sheet, which is set out below :\n\nSTATEMENT OF ALLEGATIONS \"While Shri Shadi, Lal Gupta, Clerk, Sangrur Treasury, was working as Routine Clerk, Sifhind Sub-Trca- sury, he had been disobedient to the Assistant Treasury Officer, Sirhirid and negligent in the discharge of his duties, and a few instances of his carelessness, negligence and disobedience are given below :-\n\n1.", "canonical_name": "Shadi, Lal Gupta"}}, {"text": "Shadi Lal Gupta", "label": "PETITIONER", "start_char": 6931, "end_char": 6946, "source": "ner", "metadata": {"in_sentence": "Shri Shadi Lal Gupta was allotted the work of\n\npassing Deposit Repayment Orders issued by the Courts and it was found vide some instances quoted below that he calculated wrong balances in the Deposit Receipt Registers which were likely to .", "canonical_name": "Shadi, Lal Gupta"}}, {"text": "Patiala", "label": "GPE", "start_char": 8848, "end_char": 8855, "source": "ner", "metadata": {"in_sentence": "419 and 430 were received from the Deputy Commissioner, Patiala on 6-12-1960 which remained undisposed of b\\Y him till 3-1-1961."}}, {"text": "6-12-1960", "label": "DATE", "start_char": 8859, "end_char": 8868, "source": "ner", "metadata": {"in_sentence": "419 and 430 were received from the Deputy Commissioner, Patiala on 6-12-1960 which remained undisposed of b\\Y him till 3-1-1961."}}, {"text": "3-1-1961", "label": "DATE", "start_char": 8911, "end_char": 8919, "source": "ner", "metadata": {"in_sentence": "419 and 430 were received from the Deputy Commissioner, Patiala on 6-12-1960 which remained undisposed of b\\Y him till 3-1-1961."}}, {"text": "14-11-1960", "label": "DATE", "start_char": 8944, "end_char": 8954, "source": "ner", "metadata": {"in_sentence": "695, dated 14-11-1960 regarding verification of credits received from the N.T. (Recovery) was not disposed of by him till 3-1-1961."}}, {"text": "30-12-1960", "label": "DATE", "start_char": 9103, "end_char": 9113, "source": "ner", "metadata": {"in_sentence": "On 30-12-1960, the Assistant Treasury Officer asked him verbally to attend office on 31-12-1960 to clear arrears on his seat."}}, {"text": "31-12-1960", "label": "DATE", "start_char": 9185, "end_char": 9195, "source": "ner", "metadata": {"in_sentence": "On 30-12-1960, the Assistant Treasury Officer asked him verbally to attend office on 31-12-1960 to clear arrears on his seat."}}, {"text": "13-1-1961", "label": "DATE", "start_char": 9606, "end_char": 9615, "source": "ner", "metadata": {"in_sentence": "He refused to write-up the Assistant Treasury Officer's set of Double Lock registers on his ordering him to do so as is evidenced by the fact that when he asked him even in writing on 13-1-1961, after obtaining Treasury Officer Patiala's orders 10 write up his set of double lock registers, he stated in his application dated 16-1-1961 that he had no objection to carry out the work under protest for some days upto the decision of the Treasury Officer, Patiala."}}, {"text": "Patiala", "label": "OTHER_PERSON", "start_char": 9650, "end_char": 9657, "source": "ner", "metadata": {"in_sentence": "He refused to write-up the Assistant Treasury Officer's set of Double Lock registers on his ordering him to do so as is evidenced by the fact that when he asked him even in writing on 13-1-1961, after obtaining Treasury Officer Patiala's orders 10 write up his set of double lock registers, he stated in his application dated 16-1-1961 that he had no objection to carry out the work under protest for some days upto the decision of the Treasury Officer, Patiala."}}, {"text": "16-1-1961", "label": "DATE", "start_char": 9748, "end_char": 9757, "source": "ner", "metadata": {"in_sentence": "He refused to write-up the Assistant Treasury Officer's set of Double Lock registers on his ordering him to do so as is evidenced by the fact that when he asked him even in writing on 13-1-1961, after obtaining Treasury Officer Patiala's orders 10 write up his set of double lock registers, he stated in his application dated 16-1-1961 that he had no objection to carry out the work under protest for some days upto the decision of the Treasury Officer, Patiala."}}, {"text": "Banwari Lal", "label": "OTHER_PERSON", "start_char": 10099, "end_char": 10110, "source": "ner", "metadata": {"in_sentence": "Thereafter the appellant seems to have submitted his explanation and the then Deputy Secretary, Shri Banwari Lal seems also to have given him a personal hearing."}}, {"text": "Yash Pa} Kaura", "label": "OTHER_PERSON", "start_char": 10567, "end_char": 10581, "source": "ner", "metadata": {"in_sentence": "One of the complaints of the appellant was that these proceedings were started because one Yash Pa} Kaura, the Treasury Officer was inimically disposed towardf."}}, {"text": "s1", "label": "PROVISION", "start_char": 11405, "end_char": 11407, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 14768, "end_char": 14777, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 309", "label": "PROVISION", "start_char": 15000, "end_char": 15011, "source": "regex", "metadata": {"statute": null}}, {"text": "Malvinderjit Singh", "label": "OTHER_PERSON", "start_char": 15528, "end_char": 15546, "source": "ner", "metadata": {"in_sentence": "The High Court was not quite right in dismissing the appellant's appeal on the basis of Malvinderjit Singh's case."}}, {"text": "Kalyan Singh", "label": "OTHER_PERSON", "start_char": 15556, "end_char": 15568, "source": "ner", "metadata": {"in_sentence": "Kalyan Singh's case was overruled only as regards the question whether a copy of the report of the Vigilance Department on the\n\nbasis of which proceedings were initiated, should be given to the concerned officer or not."}}, {"text": "Rawal", "label": "OTHER_PERSON", "start_char": 19983, "end_char": 19988, "source": "ner", "metadata": {"in_sentence": "In that case two charges were made against Rawal and one of the c)).arges was held not established."}}, {"text": "Harman", "label": "JUDGE", "start_char": 22182, "end_char": 22188, "source": "ner", "metadata": {"in_sentence": "Local Government Board v. Alridge(1) and De Verteuil v. Knaggs &Anr.(•) this Court also referred to the observations of Lord Harman, J. in Byme & Anr."}}, {"text": "Kanda", "label": "OTHER_PERSON", "start_char": 26398, "end_char": 26403, "source": "ner", "metadata": {"in_sentence": "In the decision of the Judicial Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya(') noticed in Suresh v. Kera/a University (Supra) a report ma.de by the Board, which held the preliminary inquiry, which was highly prejudicial to Kanda had been placed in the hands of the officer who held the formal enquiry was not made available to Kanda."}}, {"text": "D. D. Sharma", "label": "OTHER_PERSON", "start_char": 26748, "end_char": 26760, "source": "ner", "metadata": {"in_sentence": "There is no question in this case of the Treasury Officer's report having prejudiced the punishing officer, Mr. D. D. Sharma."}}, {"text": "Suresh", "label": "OTHER_PERSON", "start_char": 27476, "end_char": 27482, "source": "ner", "metadata": {"in_sentence": "We' think it useful in the circumstances of this case to refer to the observations made by this Court in Suresh's case to the effect :\n\n'There seems to be an erroneous impression in cer."}}, {"text": "Ibey", "label": "OTHER_PERSON", "start_char": 27658, "end_char": 27662, "source": "ner", "metadata": {"in_sentence": "311 of the Constitution particularly as Ibey stood\n\n(I) [1962] A.C. 332."}}]}
{"document_id": "1973_3_649_654_EN", "year": 1973, "text": "STATE OF U.P. v.\n\nDYER MEAKIN BREWERIES LTD.\n\nMarch 8, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]\n\nC•ntral Sales Tax Act, 1956, Section 10-A-A&<es.ree registeied ar d•ar<r in Gaziabad-Penalty proceedings lnitiat<d against asseme-Sub- S<qu•nt/y, assessee's registration transferred to Luck111)w-Sales Tax Officer had jurisdiction to impose penalty on assessee even after transfer of regis. tration.\n\nThe assessee was registered as a dealer under the Central Sales Tax Act, 1956. at Ghaziabad. For the relevant asses•\"K!'lt years, he was .Ssessed by the Tax Officer at Ghaz.iabad. The Saleo Tax Officer, Ghaziabad, sub5equently came to know that the assessee had misuse<! some of the 'C' Forms and, therefore, issued a penalty notice u/s 10-A of the Act on January 8, 1960.\n\nDurin11 the pendency of the penalty proceedings, the assessee transferred his registration to Lucknow.\n\nThe Sales Tax Officer, Ghaziabad imposed the penalty on the aasessee for the Disuse of Form 'C'. At the instance of the assessee. the Revisional Authority uoder the Statute referred three questions of law to High Court under section\n\n11 (I) di the U.P. Sales Tax Act, the principal question being whether the Sales Tax Officer, Ghaziabad, had jurisdiction to impose penalty when the registration was transferred to Lucknow.\n\nThe High Court answered the question against the State.\n\nOn appeals by special leave, allowing the appeals,\n\nHELD: Prima facie, the Sales Tax Officer, Ghaziabad was competent to levy the penalty on the assessee.\n\nSection 10-A definitely says that the authority who granted the certificate of registration to an assessee ii one of the authorities competent to levy penalty. Undoubtedly the Sales Tax Officer, Ghaziaba<l, was the authority who granted the certificate of registration to the assessee and that certificate was in force during the relevant assessment years.\n\nEven though after 28-3-1960, 'the date of transfer of registration, he ceased to be the authority competent to grant certificate of registration to the assessee he still had the competence to levy penalty on the assessee in view of the fact, that it was he who had granted certificate of registration to the asaessee.\n\nThe levy of penalty is one of levying tax.\n\nIf the Sales-tax Officer was competent to levy salestax on the assessee in re.•pect of the relevant assessment years, he was equally competent to levy penalty on the asscssee in reapect of the offences committed during these years. [653 DJ\n\nCIVIL APPELLATE JURISDICTJON : Civil Appeals Nos. 1655 and 1656 of 1970.\n\nAppeals bv special leave from !he judgmem: and order dated l st January 1970 of the Allahabad High Court in Sales Tax Reference Nos. 15 and 16 of 1968.\n\nH N. D. Karkhanis and 0. P. Rana, for the appellant.\n\nD. P. Singh, S. C. Agarwal, V. J. Francis and R. P. Singlt, for the respondent.\n\nThe Judgment of the Court was delivered by HEGDE, J. These are appeals by Special Leave. They related to penalty proceeding. 1'.he assessee, M/s. Dyer Meakin Bes Ltd., .is canying on busmess of mantifacture and sale of wmes, bear and fruit juices, etc. at Ghaziabad.\n\nThe assessee was registered as a dealer under The Central Sales Tax Act, 1956 (hereinafter referred to as the Act) a_t Ghaziabad. During the assessment years 1958-59 and 1959-60, the assessee submitted its sales tax returns to the Sales Tax Officer at Ghaziabad and he was assessed by that Officer.\n\nSubsequently, the Sales Tax Officer, Ghaziabad, came to know that the assessee had misused some ot the 'C' forms issued to it. According to his information, the assessee, by misusing the 'C' form, had purchased goods worth Rs. 11,754.62 P. in thi; assessment year 1958-59 and goods worth Rs. 2,68,242.38 P. in the assessment year 1959-60. Hence, the Sales Tax Officer, Ghaziabad, issued to the assessee a notice on January 8, 1960 calling upon him to show cause why he should not impose penalty on him under Section 10-A of the Act. The assessee did not give any explanation. Some time thereafter, the assessee made an aP.Plication praying for condonation of his default, alleging that the defaults were committed due to ignorance of law. The Sales Tax Officer did not accept that explanation.\n\nThe Sales Tax Officer, Ghaziabad again issued a notice to the assessee on October 31, 1960 requiring it to show cause why it should not be prosecuted under Section IO (b) of the Act. Thereupon, the assessee submitted an application offering to compound the offence for a sum of Rs. 7,000/-. That offer was not accepted .. Subsequently, on January 23, 1961, the Sales Tax Officer again called upon the assessee to show cause why penalty should not be imposed on him under Section 10-A. After examining the representation made by the assessee, the Sales Tax Officer imposed on the assessee a penalty of Rs. 1,000/- in respect of the u.nlawful purchases made by him during assessment year 1958-59 and a sum of Rs. 23,000/- in respect of the unlawful purchases made by him during the assessment year 1959-60. On appeal, the Assistant Commissioner (Judicial) reduced the penalty in respect of the assessment year 1958-59 to Rs. 750/- and in respect of the sment year 1959-60 to Rs. 17,000/-.\n\nThereafter, the assessee took up the matter in revision. The Revisional Authority dismissed the asses5ee's appeal in respect of the assessmept year 1958-59, but reduced the penalty fr0m Rs. 17;000/- to Rs. 15,000/- in respect of the assessment year 1959-60. Thereafter. at the instance of the assessee, the Revisional Authority submitted the following questions to the High Court under Section 11 ( 1 ) of the U.P. Sales Tax Act :-\n\n\"!. Whether on the facts and circumstances of the case the Sales Tax Officer, Ghaziabad being not seized\n\nU.P. STATB v. DYBR MBAKIN (Hegde, /.) 651\n\nof the matter at the tin).e of making the penalty order the jurisdictl?n havin' n tramf~ ~~ I:ucknow circle, was nght and iust. m la'Y 'in m1tialing tlle\n\npenalty pr<>eeMing.o and 1U1posmg the fine ?\n\n2. Whether on the facts and circumstances of the c11Se\n\nthe additional Revising Authority, Sales Tax, Meerut Range was justified in holding that the appli cants made the representations with a guilty mind fraudulently and falsely; with the full knowledge that the objected goods purchased were not covered by the registration certificate ?\n\n3. If the answer to question No. 2 is in the negatiye,\n\nwhether the imposition of penalty under section lO(b) of the Central Sales Tax Act was justified an<l right in law ?\" The High Court answered the first question in favour of the assessee.\n\nIt came to the conclusion that the Sales Tax Officer, Ghaziabad, had no jurisdiction to initiate penalty proceedings against the assessee as by the time he made his order, the jurisdiction over the assessee had been transferred to the Sales T8.ll.\n\nOfficer, Lucknow. Having answered the first question in favour of the assessee, the High Court thought it unnecessarv to answer the remaining two questions.\n\nThe only question that we have to decide is whether the High Court was justified in. coming to the conclusion that the Sales Tax Officer, Ghaziabad, had no' jurisdiction to impose penalty on the assessee.\n\nAs mentioned earlier, the assessee was registered as a dealer before the Sales Tax Officer, Ghaziabad. The assessee had submitted his sales tax returns for tile assessment years 1958-59 and 1959-60 to the Sales Tax Officer, Ghaziabad. It is that Offi cer who had assessed the assessee. in respect of those assessment years. The validity of those assessments have not been questioned at any stage. The registration of the assessee was transferred from Ghaziabad to Lucknow only on 28-3-1960. Till that dare, the assessee continued to be registered as a dealer in the office of the Sales Tax Officer, Ghaziabad. The penalty proceedings had bee.n ini?-ated on Janary 8, 1960, i.e. IQng before the assessee's registration was transferred from the Sales Tax Officer, Ghaziabad to the ales Tax Officer, Lucknow. The High Court came to the conclus10n tl!at when the penalty was actually imposed on the assessee, the Sales Tax Officer, Ghaziabad, had no jurisdiction over the assess:e and hence the l!)vy made was invalid. We shall\n\nprent!y c:xanune th~ correctness of that conclusion. But before doing so, 1t would be convenient to dispose off a new contention\n\navanced by Mr. Singh, the learned counsel for tl!e assessee. Mr.\n\nSmgh contended that the registration of the assessee as a dler\n\n652 SUPP.EME COUl\\T P.BPOP.TS [1973] 3 s.c.a.\n\nbefore the Sales Tax Officer, Ghaziabad was an invalid registration as the U.P. Sales Tax Act as well as the Central Sall:s Tax Act did not permit double registration of the same assessee.\n\nAccording to him the assessee's head office was at all time at Lucknow. . This is an entirely new contention. No such conten- . ti0n appears. to have been taken either before the authorities under the Act or before the High Court. On the basis of the material on record it is not possible to come to a firm conclusion that the same assessee had been registered at two places. Further there is no material befor~ us to show that during the relevant assessment years the assessee's head o.flice was at Lucknow. These are essentially questions of fact.\n\nWe cannot go into tlibse questions at this stage. Hence:, we do not propose to go into the contention that the assessee's registration at Ghaziabad was invalid. We have to proceed on the basis that the assessee was properly registered as a dealer at Ghaziabad. If that was not so, the assessee would not have applied to the Sales Tax Officer, Ghaziabad, for registration; nor would it have submitted its sales tax returns to that officer. As mentioned earlier, the sales tax assessments for the years 1958-59 and 1959-60 were not challenged as being unauthorised.\n\nThis takes us to the question whether under Section 10-A of the Aot, the Sales Tax Officer, Ghazibad, bad competence to levy penalty on the asaessee.\n\nWe shall first read Section 10 of the Act to the extent it is material for our present purpose. That E\n\nection says :-\n\n\"10. Ii any person-\n\n(a)\n\n(b)\n\n(c) (d)\n\n(e)\n\n(f)\n\n....... •'• ........ .\n\nbeing a regisl4!£ed dealer, falsely represents when purchasing any class ol goods that , goods of such class are by his certificate of registration; or\n\nhe shall be punishable with simple imprisonment which may extend to six months, or with fine, or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues\".\n\nU.P. STATE v. DYER MEAKIN (Hegde, J.) 653\n\nSecition 10-A(I) says :-\n\n\"If any person purchasing goods is guilty of an offence under clause (b) or.clause (c) .or clause (d) of section\n\n10, the authority who granted to him or, cu the case ma, v be is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one and a half times the tax which would have been levied under this Act in respect of the sale to him of the goods if the offence had not bieen committed:\n\nProvided that no prosecution for an offence under seotion 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section. \" (emphasis supplied) .\n\nThere is no dispute that the authority who granted the certi- D ficate of registration was the Sales Tax Officer, Ghaziabad. Therefore, prima facie, he was competent to levy penalty on the assesscc.\n\nBut it was contended on behalf of the assessee that on 28.3.1960,\n\nthe registra!tion before the Sales Tax Officer, Ghaziabad, stood cancelled and thereafter the assessee was registered before the Sa)es Tax Officer, Lucknow, that being so, the Sales Tax Officer, E Ghaziabad, had no jurisdiction to levy penalty on the assessee.\n\nThis contention overlooks the language of Section 10-A. That section definitely says that the authority who gra.nted the certificate of registration to an assessce is one of the authorities competent to levy penalty.\n\nUndoubtedly, the Sales Tax Officer, Ghaziabad, was the authority who granted the certificate of registration to the assessee and that certificate was iu force durin11: the F assessment years 1958-59 and 1959-60.\n\nEven though after 28.3.1960 he ceased to be the authority competent to grant certificate of registration to the assessee he still had the competence to levy penalty on the assessee in view of the fact that it was he who had granted certificate of registration to the assessee.\n\nIn this case, we are dealing with the penalty relating to offences G committed during the assessment years 1958-58 and 1959-60.\n\nIn fact the levy of penalty is .one form of levying tax. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not H properly appreciate the legal position in this case.\n\nThe High Court was wrong in thinkjng that the proceedings initiated on January 9, 1960 stood tem1inated as a result of the subsequent notices issued by the Sales Tax Officer.\n\nThe notices issued 1>y\n\nhim are not statutory notices.\n\nUnder Section 10-A of the Act tho Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him.\n\nIn the result, we allow these appeals, set aside the order of the High Court and remand the case to the High Court for answering the remaining questions.\n\nCosts of these appeals will be costs in the cause.\n\nS.B.W.\n\nAppeals allowed.", "total_entities": 48, "entities": [{"text": "STATE OF U", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "DYER MEAKIN BREWERIES LTD", "label": "RESPONDENT", "start_char": 18, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "DYER MEAKIN BREWERIES LTD", "offset_not_found": false}}, {"text": "March 8, 1973", "label": "DATE", "start_char": 46, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "March 8, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 62, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 75, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 99, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Sales Tax Act, 1956", "label": "STATUTE", "start_char": 127, "end_char": 146, "source": "regex", "metadata": {}}, {"text": "Section 10", "label": "PROVISION", "start_char": 148, "end_char": 158, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1956", "statute": "Sales Tax Act, 1956"}}, {"text": "assessee was registered as a dealer under the Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 423, "end_char": 496, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ghaz.iabad", "label": "GPE", "start_char": 587, "end_char": 597, "source": "ner", "metadata": {"in_sentence": "For the relevant asses•\"K!'lt years, he was .Ssessed by the Tax Officer at Ghaz.iabad."}}, {"text": "Ghaziabad", "label": "GPE", "start_char": 622, "end_char": 631, "source": "ner", "metadata": {"in_sentence": "The Saleo Tax Officer, Ghaziabad, sub5equently came to know that the assessee had misuse<!"}}, {"text": "s 10", "label": "PROVISION", "start_char": 754, "end_char": 758, "source": "regex", "metadata": {"linked_statute_text": "The assessee was registered as a dealer under the Central Sales Tax Act, 1956", "statute": "The assessee was registered as a dealer under the Central Sales Tax Act, 1956"}}, {"text": "January 8, 1960", "label": "DATE", "start_char": 775, "end_char": 790, "source": "ner", "metadata": {"in_sentence": "some of the 'C' Forms and, therefore, issued a penalty notice u/s 10-A of the Act on January 8, 1960."}}, {"text": "Lucknow", "label": "GPE", "start_char": 887, "end_char": 894, "source": "ner", "metadata": {"in_sentence": "Durin11 the pendency of the penalty proceedings, the assessee transferred his registration to Lucknow."}}, {"text": "section\n\n11", "label": "PROVISION", "start_char": 1122, "end_char": 1133, "source": "regex", "metadata": {"linked_statute_text": "The assessee was registered as a dealer under the Central Sales Tax Act, 1956", "statute": "The assessee was registered as a dealer under the Central Sales Tax Act, 1956"}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 1150, "end_char": 1163, "source": "regex", "metadata": {}}, {"text": "Section 10", "label": "PROVISION", "start_char": 1535, "end_char": 1545, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act", "statute": "Sales Tax Act"}}, {"text": "28-3-1960", "label": "DATE", "start_char": 1911, "end_char": 1920, "source": "ner", "metadata": {"in_sentence": "Even though after 28-3-1960, 'the date of transfer of registration, he ceased to be the authority competent to grant certificate of registration to the assessee he still had the competence to levy penalty on the assessee in view of the fact, that it was he who had granted certificate of registration to the asaessee."}}, {"text": "CIVIL APPELLATE JURISDICTJON", "label": "PETITIONER", "start_char": 2497, "end_char": 2525, "source": "ner", "metadata": {"in_sentence": "653 DJ\n\nCIVIL APPELLATE JURISDICTJON : Civil Appeals Nos."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 2655, "end_char": 2675, "source": "ner", "metadata": {"in_sentence": "he judgmem: and order dated l st January 1970 of the Allahabad High Court in Sales Tax Reference Nos."}}, {"text": "H N. D. Karkhanis", "label": "LAWYER", "start_char": 2724, "end_char": 2741, "source": "ner", "metadata": {"in_sentence": "H N. D. Karkhanis and 0."}}, {"text": ". P. Rana", "label": "LAWYER", "start_char": 2747, "end_char": 2756, "source": "ner", "metadata": {"in_sentence": "H N. D. Karkhanis and 0."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 2778, "end_char": 2789, "source": "ner", "metadata": {"in_sentence": "D. P. Singh, S. C. Agarwal, V. J. Francis and R. P. Singlt, for the respondent."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 2791, "end_char": 2804, "source": "ner", "metadata": {"in_sentence": "D. P. Singh, S. C. Agarwal, V. J. Francis and R. P. Singlt, for the respondent."}}, {"text": "V. J. Francis", "label": "OTHER_PERSON", "start_char": 2806, "end_char": 2819, "source": "ner", "metadata": {"in_sentence": "D. P. Singh, S. C. Agarwal, V. J. Francis and R. P. Singlt, for the respondent."}}, {"text": "R. P. Singlt", "label": "OTHER_PERSON", "start_char": 2824, "end_char": 2836, "source": "ner", "metadata": {"in_sentence": "D. P. Singh, S. C. Agarwal, V. J. Francis and R. P. Singlt, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 2902, "end_char": 2907, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by HEGDE, J. These are appeals by Special Leave."}}, {"text": "Dyer Meakin Bes Ltd.", "label": "ORG", "start_char": 3005, "end_char": 3025, "source": "ner", "metadata": {"in_sentence": "1'.he assessee, M/s. Dyer Meakin Bes Ltd., .is canying on busmess of mantifacture and sale of wmes, bear and fruit juices, etc."}}, {"text": "assessee was registered as a dealer under The Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 3131, "end_char": 3204, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10", "label": "PROVISION", "start_char": 3935, "end_char": 3945, "source": "regex", "metadata": {"linked_statute_text": "The assessee was registered as a dealer under The Central Sales Tax Act, 1956", "statute": "The assessee was registered as a dealer under The Central Sales Tax Act, 1956"}}, {"text": "October 31, 1960", "label": "DATE", "start_char": 4296, "end_char": 4312, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Officer, Ghaziabad again issued a notice to the assessee on October 31, 1960 requiring it to show cause why it should not be prosecuted under Section IO (b) of the Act."}}, {"text": "January 23, 1961", "label": "DATE", "start_char": 4561, "end_char": 4577, "source": "ner", "metadata": {"in_sentence": "That offer was not accepted .. Subsequently, on January 23, 1961, the Sales Tax Officer again called upon the assessee to show cause why penalty should not be imposed on him under Section 10-A. After examining the representation made by the assessee, the Sales Tax Officer imposed on the assessee a penalty of Rs."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 4693, "end_char": 4703, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 5596, "end_char": 5606, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 5625, "end_char": 5638, "source": "regex", "metadata": {}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 6451, "end_char": 6472, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sales Tax Officer, Ghaziabad", "label": "RESPONDENT", "start_char": 7105, "end_char": 7133, "source": "ner", "metadata": {"in_sentence": "coming to the conclusion that the Sales Tax Officer, Ghaziabad, had no' jurisdiction to impose penalty on the assessee."}}, {"text": "Janary 8, 1960", "label": "DATE", "start_char": 7849, "end_char": 7863, "source": "ner", "metadata": {"in_sentence": "The penalty proceedings had bee.n ini?-ated on Janary 8, 1960, i.e. IQng before the assessee's registration was transferred from the Sales Tax Officer, Ghaziabad to the ales Tax Officer, Lucknow."}}, {"text": "Singh", "label": "OTHER_PERSON", "start_char": 8362, "end_char": 8367, "source": "ner", "metadata": {"in_sentence": "But before doing so, 1t would be convenient to dispose off a new contention\n\navanced by Mr. Singh, the learned counsel for tl!e assessee."}}, {"text": "Smgh", "label": "LAWYER", "start_char": 8413, "end_char": 8417, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nSmgh contended that the registration of the assessee as a dler\n\n652 SUPP.EME COUl\\T P.BPOP.TS [1973] 3 s.c.a."}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 8604, "end_char": 8617, "source": "regex", "metadata": {}}, {"text": "Section 10", "label": "PROVISION", "start_char": 9874, "end_char": 9884, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 10001, "end_char": 10011, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n10", "label": "PROVISION", "start_char": 10759, "end_char": 10770, "source": "regex", "metadata": {"statute": null}}, {"text": "28.3.1960", "label": "DATE", "start_char": 11645, "end_char": 11654, "source": "ner", "metadata": {"in_sentence": "But it was contended on behalf of the assessee that on 28.3.1960,\n\nthe registra!tion before the Sales Tax Officer, Ghaziabad, stood cancelled and thereafter the assessee was registered before the Sa)es Tax Officer, Lucknow, that being so, the Sales Tax Officer, E Ghaziabad, had no jurisdiction to levy penalty on the assessee."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 11961, "end_char": 11971, "source": "regex", "metadata": {"statute": null}}, {"text": "January 9, 1960", "label": "DATE", "start_char": 13205, "end_char": 13220, "source": "ner", "metadata": {"in_sentence": "The High Court was wrong in thinkjng that the proceedings initiated on January 9, 1960 stood tem1inated as a result of the subsequent notices issued by the Sales Tax Officer."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 13372, "end_char": 13382, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_655_661_EN", "year": 1973, "text": "C.I.T., ANDHRA PRADESH\n\nM/S. VADDE PALLAIAH & CO.\n\nMarch 8, 1973\n\n(K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J\n\nIncome-tax Act (11 of 1922) s. 34(3), Second Proviso-Scope of.\n\nUpto the assessment year 1953-54 a business was being carried on by P as an individual.\n\nIn March 1953, he entered into a partnership consisting of himself and others. For the assessment years 1954-55, 1955-56, and 1956-57 the firm filed returns of income aad applied for registration under s. 26A of the Income-tax Act 1922. The income-tax officer rejected the application holding that there was no genuine firm.\n\nHe accordingly assessed P as an individual in respect di the income earned in that business. As against that order the firm as well as P appealed to the Appellate Assistant Oimmissioner who allowed both the appeals.\n\nThe Appellate Assistant Commissioner held that the business was that of the firm and' not of P. When the Income-tax Officer proceeded to assess the firm for the assessment years 1954-55, 1955-56 and 1956-57, the firm resisted it taking the plea that the proceedings were barred by limitation under s. 34(3) of the Act. On the question whether the assessment for each of the assessment years was valid the High Court, on reference, held that the assessments were barred by time and were not saved by the second proviso to s. 34(3) of the Act.\n\nAllowing the appeals to this Court.\n\nHELD : Under the proviso the limitation of time would not apply to, an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under s. 31, 33, 33A and 33B, 66 or 66A.\n\nA finding which can be considered as relevant under the proviso must bt> one which was necessary for deciding the appeal before the authority; and the expression 'any person' refers to one who would be liable to be assessed for the whole or part of the income that went into the assessment of the year under appeal or revision. The person should be intimately connected\n\nwith the proceedings in which the finding was given. (658 CD; 660 A-B; E-Fl\n\nIn the present case, the order df the Appellate Assistant Commissioner was made under s. 31.\n\nThough he hac! not given any direction. the order made by the Incometax Officer was in consequence of the finding given by the Appellate Assistant Commissioner.\n\nThe finding given by the Appellate Assistant Commissioner that the business was that of the firm was absolutely necessary for deciding both the appeals before him.\n\nP, v; ho was the dominant partner of the firm was not only interested in his own assessment but was also interested in the assessment of the firm.\n\nThe partners and the firm were intimately connected with him and hence, they are 'persons' coming within the scope of the proviso. [658 E-F 660 C\n\nF-GJ . ' '\n\nIncome-tax Officer; A-Ward, Sitapur v. Murlidhar Bhagwan Das, 52 I.T.R. 335; 344. N.KT. Sivalingam Chettiar v. Commi,<sioner of lncometax, Madras, 66 J.T.R. 586 and Daffadar Bhagat Singh and Sons v. Jncometa.t Offecer, A-Ward Ferozepore, 11 I.T.R. 417, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1682 to 1684 of 1970.\n\nAppeals by special leave from the ·.iudgment and order dated October 3, 1969 of the Andhra Pradesh High Court in R.C. No. 4 of 1966.\n\nS. T. Desai, B. D. Sharma, S. P. Nayar, and R. N. Sachthey, :for the appellant.\n\nD. Karf(hanis, and K.\n\nRa; endra Chowdhary, for the respondent.\n\nThe JudgmeJllt of the Court was delivered by\n\nllEGDE, J.-These are appeals by Special Leave. They arise from a common judgment of the Andhra Pradesh High Court in a reference under section 66(i) of the Indian Income Tax Act, 1922, to be hereinafter referred to as the \"Act\". The reference i.n question relates to the assessment of the assessee tor the assessment years 1954-55, 1955-56 and 19,6-57. 'I'he question of law referred by the Tribunal is \"Whether on the facts and the circumstances of the case, the assessm.ent Dll\\(le on <the firms,. for each of the assessment years 1954-55, 1955-56 and 1956-57, are valid in law ?\"\n\nNow we shall set out the material facts as could be gathered from the case stated by the Triqunal. Up to and including the assessment year 1953-54 business with which we are concerned in this case, was carried on by V adde Pallaiah. He was assessed as an 'individual'. On March 20c3-1953 he entered into a partnership consisting of himself and three others. That partnership was known as \"M/s. Vadde Pulliah & Co.\" In that partnership Pulliah had 8 as. share and out of the remaining three partners two had 3 as. share each and one had 2 as. share. For the assessment years 1954-55, 1955-56 and 1956-57, this firm filed return> of income as a firm. It also applied for registration under section\n\n26A.\n\nThe Income-tax Officer rejected that aPPlication holding that there was no genuine firm.\n\nHe came to the conclusion that the business was exclusive that of Pulliah. He accordingly assessed Pulliah as an 'individual' in resoect of the income earned in that business.\n\nAs against that order both the firm as well as Pulliah went up in appeal to the Appellate Assistant Commissioner. Before the Appellate Assistant Commissioner, the -question for consideration was whether the firm in question was a genuine firm.\n\nIf the firm was a genuine firm, it necessarily followed that Pulliah was wrongly assessed. If, on the other hand, the firm was not a genuine firm, Pul!iah was rightly assessed. Therefore, the sole question that arose for decision in the appeals filed by the firm .as well as Pulliah was as to the genuineness of the firm in question. The Appellate Assistant Commissioner after examining the material be.fore him came to the conclmion that the finn in question was -a genuine firm.\n\nConsequently, he allowed the\n\nA. appeal of the firm as well as that of Pulliah. In tho firm's appeals.\n\nhe directed the Income-true Officer to register that firm and in Pulliah's appeal he set aside the assessment .made on him. In the operative portion of his order he stated thus :\n\n\"The Income-tax Officer is directed to adopt the correct share of income of ihe appellant from this firm.\"\n\nBut in the body of his order he specifically held that the business; in question was carried on by the firm and not l:zy Pulliah.\n\nAfter this order was made, the Income-true Officer proceeded to assess the firm in respeot of the income earned by that firm. during the assessment years 1954-55, 1955-56 and 1956:57, When the Income-true Officer initiated proceedings against the firm for the purpose oi. assessment, the firm resisted the same taking\n\nthe plea that the proceedings in question is barred by limitation under section 34(3) of the Act. He rejected that contention.\n\nAggrieved by that order the firm went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Coinmissi0nr.r upheld the contention of the assessee and set a.•ide the order of the Income-tax. Officer.\n\nAs against that order the Income-tall!\n\nOfficer went up in appeal to the Income-Tax Appellate TnbunaL The Tribunal partly accepted the appeal of the Income-tax Officer.\n\nIt came to the conclusion that the assessment in respect of assess-. ment years 1955-56 and 1956-57 are not barred in viewof the\n\nSecond Proviso to section 34(3) of the Act. Bur it opined that the asse•sment in respect of the assessment year I 954-55 was. barred by limitation.\n\nAggrieved by the decision of the Tribunal both the Commissioner of. Income-tax as well as the assessee moved the Tribunal\n\nunder section 66(i) of the Act to refer certain questions of law to the High Court of Artdhra Pradesh. The Tribunal submitkd the question set out earlier to the High Court. The High Court has answered that question in favour of the assessee. It came to the conclusion that the .impugned assessments were barred by time and they are not saved by the Second Proviso to sub-section ( 3) of section 34 of the Ac!. It is as against that decision these appeals G have been brought by the Commissioner of Income-tax.\n\nIn order. to deciile the controversy before us it is necessary to rel.er to the material portions of section 34. That section deals with income escaping assessment.\n\nWe are now concerned with sub-section (3) of section 34 and the Second Proviso thereto.\n\nSub-section (3) of section 34 reads :\n\n\"No order of assessment or reassessment, othor than an order of assessment u'nder section 23 to which clause\n\n( c) of sub-section ( 1) of section 28 applies or an order\n\nof assessment or reassessment in cases falling within clause (.i) of sub-section (1) or sub-section '(lA) of this section shall be made afier the expiry of four years from the end of the year in which the income, profits or gains were first assessable.\"· The First Proviso is not relevant for our present pnrposes. Hence we shall _proceed to quate the Second Proviso to sub-section ( 3 ) CJf section 34. That Proviso s.iys :\n\n\"Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or re-assessment may be made, sh.ill apply to a re-asse8sment made under section 27 or to an assessment or re-assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A.\"\n\nThe question before us is whether the assessee's case is covered D by the Second Proviso to section 34 ( 3) ? Befqre a case can be 'Said to be covered by the said Proviso certain requirements will have to be fulfilled. The first and foremost requirement is that the order made must be one either under section 31 or section 33 Qr section 33A or tion 33B or section 66 or section 66A. In the present case, admittedly, the order in question was made under <Section 31. The present case does not fall within the scope of section 27 about which there is no dispute.\n\nThe next requirement is that the order made by the Income- Tax Officer must be to give effect to any finding or direction\n\nven by the Appellate Authority. In this case the Appellate Assistant Commissioner had not given aliy directiOn to ·.issess the assessee. Therefore, all that we have to see is whether the order made by the Income-tax Officer was in consequence of a finding given by the Appellate Nsist.int Commissioner. The further <1uestion tb:at we have got to decide is whether the assessee can be considered as one of the pei; sons coming within the scope of the proviso in question. There has been. considerable controversy as to the meaning of the . word 'finding' in the Second '.Proviso to sec~ tion 34(3). This question came up before this Court for consideration in Income-Tax Officer, A-Ward, Sitapur v.\n\nMurlidhar Phagwan Das.(') This is what this Court obServed in that case:\n\n''The expression \"finding or direction\", the argument proceeds, is wide enough to take in at any rate a finding that is necessary to dispose of the appeal or direction which Appellate Assistant Commissioners have in\n\n{I) 52 I.T.R. 335 ; 3\"'4.\n\nC.I.T, v. VADDB PALLAIAH \"' co. (Hegde, /.) 659\n\npractice been issuin1t in respect of assessments of the years other than those before them in appeal. What does the expression \"finding\" in proviso to sub-section ( 3) of section 34 of the Act mean ? \"Finding\" has not been defined in the Income-tax Act. Order XX, rule 5, of the Code of Civil Procedure reads :\n\n\"In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.\"\n\nUnder this Order, a \"finding\" is, therefore, a decision on an issue framed in a suit. The seconil part of the rule shows that such a finding shall be one which by its own force or in combination with findings: on other issues should lead to the decision of the suit itself.. That is to say, the finding shall be one which is necessary for the disposal of the suit. The scope of the meaning of. expression \"finding\" is considered by a Division Bench of the Allahabad High Court in Pt. Hazarl Lal v. Income-\n\nTax Officer, Kanpur,('). There the learned judges pointed out :\n\n\"The word 'finding', interpreted in the sense indicated by us above, will only cover 1Il8'1erial quC1Stions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing.\"\n\nWe agree with this contention of finding.\" The same view was taken by this Court in N .KT. Sivallngam Chettlar v. Commissioner\n\nof Income-tax, Madras(').\n\nTherein this Court ruled that a finding or direction by an appellate authority in an order relating to the assessment of one year does not warrant the avoidance of the bar of limitation under section 34 of the Indian Incometax Act, 1922, against initiation of proceedings for assessment for another year. A finding within the second proviso to section 34(3), must be a finding for giving relief in respect of the assessment for the year in question. A finding may only be that which was necessary for the disposal of an appeal in respect of an assessmene of a particular year.\n\n(I) 39 J.T.R. 265.\n\n(2) 66 I.T.R. 516,\n\nThe la'\\\\' on question was elaborately examined by this Court again in Daffadar Bhagat Singh and Son, g v. lncome•tax Officer, A Ward F erozepure ( 1) • Therein this Court reiterated that a finding which can be considered as relevant under the second proviso to section 34(3) must be one which was necessary for deciding the appeal before the authority. Having set ut the law, let us examine whether the finding given in this case is one that was necessary for the decision of the case before !he Appellate Assistant Commissioner. As mentioned earlier the question that the Appellate Assistant Commissioner .bad to decide in the two appeals before him, which he heard together, was whether the business in question was the business of. the firm or 1hat of Pulliah. He had only two alternatives before him: In order to decide the appeal of the firm as well as that of Pulliah, he had to decide whether the business was that of the firm or that of Pulliah. He cama to the conclusion that the business was that of the firm and not of Pulliah.\n\nThere is .no room for doubt that the finding given by the Appellate Assistant Commissioner was absolutely necessary for deciding both the appeals before him.\n\nThis takes us to the other branch of the second proviso . to section 34(3), namely, whether the firm can be considered as coming within the expression 'any person' in the proviso in question. In Murlidhar Bhagwan Das (Supra), this Court came to the concltlsion that the .expression 'any person' in the second proviso to section 34 ( 3) rel erred to one who would be fiable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision. Further, that person should be intimately connected with the proceedings in which the finding was given. The same view was taken in other cases refierred to earlier. In the instant case Pulliah was the dominant partner of the firm as found by the Tnbunal. He had 8 as. share in the firm. He was the original owner of the firm.\n\nHe was not only interested in his own assessment, he was also interested in the assessment of the firm. The partner of Pulliah were intimately connected with him.\n\nHence we were clearly c1'. the opinion that they are \"persons\" coming within the scope of the second proviso to section 34(3).\n\nIt may be noted that the Appellate Assistant Commissioner had to deal. with the cases of Pulliah as well as that ol. the firm.\n\nIn our opinion the High Court erred in coming to the conclusion that the finding given by the Appellate Assistant Commissioner, in the appeals filed by Pulliah as well as by the firm, that the business was carried on by the firm. was not a necessary finding for deciding the appeals before him.\n\nThat finding was\n\n(1) 71 I.T.R. 417.\n\nclearly necessary. But for that finding he could not have decided the appeals before him in the .way he decided. The High Coun was also wrong in its conclusion that the firm was a stranger to the assessment made on Pulliah. The firm was intimately connected with Pulliah and the assessment made on him.\n\n8 For the reasons mentioned above we set aside the order of t.he High Court. We vacate the answer given by the High Court and answer the question referred to in the affirmative and in favour of the Revenue. The appellant will get his costs from the Respondent. One hearing fee.\n\nV.P.S.\n\nAppeal allowed.\n\n10-L761Sup.C.l./73", "total_entities": 71, "entities": [{"text": "C.I.T., ANDHRA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "C. I. T. ANDHRA PRADESH", "offset_not_found": false}}, {"text": "M/S. VADDE PALLAIAH & CO", "label": "RESPONDENT", "start_char": 24, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "M/S. VADDE PALLAIAH & CO", "offset_not_found": false}}, {"text": "March 8, 1973", "label": "DATE", "start_char": 51, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "March 8, 1973\n\n(K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J\n\nIncome-tax Act (11 of 1922) s. 34(3), Second Proviso-Scope of."}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 67, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 80, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ", "label": "JUDGE", "start_char": 104, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 124, "end_char": 138, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34(3)", "label": "PROVISION", "start_char": 152, "end_char": 160, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 479, "end_char": 485, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act 1922", "label": "STATUTE", "start_char": 493, "end_char": 512, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(3)", "label": "PROVISION", "start_char": 1118, "end_char": 1126, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act 1922", "statute": "the Income-tax Act 1922"}}, {"text": "s. 34(3)", "label": "PROVISION", "start_char": 1341, "end_char": 1349, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act 1922", "statute": "the Income-tax Act 1922"}}, {"text": "s. 31, 33, 33A and 33B, 66", "label": "PROVISION", "start_char": 1625, "end_char": 1651, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31", "label": "PROVISION", "start_char": 2195, "end_char": 2200, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3101, "end_char": 3129, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 3308, "end_char": 3319, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. D. Sharma, S. P. Nayar, and R. N. Sachthey, :for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 3321, "end_char": 3333, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. D. Sharma, S. P. Nayar, and R. N. Sachthey, :for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3335, "end_char": 3346, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. D. Sharma, S. P. Nayar, and R. N. Sachthey, :for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3352, "end_char": 3366, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. D. Sharma, S. P. Nayar, and R. N. Sachthey, :for the appellant."}}, {"text": "D. Karf(hanis", "label": "LAWYER", "start_char": 3389, "end_char": 3402, "source": "ner", "metadata": {"in_sentence": "D. Karf(hanis, and K.\n\nRa; endra Chowdhary, for the respondent."}}, {"text": "K.\n\nRa", "label": "LAWYER", "start_char": 3408, "end_char": 3414, "source": "ner", "metadata": {"in_sentence": "D. Karf(hanis, and K.\n\nRa; endra Chowdhary, for the respondent."}}, {"text": "endra Chowdhary", "label": "LAWYER", "start_char": 3416, "end_char": 3431, "source": "ner", "metadata": {"in_sentence": "D. Karf(hanis, and K.\n\nRa; endra Chowdhary, for the respondent."}}, {"text": "llEGDE", "label": "JUDGE", "start_char": 3500, "end_char": 3506, "source": "ner", "metadata": {"in_sentence": "The JudgmeJllt of the Court was delivered by\n\nllEGDE, J.-These are appeals by Special Leave."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 3588, "end_char": 3613, "source": "ner", "metadata": {"in_sentence": "They arise from a common judgment of the Andhra Pradesh High Court in a reference under section 66(i) of the Indian Income Tax Act, 1922, to be hereinafter referred to as the \"Act\"."}}, {"text": "section 66(i)", "label": "PROVISION", "start_char": 3635, "end_char": 3648, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 3656, "end_char": 3683, "source": "regex", "metadata": {}}, {"text": "V adde Pallaiah", "label": "OTHER_PERSON", "start_char": 4300, "end_char": 4315, "source": "ner", "metadata": {"in_sentence": "Up to and including the assessment year 1953-54 business with which we are concerned in this case, was carried on by V adde Pallaiah."}}, {"text": "March 20c3-1953", "label": "DATE", "start_char": 4356, "end_char": 4371, "source": "ner", "metadata": {"in_sentence": "On March 20c3-1953 he entered into a partnership consisting of himself and three others."}}, {"text": "Vadde Pulliah & Co.", "label": "ORG", "start_char": 4478, "end_char": 4497, "source": "ner", "metadata": {"in_sentence": "That partnership was known as \"M/s. Vadde Pulliah & Co.\" In that partnership Pulliah had 8 as."}}, {"text": "Pulliah", "label": "OTHER_PERSON", "start_char": 4519, "end_char": 4526, "source": "ner", "metadata": {"in_sentence": "That partnership was known as \"M/s. Vadde Pulliah & Co.\" In that partnership Pulliah had 8 as.", "canonical_name": "Pulliah"}}, {"text": "section\n\n26A", "label": "PROVISION", "start_char": 4772, "end_char": 4784, "source": "regex", "metadata": {"statute": null}}, {"text": "Pul!iah", "label": "OTHER_PERSON", "start_char": 5446, "end_char": 5453, "source": "ner", "metadata": {"in_sentence": "If, on the other hand, the firm was not a genuine firm, Pul!iah was rightly assessed.", "canonical_name": "Pulliah"}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 6695, "end_char": 6708, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 7292, "end_char": 7305, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(i)", "label": "PROVISION", "start_char": 7552, "end_char": 7565, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 7933, "end_char": 7943, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8158, "end_char": 8168, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8268, "end_char": 8278, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8331, "end_char": 8341, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 8433, "end_char": 8443, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 8489, "end_char": 8499, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8913, "end_char": 8923, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 9157, "end_char": 9167, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", 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"source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 9727, "end_char": 9737, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 9741, "end_char": 9752, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66", "label": "PROVISION", "start_char": 9768, "end_char": 9778, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66A", "label": "PROVISION", "start_char": 9782, "end_char": 9793, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 31", "label": "PROVISION", "start_char": 9866, "end_char": 9876, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 9929, "end_char": 9939, "source": "regex", "metadata": {"statute": null}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 10156, "end_char": 10178, "source": "ner", "metadata": {"in_sentence": "In this case the Appellate Assistant Commissioner had not given aliy directiOn to ·.issess the assessee."}}, {"text": "section 34", "label": "PROVISION", "start_char": 11334, "end_char": 11344, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11401, "end_char": 11415, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 11438, "end_char": 11465, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 12175, "end_char": 12195, "source": "ner", "metadata": {"in_sentence": "expression \"finding\" is considered by a Division Bench of the Allahabad High Court in Pt."}}, {"text": "section 34", "label": "PROVISION", "start_char": 13065, "end_char": 13075, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Incometax Act, 1922", "label": "STATUTE", "start_char": 13083, "end_char": 13109, "source": "regex", "metadata": {}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 13217, "end_char": 13230, "source": "regex", "metadata": {"linked_statute_text": "the Indian Incometax Act, 1922", "statute": "the Indian Incometax Act, 1922"}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 13753, "end_char": 13766, "source": "regex", "metadata": {"linked_statute_text": "the Indian Incometax Act, 1922", "statute": "the Indian Incometax Act, 1922"}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 14752, "end_char": 14765, "source": "regex", "metadata": {"statute": null}}, {"text": "Murlidhar Bhagwan Das", "label": "OTHER_PERSON", "start_char": 14886, "end_char": 14907, "source": "ner", "metadata": {"in_sentence": "In Murlidhar Bhagwan Das (Supra), this Court came to the concltlsion that the .expression 'any person' in the second proviso to section 34 ( 3) rel erred to one who would be fiable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision."}}, {"text": "section 34", "label": "PROVISION", "start_char": 15011, "end_char": 15021, "source": "regex", "metadata": {"statute": null}}, {"text": "Tnbunal", "label": "OTHER_PERSON", "start_char": 15432, "end_char": 15439, "source": "ner", "metadata": {"in_sentence": "In the instant case Pulliah was the dominant partner of the firm as found by the Tnbunal."}}, {"text": "section 34(3)", "label": "PROVISION", "start_char": 15789, "end_char": 15802, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_662_669_EN", "year": 1973, "text": "COMMISSIONER OF INCOME TAX, MADRAS v.\n\nM/S. MADURAI MILLS CO. LIMITED March 9, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R, KHANNA, JJ.]\n\nIncome-tax Act, 1922, s. 12B-Capital Gains-Voluntary liquidation of private limited company-Distribution of assets to shareholder.-- Surplus received by shareholders whether attracts tax on capital gains-- Distribution of assets whether amounts to sale, exchange relinquishmenti or transfer within meaning of s. 12B.\n\nInterpretation of statutes-Proviso which existed in original law dropped in amended law-Inference to be drawn,\n\nThree private limited companies in which the assessee held ahatel went into voluntary liquidation in December 1959 In the course ot the liquidation proceedings the liquidators made dislribution in the year of account relevant to the aaaeasment year 1961-62, and the assesaee company got cash or assets in lieu of the amounts due in respect of the three compariies. The Revenue took the view that by reason of the distribution of assets of the three private companies under liquidatiol> by the liquidators there had been a capital gain which was assessed by the Income-tax Officer at Ra. 95,944/-. The Appellate Assisl$t Commissioner up\\leld the order of the Income-tax Officer.\n\nHe took the view that the surplus arose out of the .exchange of aharea held by the assessee company in the three companies and therefore the surplus ought to be brought to tax. In further appeal the Tribunal held that there was no exchange or transfer of shares and assets in question but the transaction could be viewed as a relinquishment. The Higb Court held, in reference, that where a liquid.tor distributes the assets\n\nof the company which ha8 gone into voluntary liquidatiop he ia performing a legal function and there is no element of sale, transfer, exchange or relinquishment involved in such distribution. The Revenue appealed to this Court,\n\nDismissing the appeal,\n\nHELD : (i) The distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, reJiD .. quishment or transfer So as to attract section 12B of the Act.\n\nWhen a shareholder reoeives money repr..., nting his share on distribution of the net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holdin.e the shares and not by operation of_ GDY transaction which amounts to sale, exchange, relinquishment or transfer. In the ckcumstances it was difficult to hold that the assessee company was liable to pay tax on capital gains as contemplated by section l 2B of tho Act in respect of the amount of Rs. 95,944/- [6670)\n\n(ii) If the language of sub-section (!) of section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer qr exchange the said\" trllllSaction of distribution of assets would not chan_ge its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to aub..ection ( l) of section 12B of the Act, even though such a clariJlcation was there In\n\nthe !hi.rd provis<> of the sction inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations 'stemming from legislative history must pot be 'allowed to override the pMn words of a statute.\n\nA proviso cannot be construed as enlarging the scopz of an enactment \\Vhen it can be fairly and p.r:operly construed with'out attributiniz to it !hat effect. Further if the language of the enacting part of the statute is pla~ <ind unamb'iguous and does not contain the provisions which are said to occur in it~ one cannot derive those provisions by implication from a proviso. [6690]\n\nCommissioner. of Income-tax U.P. v. Bankey Lal Vaidya . [197_11 79 I. T. R. 594 and Commissioner of Income-Tax v. Dewas Cine Cor• poration [1968] 68 I.T.R. 240, applied. ·\n\nCommissioner of Income-tax v. Associated Industrial Developnient Co. P. Ltd. [1969] 73 I.T.R. 50 and Commissioner of Income Tax\n\nv. R. M. Amin, [1971] 82 1.T.R. 194, approved. ·\n\nAnderson v. Commissioner of Income Tex. [1960] 39 I.T.R. 123, distinguished. ' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1394 of 1970. '\\\n\n,. D Appeal by certificate from the judgment and order dated\n\nFebruary 28, 1969 of the High Court at Madras in Tax Case No .. 124 of 1965. ·.', s. C. Manchanda, P. L. Juneia and R. N. Sacluhey, for the appellant.\n\nS, T. Desai and T. A. Ramachandran, for the respondent'.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-This appeal on cetificate has been filed by the Commissioner of Income Tax against the judgment of Madras . High Court whereby that court answered the following question\n\nreferred to it under section 66 (1) of the Indian Income Tax Act, 1922 (hereinafter referred to as ilie Act) in the ngative in favour of the assessee respondent :\n\n\"Whether orl the facts and circumstances of the case, the Tribunal was right in holding that the sum of Rs. 95,944/- is liable to tax under Section 12B(2) ?\" . ·\n\nThe matter relates to assessment year 1961-62. The assessee is a public limited company carrying on the business of manufacture and sale of yam. The assessee held shares in the following companies as under : .\n\n(1) Indian Mills Supply Company (Private) Limited,\n\n2,760 shares of the face value of Rs. 100/-\n\n(2) Harveys (Private) Limited, 1,000 shares of the\n\nface value of Rs. 1001-.\n\n664 SUPREME COUil.T REPORTS\n\n[1973] 3 S.C.R.\n\n( 3) Pendyan Weaving Mills (Private) Limited, A 1,800 shares of tile face value of Rs. 100/-.\n\nThe above three companies went into voluntary liquidation in December, 1959.\n\nIn the course of the liquidation proceedings, the liquidiators made diS'tribution in the relevant year of account and the assessee company got cash or assets in lieu of cash of the amount of Rs. 4,57,858, Rs. 1,41,739 and Rs. 1,83,175 in respect of Indian Mills Company (Private) Limited, Harveys (Private) Limited and Pandyan Weaving Mills (Private) Limited respectively.\n\nThe revenue took the view that by reason of the distributton of assets of the three private companies under liquidation by the liquidators, there had been a capital gain of Rs. 96,735.85 in respeot of Indian Mills Supply Company (Private) Limited and Rs. 41,168.88 in respect of Harveys (Private) Limited making a total of Rs. 1,37,904.73. Out of that, loss amounting to Rs.\n\n41,960.56 in respect of Pandyan Weaving Mills (Private) Limited was deducted, leaving a balance of Rs. 95,944.00. The assessee company at fir!ll showed the sum of Rs. 95,944.00 as capital gains but subsequently it filed a statement showing a loss of Rs. 59, 104 on the basis that the cost of shares distributed by the liquidators should be taken at the figure at which they had been acquired by the companies which distributed the shares.\n\nThe Income-tax Officer assessed the assessee company to capital gain at the sum of Rs~ 95,944. Aggrieved by the order of the Income-tax Officer the assessee filed appeal before the Anpella e Assistant Commissioner and on being unsuccessful there, filed further appeal before the Income Tax Appellate Tribunal. The main contention which was raised on behalf of the assessee was that the transaction in question involved. lio sale, exchange, relinquishment or transfer and as such, the amoulit in que!llion was not capital 2ain under section 12B of the Act. The Appellate AssiS'tant Commissioner was of the view that the surplus arose out of the exchange of shares held by the assessee company in the three comnanies and therefore the surplus ought to be brought to tax. The T'ibunal held that there was an exchange or transfer of shares and assets in question. The transaction, according to the Tribunal, could also\n\nbe viewed as a relinquishment.\n\nThe assessee was conseauently held liable to pay tax on the sum of Rs. 95,944 u'1der section 12B of the Act.\n\nThe question reproduced above was thereafter, on the application of the assessee, referred to the High (', ourt.\n\nThe High Court while answering the question in the ne11ative\n\nheld that when a liquidator distn'butes the a•sets of a comnny which has gbne into voluntary liquidation, he is performing a legal H function and there is no element of sale, transfer, exchane or relinquiShment involved in such distribution.\n\nThe judgment of the Hil!h Court is reported in (1969) 74 T.T.R. 623.\n\nBefore dealing farther, we may mention that capital gains were charged for the first time by the Income Tax and Excess Profit Tax (Amendment) Act, 1947 (Act 22 of 1947) which inserted section 12B in the Act. It taxed capital gains aising after March 31, 1946. The tax on capital gains was virtually abolished by the Indian Finance Act, 1949 which confined the operation of that section to capital gains arising before April 1, 1948. Capital gains tax was, however, revived with effect from APril 1, 1957 by the Finance (No. 3) Act of 1956. Sub-section(l) of section J2B along _with its first proviso was as under :\n\n\"The tax shall be payable by an assessee under the head 'capital gains' in respect of any profits or gains arising fom the sale, exchange, relinquishment or trans.fer, of a capital asset effected after the 31 't day of March,\n\n1956. and such profits and gains shall be deemed to be income of the previous year to which the sale, exchange, relinquishment or transfer took place : Provided that any distribution of capital assets on the total o• partial partition of a Hindu undivided family or under a deed of gift. bequest or will, shall not for the purnoses of this section be treated as a sale. exchange, relinquishment or transfer of the capital assets \" Sub-section (2} of section 12B prescribed a statutory rrmula for purpose' nf computation of capital gains.\n\nSub-sec•ion ( 3) of section 12B was as under :\n\n\"Where aqy capital asset became the prr>uerty of the assessee by succession, inheritance or devolution or on anv distribution of capital a<sets on the total or partial nartition of a Hindu undivided fnmily or on the dissolution \"f a firm or other association of persons_ or on the liquidation of a company or under a deed of gift, or transfer on irrevocable trust, its actual cost allowable to him for the pumoses of this section shall be its actual cost to the previous owner thereof. and the provisions of\n\nsubsection (2) shall apply accordingly; and where the actual cost to the previous owner cannot be ascertained, the fair market value at the date on which the capital asset became the Property of the previous owner shall be deemed to be the actual cost thereof ...... \" Perusal of sub-section ( 1) of section 12B renroduced above shows that the liability to pav tax on account of capital gains can arise onlv if the assessee makes profit' or gains ari<ing frnm the sale, exchange. relinquishment or tramfer of a capital asset effected after March 31. 1956. The question with which we are cnncerned is whether the distribution of assets of the companies which\n\nhad gone into voluntary liquidation by ihe liquidators to the A assessee company resulted in a transaction which amounted to sale, exchange, relinquishment or transfer.\n\nMr. Manchanda on behalf of the appellant has argued in this Coun that the transaction in question amounted to sale or transfer.\n\nWe, however, find ourselves unable to accede to this contention.\n\nThe act of each of the liquidators in distributing the assets of. the B company which had gone into voluntary liquidation did not result in the creation of new rights. It merely entailed recognition of legal rights which were in existence prior to the distribU; tion. Ac cording to observations on page 512 of Buckley's Commentaries on the Companies Act, thirteenth edition, a liquidator is only a trustee in. the sense that the property of the company ceases upon c the winding up to belon11; beneficially to the company and passes into his custody, to be applied by him as directed by the 9tatute.\n\nIt is further observed on page 513 :\n\n\"The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925, and as such entitled to the benefit of ss. 30\n\nand 61 of that Act, was dis£_ussed, but not decided, in Re Windsor Steam Coal Co.(\") Semble, a liquidator is in the position of a trustee for the members when distributing surplus assets in specie in a winding up, so that no beneficial interest passes in the property conveyed or transferred, within the Finance (1909-1910) Act, 1910, s. 7 4 ( 6), and ad va/orem stamp duty under that section is not payable on conveyances or transfers of the property to the members.\"\n\nWhen a shareholder receives money representing his share on distribution of the net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer. In the circumstances, we find it difficult to hold that the assessee company is liable to pay tax on capital gains as contemplated by section 12B of the Act in respect of the amount of Rs. 95,944.\n\nIn the case of Commissioner of Income-tax U.P. v. Bankey Lal Vaidya(') (to which one of. us was a patty) the reapondent who was a karta of a Hindu uadivi.ded family, entered into a partnership with D to carry on the 1*Jsiness of manufacturing and selling pharmaceutical products and literature relating thereto.\n\nOn the dissolution of the partnership, ks assets, which included\n\ngoodwill, machinery, furniture, medicines, library and copyright\n\n11) [1929) I Ch. UI.\n\n(2) [197l] 7' 1.T.R. !94.\n\nin respect of certain publications, were valued at Rs. 2,50,000.\n\nSince most of the assets were incapable of physical division, it was agreed tha1t the 11$Sets be taken over by D and 1he respondent be paid his share. of the value of the assets in money and accordingly the respondent was paid Rs. 1,25,000. Question arose B, whether the sum of Rs. 65,000 being part of the amount received by the respondent could be brought to tax as capital gains under section 12B of the Act. It was held by Shah J., speaking for the Court, that the 31Tangement between the partners of the firm amounted to a distribution of the assets ol the firm on dissolution and that there was no sale, exchange or transfer of the respondent's c share in the capital assets to D. The sum of Rs. 65,000, it was accordingly held, could not be taxed as capital gains. The receipt of money by the respondent was, in the opinion of the Court, nothing but a receipt of his share in the distributed assets of the company.\n\nD Reliance in that case was placed, as has been done also in the present case, on behalf of the revenue upon the case of James\n\nAnderson v. Commissioner of Income Tax.( 1) The said case was distinguished and was found to be of not much avail to the revenue. In that case the assessee who held a power of attorney from the executor of a deceased person, sold certain shares and securities belonging to the deceased for the purpose of distributing E the assets amongst the legatees. The excess realised by sale was treated by the department as capital gains. The contention of the assessee was that since the sale of the shares and securities fell within the purview of the third proviso to section 12(B)(l), it could not be treated as a sale ol capital assets but this contention\n\nwas rejected by this Court. James Anderson's case, in our opinion, is not of such assistance to the revenue as in that case there was no distriblUtion of capital assets between the legatees. On the contrary, the assessee had in pursuance of the authority given to him by the executor of the deceased sold the shares and securities and the said sale had resulted in capital gain. In the present case there has been no sale of receipt of price but only a distribution of the assets of the companies which had gone into voluntary liquidation. Such a transaction does not amount to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assilltari.ce from that case.\n\nIn the case of Commissioner of lllCOIM Tax v. Dewas Cine Corporation(' this Court while dealing with section 10(2) (vii) of the Act observed that the exwession \"sale\" in its ordinary mean\n\nin11; is a transfer of property for a 1>rice, and adjustment of the rights of the partnen In 'a dissolved firm by allotment of its assets\n\n(ll [1960] 39 I.T.R. 123 .\n\n(2) (1968] 68 I.T .R. 2'40.\n\n....\n\nis not a transfer nor it is for a price. In that case the assets were distributed among the partners and it was contended that the assets mustin law be deemed to be sold to the individual partners in consideration of their respective shares, and the difference bet ween the written-down value and the price realised should be in eluded in the total income of the partnership under the second proviso to section J.0(2)(vii). This Court in this context observed that a partner ruay in an action for dissolution insist that the assets of the partnernhip be realised by. sale of its assets, but property allotted to a partner in satisfaction of his claim to his share, could not be deemed in law to be sold to him.\n\nIn Commissioner of Income Tax v. Associaled Industrial Development Co. P. Lt4.(1) a Division Bench of the Calcutta High Court held that the amount received by a shareholder on the liquidation of a company was not assessable to capital gains as there was no sale, c; Jtchange, relinquishment or transfer of the capital assets.\n\nSimilar view has also been taken by the Gujarat High Court in Commissioner of Income Tax v. R. M. Amin.(').\n\nWe are, therefore, ol the view that distribution of the asset& of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract section ' 12B of the Act.\n\nMr. Manchanda on behalf of the appellant has invited our attention to the third proviso to sub-section (1) of section 12B as originally enacted by the Income Tax and Excess Profit Tax (Amendment) Act wherein it was stated, inter alia, that any dis• tribution of capital assets on the dissolution of a firm or other association of persons or on the liquidation ol a company shall not for the purpose of section 12B be treated as sale, exchange or transfer of capital assets. It is urged that the omission of such distribution of capital assets in the first proviso to sub-section ( 1 ) of section 12B, as revised by the Finance (No. 3) Act of 1956, would show that the legislature wanted the distribution of capital assets on dissolution of a firm or other association of persons or the liquidation of a company to be treated as sale, exchange or transfer. This contention, in our opinion. is not well-foiinded. It appears to us that the cases of the distn\"bution of capital assets on dissolution of a firm or other association Of persons or liquida\n\ntion of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allav fears even thoudi the language ol sub-section (I ) of section 12B was not intended to aOPlV to such cases. Provis'ls, as mentioned on nage 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears.\n\nA proviso is inserted to guard against the particular case\n\n(I) (1969] 73 l.T.R. 50.\n\n12) (1971] 82 l.T.R. 19<4.\n\n( ..\n\n) .\\ •\n\nC.I.T. v. MADURAI MILLS (Khatfna, J.) 669\n\nof which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all. .\n\nWe have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section\n\n(1) of section 12B of the Act. If the language of sub-section ( 1) of section 12B of the Act is clear. and does not warrant the infercn.ce that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our oPinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section ( 1) of section 12B of the Act. even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well-settled that considerations stemmir1g from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition, page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, if the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive those provisions by implication E from a proviso (see page 217 of Craies on Statute Law, Sixth .\n\nEdition).\n\nIn the light of what has been discussed above, the difference between the language of the first proviso to section 12(B)(l ), as inserted bv Finance (No. 3) Aot of 1956 and the third p•oviso to section 12(b)(l). as inserted by Act 22 of 1947, cannot be of such material help to the revenue.\n\nReference has also been made by Mr. Manchanda. to sti<Jn 46 of the Income Tax Act, 1961 which contains a provision for chargin1t with capital irains the money or assets . received by a sha•eholder on •he l; quidation of a t:omPony. The liability under that section arises from it< express Provisions. It cannot, however, be sai<l that such a liahilitv would also a<ise even in the absence of such provisions un<ler the Aot of 1922.\n\nThe appeal consequen•ly fails and is dismis5ed With cos.ts.\n\ni . .\n\nG.C.\n\nAppeal dismissed.", "total_entities": 64, "entities": [{"text": "COMMISSIONER OF INCOME TAX, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, MADRAS", "offset_not_found": false}}, {"text": "S. MADURAI MILLS CO. LIMITED March", "label": "RESPONDENT", "start_char": 41, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "M/S. MADURAI MILLS CO. LIMITED", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 99, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "KHANNA, JJ.", "label": "JUDGE", "start_char": 129, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "KHANNA, JJ.", "offset_not_found": false}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 143, "end_char": 163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 165, "end_char": 171, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 452, "end_char": 458, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "section 12B", "label": "PROVISION", "start_char": 2104, "end_char": 2115, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 2711, "end_char": 2722, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 3099, "end_char": 3110, "source": "regex", "metadata": {"statute": null}}, {"text": "C. Manchanda", "label": "LAWYER", "start_char": 4414, "end_char": 4426, "source": "ner", "metadata": {"in_sentence": "s. C. Manchanda, P. L. Juneia and R. N. Sacluhey, for the appellant."}}, {"text": "P. L. Juneia", "label": "LAWYER", "start_char": 4428, "end_char": 4440, "source": "ner", "metadata": {"in_sentence": "s. C. Manchanda, P. L. Juneia and R. N. Sacluhey, for the appellant."}}, {"text": "R. N. Sacluhey", "label": "LAWYER", "start_char": 4445, "end_char": 4459, "source": "ner", "metadata": {"in_sentence": "s. C. Manchanda, P. L. Juneia and R. N. Sacluhey, for the appellant."}}, {"text": "T. Desai", "label": "LAWYER", "start_char": 4484, "end_char": 4492, "source": "ner", "metadata": {"in_sentence": "S, T. Desai and T. A. Ramachandran, for the respondent'."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 4497, "end_char": 4515, "source": "ner", "metadata": {"in_sentence": "S, T. Desai and T. A. Ramachandran, for the respondent'."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 4583, "end_char": 4589, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-This appeal on cetificate has been filed by the Commissioner of Income Tax against the judgment of Madras .", "canonical_name": "KHANNA, JJ."}}, {"text": "Madras", "label": "GPE", "start_char": 4693, "end_char": 4699, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-This appeal on cetificate has been filed by the Commissioner of Income Tax against the judgment of Madras ."}}, {"text": "section 66", "label": "PROVISION", "start_char": 4786, "end_char": 4796, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 4808, "end_char": 4835, "source": "regex", "metadata": {}}, {"text": "Section 12B(2)", "label": "PROVISION", "start_char": 5069, "end_char": 5083, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "Indian Mills Supply Company (Private) Limited", "label": "RESPONDENT", "start_char": 5307, "end_char": 5352, "source": "ner", "metadata": {"in_sentence": "(1) Indian Mills Supply Company (Private) Limited,\n\n2,760 shares of the face value of Rs."}}, {"text": "Harveys (Private) Limited", "label": "ORG", "start_char": 5404, "end_char": 5429, "source": "ner", "metadata": {"in_sentence": "100/-\n\n(2) Harveys (Private) Limited, 1,000 shares of the\n\nface value of Rs."}}, {"text": "Pendyan Weaving Mills (Private) Limited", "label": "ORG", "start_char": 5529, "end_char": 5568, "source": "ner", "metadata": {"in_sentence": "T REPORTS\n\n[1973] 3 S.C.R.\n\n( 3) Pendyan Weaving Mills (Private) Limited, A 1,800 shares of tile face value of Rs."}}, {"text": "Indian Mills Company (Private) Limited", "label": "ORG", "start_char": 5946, "end_char": 5984, "source": "ner", "metadata": {"in_sentence": "1,83,175 in respect of Indian Mills Company (Private) Limited, Harveys (Private) Limited and Pandyan Weaving Mills (Private) Limited respectively."}}, {"text": "Pandyan Weaving Mills (Private) Limited", "label": "ORG", "start_char": 6016, "end_char": 6055, "source": "ner", "metadata": {"in_sentence": "1,83,175 in respect of Indian Mills Company (Private) Limited, Harveys (Private) Limited and Pandyan Weaving Mills (Private) Limited respectively."}}, {"text": "Indian Mills Supply Company (Private) Limited", "label": "ORG", "start_char": 6272, "end_char": 6317, "source": "ner", "metadata": {"in_sentence": "96,735.85 in respeot of Indian Mills Supply Company (Private) Limited and Rs."}}, {"text": "Income Tax Appellate Tribunal", "label": "COURT", "start_char": 7166, "end_char": 7195, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the order of the Income-tax Officer the assessee filed appeal before the Anpella e Assistant Commissioner and on being unsuccessful there, filed further appeal before the Income Tax Appellate Tribunal."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 7419, "end_char": 7430, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 7920, "end_char": 7931, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 8618, "end_char": 8629, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1946", "label": "DATE", "start_char": 8678, "end_char": 8692, "source": "ner", "metadata": {"in_sentence": "It taxed capital gains aising after March 31, 1946."}}, {"text": "tax on capital gains was virtually abolished by the Indian Finance Act, 1949", "label": "STATUTE", "start_char": 8698, "end_char": 8774, "source": "regex", "metadata": {}}, {"text": "April 1, 1948", "label": "DATE", "start_char": 8852, "end_char": 8865, "source": "ner", "metadata": {"in_sentence": "The tax on capital gains was virtually abolished by the Indian Finance Act, 1949 which confined the operation of that section to capital gains arising before April 1, 1948."}}, {"text": "APril 1, 1957", "label": "DATE", "start_char": 8924, "end_char": 8937, "source": "ner", "metadata": {"in_sentence": "Capital gains tax was, however, revived with effect from APril 1, 1957 by the Finance (No."}}, {"text": "31 't day of March,\n\n1956", "label": "DATE", "start_char": 9256, "end_char": 9281, "source": "ner", "metadata": {"in_sentence": "Sub-section(l) of section J2B along _with its first proviso was as under :\n\n\"The tax shall be payable by an assessee under the head 'capital gains' in respect of any profits or gains arising fom the sale, exchange, relinquishment or trans.fer, of a capital asset effected after the 31 't day of March,\n\n1956."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 9727, "end_char": 9738, "source": "regex", "metadata": {"linked_statute_text": "The tax on capital gains was virtually abolished by the Indian Finance Act, 1949", "statute": "The tax on capital gains was virtually abolished by the Indian Finance Act, 1949"}}, {"text": "section 12B", "label": "PROVISION", "start_char": 9836, "end_char": 9847, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 10673, "end_char": 10684, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31. 1956", "label": "DATE", "start_char": 10913, "end_char": 10927, "source": "ner", "metadata": {"in_sentence": "relinquishment or tramfer of a capital asset effected after March 31."}}, {"text": "Manchanda", "label": "OTHER_PERSON", "start_char": 11206, "end_char": 11215, "source": "ner", "metadata": {"in_sentence": "Mr. Manchanda on behalf of the appellant has argued in this Coun that the transaction in question amounted to sale or transfer."}}, {"text": "Buckley", "label": "OTHER_PERSON", "start_char": 11707, "end_char": 11714, "source": "ner", "metadata": {"in_sentence": "Ac cording to observations on page 512 of Buckley's Commentaries on the Companies Act, thirteenth edition, a liquidator is only a trustee in."}}, {"text": "Commentaries on the Companies Act", "label": "STATUTE", "start_char": 11717, "end_char": 11750, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 30\n\nand 61", "label": "PROVISION", "start_char": 12194, "end_char": 12208, "source": "regex", "metadata": {"linked_statute_text": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925", "statute": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925"}}, {"text": "Windsor Steam Coal Co.(\") Semble", "label": "ORG", "start_char": 12261, "end_char": 12293, "source": "ner", "metadata": {"in_sentence": "30\n\nand 61 of that Act, was dis£_ussed, but not decided, in Re Windsor Steam Coal Co.(\") Semble, a liquidator is in the position of a trustee for the members when distributing surplus assets in specie in a winding up, so that no beneficial interest passes in the property conveyed or transferred, within the Finance (1909-1910) Act, 1910, s. 7 4 ( 6), and ad va/orem stamp duty under that section is not payable on conveyances or transfers of the property to the members.\""}}, {"text": "s. 7", "label": "PROVISION", "start_char": 12537, "end_char": 12541, "source": "regex", "metadata": {"linked_statute_text": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925", "statute": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925"}}, {"text": "section 12B", "label": "PROVISION", "start_char": 13139, "end_char": 13150, "source": "regex", "metadata": {"linked_statute_text": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925", "statute": "The question whether a liquidator in a voluntary winding up is a trustee within the meaning of the Trustee Act, 1925"}}, {"text": "section 12B", "label": "PROVISION", "start_char": 14151, "end_char": 14162, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 14190, "end_char": 14194, "source": "ner", "metadata": {"in_sentence": "It was held by Shah J., speaking for the Court, that the 31Tangement between the partners of the firm amounted to a distribution of the assets ol the firm on dissolution and that there was no sale, exchange or transfer of the respondent's c share in the capital assets to D. The sum of Rs."}}, {"text": "section 12(B)(l)", "label": "PROVISION", "start_char": 15375, "end_char": 15391, "source": "regex", "metadata": {"statute": null}}, {"text": "James Anderson", "label": "OTHER_PERSON", "start_char": 15494, "end_char": 15508, "source": "ner", "metadata": {"in_sentence": "James Anderson's case, in our opinion, is not of such assistance to the revenue as in that case there was no distriblUtion of capital assets between the legatees."}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 16288, "end_char": 16301, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 17396, "end_char": 17415, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Income Tax v. Associaled Industrial Development Co. P. Lt4.(1) a Division Bench of the Calcutta High Court held that the amount received by a shareholder on the liquidation of a company was not assessable to capital gains as there was no sale, c; Jtchange, relinquishment or transfer of the capital assets."}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 17657, "end_char": 17675, "source": "ner", "metadata": {"in_sentence": "Similar view has also been taken by the Gujarat High Court in Commissioner of Income Tax v. R. M. Amin.(')."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 18054, "end_char": 18065, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 18346, "end_char": 18357, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 18532, "end_char": 18543, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 19163, "end_char": 19174, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 19854, "end_char": 19865, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 19917, "end_char": 19928, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 20320, "end_char": 20331, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(B)(l )", "label": "PROVISION", "start_char": 21219, "end_char": 21236, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(b)(l)", "label": "PROVISION", "start_char": 21306, "end_char": 21322, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1961", "label": "STATUTE", "start_char": 21471, "end_char": 21491, "source": "regex", "metadata": {}}]}
{"document_id": "1973_3_670_678_EN", "year": 1973, "text": "MUSTAQ AHMED MOHED HUSSAIN\n\nMUKHTAR HUSSAIN ALI HUSSAIN\n\nTHE STATE OF GUJARAT\n\nMarch 13, 1973\n\n(A. ALAGIRISWAMI, 1. D. DUA AND C. A. VAIDIAL!NGAM, JJ.]\n\nCode of Criminal Procedure s. 421-Power of l(igh Court to 'dismiss appeal in limine-When may be exercisted-Higl] Court must record reasons and it is not sufficient to sa, v 'dis1nissed'.\n\nJn this appeal by special leave the short question requiring determination was whether the High Court of Gujarat was justified in dismissing in limine with one word 'dismissed' the appellants' appeal against their conviction by the Sessions Judge, Jamgar for offences under s. 420 read with ss. 511 and 34, I.P.C. and under s. 474 read with s. 34, JJ!dian Penal Code,\n\nAllowing the appcal,\n\nHELD: Section 421 Cr.P.C. no doubt empowers the appellate court to dismiss the appeal summarily but before doing so it is bound to peruse with care and attention the. petition of appeal and the copy of the judgment or order appealed against. The order . of SUlllIOOry dismissal can be passed only if the court considers that there is no sufficient ground for interference. This conclusion has to be arrived at judicially after a proper scrutiny of the petition of appeal and the impugned judgirumt or order.\n\n[673G]\n\nThe power of dismissing appeals in limine should be exe'rdsed sparingly and with judicious caution so that no case raising arguable points, \\Vhether of law or of fact requiring re-appraisal of evidence, goes without requisite scrutiny. The requireme; at of recording reasons for summary dismissal. however concise, serves to ensure proper functioning of the judicial process.\n\nReasons are, therefore. advisedly required by the decisions of this Court to be given for rejecting an appeal summarily under s. 421 Cr. P. C. [6740]\n\nThe contention that when the trial court records a well reasoned judgment, then, even though arguable points on the question of the credibility of witnesses are raised, it is unnecessary for the court of appeal to deal with all these points and record Its own reasons for agreeing with the conclusions of the trial oourt, was unacceptable.\n\nUnless the challC!llge can be held to be prima facie unimpressive and unarguable the High Coun would be well-advised to go into the points canvassed a'1C) record 'its reasons. Such a Course would be in accord with the st itutorv intendment, and also of assistance to this Court in more satisf: ctorilv dealing with appeals under Art. 136 of the Cqnstitution. [6770]\n\nIn the present case the trial court's judgment mentioned several di.scTepancies in the prosecution evidence.\n\nThe appetlant.s were not unjustified in claiming to have the evidence on the record re-examined by the Hih Court for coming to its own conclusions.\n\nThe points raised in the petition of appeal could' by no means be said to be unarguable.\n\nWithout expressing any opinion on the merits of the case the Court sent the case back to the High Court for a fresh \\l<cision in the fight of this Court's obe, ei'vation.\n\nU. /, S. Chopra v. State of Bombay, [1955] 2 S.C.R. 94, Queen Empress v. Ram Narain & anr., l.L.R. 8 All. 514, Mohamad Ayub Abbas Raut v. The State of Maharashtra, Crl. A. No. 145 of 1961 decided on March 2.5, 1963, Mushtak HusMlin v. The Stale of Bomba, y, [1953) S.C.R. 809, Bhagat Singh v. State of Rajasthan, Cr!. A. No. 38 of 1969 decided on September 17, 1969, Shankar Beldar v. The State of MahGrashtra, Or:!. A. No. 95 of 1969 decided on September 18, 1969, K. K. lain v. State of Maharashtra A.LR. 1973\n\nS.C. 243, /iwan Prakash v. State of Milharashtra, A.LR. 1973\n\nS.C. 278, Shaikh Mohd. Ali v. State of Maharashtra, [1972] 2 S.C.C. 184 end Rajertdrapaul Ran=aran Dass Sharma v. The State of Maharashtra, Cr!. Appeal No. 264 of 1972 decided on Febh!ary 23, 1973, referred to. ·\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 9 of 1973.\n\nAppeal by special leave from the judgment and order dated July 31, 1972 of the Gujarat High Court in Cr. Appeal No.\"596\n\nof 1972.\n\nK. K. Sinha and S; K. Sinha, for the appellants.\n\nUrmila Kapoor, B. D. Sharma and S. P. Nayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.-In this appeal by special leave the short question requiring determination is whether the High Court of Gujarat was justified in dismissing in limine with one word \"dismissed\" the appellants' appeal against their conviction by the Sessions Judge, Jamnagar for offences under s. 420 read with ss. 511 and 34, 1.P.C. and under s. 474 read withs. 34, Indian Penal Code.\n\nBoth the appellants were charged on five counts in the court of the Sessions Judge relating to offences, inter alia of forging railway receipts purporting to be valuable security, being in pos• session of forged receipts knowing them to be forged and of dishonestly or fraudulently using the forged receipts as genuine knowing them to be forged, in furtherance of 1 he common intention of cheating the Indian Railways or attempting to cheat them.\n\nThe points which arose lor determination in the trial court as statlld in its judgment were :\n\n\" ( l ) Whether the prosecution has proved that on or about 7-8-71 at Jam.nagar accused no. l Mustaq Ahmed Mohmed Hussein and accused no. 2 Mukhtar Hussein Ali Hussein Sayed in furtherance of c0mmon intention of both to cheat the Indian Railway by using forged\n\nJ : . .. ,\n\nrailway receipts actually forged three railway receipts mark 6/ A, 6/B and 6/C purporting to be valuable security and thereby committed an offence punishable under section 467 read with section 34, I.P. Code?\n\n(2) Whether the prosecu1ion has proved that on or before 7-8-71 said accused nos. 1 and 2 in furtherance .\n\nof the common. intention of both to cheat Indian Railway forged railway receipts mark 6/ A, 6/B and 6/C intending that they shall be used for the purpose of cheating they thereby committed the offnce punishable under section 468 read with section 34 of the Indian Penal Code ? ( 3) Whether the prosecution has proved that said accused nos. 1 and 2 on or about 7-8-71 in furtherance of common intention of both to cheat Indian Railway fraudulently or dishonestly used as genuine •he three railway receipts marked 6/ A, 6/B and 6/C which they knew or had reason to believe at the time they used them to be the forged documents and thereby committed the . · . offence under section 471 read with section 34, J.P.\n\nCode? · ( 4) Whether 1he prosecution has proved that on or about 7-8-71 bath the said accused nos. 1 and 2 were in possession of the forged railway receipts purporting to be valuable security knowing . the same to be forged and intending that the same shall be fraudulently used as genuine documents and thereby committed an offence punishable under s. 474 read with section 34, J.P.\n\nCode ? ( 5) Whether the prosecution has proved that on or about 7-8-71 accu, ed nos. 1 and 2 were at J\"mnagar and in furtherance of common intentfon of both \"f them to cheat Indian Railway attempted to cheat Western.\n\nRailway by dishonestly inducing the railway employees, i.e ... the goods clerk at Jamnagar railway station to deliver them Coal Wagons in question and thereby commit- . 1ed the offence punishable under section 420 read with section 34 and s. 511 of the Indian Penal Code?\" On ooints nos. 1 to 3 the decision of the. trial court went in favour of the appellants and against the prosecution but on paints nos. 4 and 5 the anpellant~ were held guilty and convicted. They were sentenced under s. 420 read with ss. 511 and 34, I.P.C. to rigorous imorionment for three years and a fine of Rs . .1,000/- with further rigorous imorisonment for nine month~ in case of default in payment of fine.\n\nA similar sentence was imposed on each one of them for the offence under ss. 474/34, l.P.C. - Both,\n\n. . .\n\nI '\n\nB )\n\n• •\n\n• c . . )- •\n\n.,,\n\nF J' '\n\n.'.J\n\n'''\"Ym•••·••\"'\"'\"''''\"\"T•'•f'\"f'f'\", f't'T'n:~tt~Ttl~~·~~~'[; jj; l;;; Tfr'j';'j~\n\nMUSTAQ AHMED V. GUJARA~ (D1ia, },) 673\n\nthe sentences were ordered to run concurrently. It appears from the judgment of the trial court which covers about forty pages of exhaustive discussion on the poin1s raised .hat a large number of witnesses were examined at the trial and the court entertained considerable doubt with respect to the prosecution story on several aspects of the various charges framed against the appellants.\n\nOn appeal in the High Conn the appellants challenged all the adverse findings of the trial court, as they were entitled to do under s: 410 read withs. 418, Cr. P.C., and assailed the appraisal and evaluation of the evidence of the prosecution witnesses by that court.\n\nMore than 20 grounds were taken in the memorandum of appeal in which the testimony of the various eye-witnesses wa:; C criticised and ilie approach of the learned Sessions Judge in this respect assailed.\n\nAs already pointed out, the High Court dismissed the appeal in limine with one word \"diomisscd\" without indicating whether it also edorsed the line of reasoning and approach of the trial court in evaluating the testimony of the\n\nvarious witnesses and its manner of dealing with the arguments advanced by the prosecli1ion and the defence. .\n\nIn this Court it was seriously contended on behali of the appellants that the High Court hd gravely erred in summarily dismis- sing the appeal in limine without disclosing even broadly i1s reasons for rejecting the various grounds of attack against the appraisal of the prosecution evidence by the trial court. This, according 1o\n\nthe appellants learned counsel, is against the consistent and uni-· form view expressed by this Court that in arguable cases the High\n\nCourt,· while dismissing the appeal, broadly indicate its reasons in support of its conclusions. The judgment of the High Court has, in this case, resulted in failure of jus1ice to the appellants' prejudice, said the counsel.\n\nIn our view, the appellants' grievance is well-founded.\n\nThe right of appeal conferred by s. 410 read with s. 418, Cr. P .C. entitled the appellants to question the conclusions of the trial court both on matters of fact and of law. They had a right to ask for a review of the entire evidence and to challenge the appraisal of the evidence by the trial court and its conclusions based on such appraisal. Section 421, Cr. P.C. no doubt empowers the appellate court to dismiss the appeal summarily but before doing so it is bound to peruse with care and attention the petition of appeal and the copy of the judgment or order appealed against The order of suminarjr dismissal can be pas•ed only if the court considers that there is no sufficient ground for interference.\n\nThis conclusion has to be arrived at judicially after a proper scrutiny, of the petition of the appeal and the impugned judgment or order. ln U. f. S. Chopra v. State.of Bombay( 1) Bhagwati J., speaking\n\n(11 (10551 2 S.C.R. 94.\n\nSUPR~ME COURT REPORTS\n\n(1973] 3 S.C.R,\n\nfor the majority expressed the view that the hearing under s. 421 is intended for the purpose of detem1ining whether a prima facie case for 1he appellate court's interference is made out. The whole purpose of the hearing accorded to the appellant or his counsel, even after calling for the record of the case, under this section, is to determine whether there is a prima facie case for !he appellate court's interference and it is not within that court's province at that stage to fully consider the evidence on the record and hear arguments with a view to deteffiline whether the conviction could be sustained or the sentence passed could be reduced. No doubt the question directly arising in that case was somewhat difierenbut the observations with respeet to <the purpose of the hearing under s. 421, Cr. P.C. would be equally applicable to the consideration of the present contr0versy. If such be the real purpose of hearing contemplated biy s. 421, then, the power of dismissing appeals in limine should, in our view, be exercised sparingly and with judicious caution so that no case raising arguable points, whether of law or of fact requiring re-appraisal of evidence, goes withoU't requisite scrutiny. The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process.\n\nReasons are, therefore. advisedly required by the decisions of this Court to be given for rejecting an appeal summarily under s. 421, Cr. P.C.\n\nSinlilar view was taken by the Allallabad High Court as far back as 1886 in Queen Empress v. Ram Narain & Anr.('). Although that was a case in which the appeal had been dismissed by the Sessions\n\nJude. the considerations prevailing in such a case may equally well apply to cases where the High Court dismisses an appeal in limine for the reason, inter alia, that this Court may, when approach by the aggrieved party to exercise its power under Art. 136 of the Constitution, have <the benefit of the views of the High Court. With speakinJ!: orders justice is also seen to be done.\n\nTurning now to the decisions directly dealing with the point raised by the appellants, this Court has consistently and uniformly held that in cases raising arguable points the High Courts would be well-advised to make speaking orders indicating their reasons, however concise, inducinJ!: them to dismiss the appeals in limine.\n\nThe learned counsel Oil behalf of the State, Mrs. Uffilila Kanur. without disputing that where arguable and substantial questions of faot or law are raised on appeal the High Court is, according to the decisions of this Court, expected to write a speaking order however brief, dealing with and disnosine of the points canvassed\n\nbefore it submitted that in the present case there were no arguable or •ubstantial points involved and, therefore, the High Court was justified in dismissing the appeal In limine without indicating its\n\nTl T.L.R. 8 All. 514.\n\nreasons therefor. She, however, .referred us specifically to an unreported decision of this Court in Mohammad Ayub Abbas Raut\n\nv. The State of Maharashtra(').\n\nAccording to the learned counsel, this decision has not been noticed 1:fy this Court in its later decisions disapproving the dismissal i11 /imi11e by the High Courts of appeals from judgments of learned Sessions Judges.\n\nThis argument,. on first impression, appeared to suggest that the learned counsel wanted us to re-examine the numerous decisions of this Court uniformly disapproving the practice, prevailing in some High Courts, of too readily dismissing in limi11e, with one word \"dismissed\", appeals from the Sessions Courts even where arguable points of fact or law are apparent on the face of the impugned judgment or order.\n\nMrs. Kapur, however, soon clarified her position by submitting that he only wanted to contend that in the present case this Court should not interfere with the High Court's judgment as there were no arguable or substantial points involved in the appeal and Mohd. Ayub (supra) was only cited as a precedent to support this contention. According to her the judgment of the trial court is detailed and well-considered, sound reasons having been given in support of its conclusions : it was accordingly unnecessary for the High Court to specifically <lea! with the various points raised in the petition of appeal and to record its reasons for rejecting various grounds of challenge can- ' vassed before it.\n\nIn our view, Mohd. Ayub Abbas Raut (supra) does not in any way cast a doubt on the soundness of the various reasons which have consi!!lently prevailed with this Court firmly disapproving dismissal in /imine with one word \"dismissed\" of appeals before the High Courts from the judgments of Sessions Courts which raised arguable . points of fact or law. The view expressed in earlier decisions was not dissented from. Indeed no reference was F made to them. On the contrary it was observed that on the findings of the trial coUrt not considered erroneous by the High Court the latter was justfied in dismissing the appeal in limine as it bad full power to do so in exercise of its discretion under s. 421, Cr.\n\nP.C. That the High Court has power to dismiss in limine bas always hleen accepted by this Court. What this Court has consistently and uniformly laid down is that where arguable points ol fact or law are raised then the High Court Would be well-advised G\n\nto indicate its reasons for dismissing the appeal in limine. This view is now firmly established and there has never been any dissent.\n\nNo doubt, even now we come across stray cases from some Hi!!h Courts in which, either in ignorance of the legal position firmly settled by this Court in a string of authorities, or erroneously thinking that there is no arguable point of fact or\n\n(I) Crl. A. No. 145of1961 decided on March 25. 1963.\n\nlaw involved in an appeal under s. 410, Cr. P.C. from the judgment of Sessions Court, actually and prima facie raising arguable pomts on the question ot appreciation of evidence, appeals are dismissed in limine with one word \"d, missed\" without indicating its reasons. It is because of such cases that we consider it necess; uy once again to refer to some of the decisions of this Court in which the legal position has been declared and e-stated.\n\nln Mushtak Hussein v. The State of Bombay( 1) Mahajan J~ (as he then was) observed :\n\n\"With great respect we are however CO!litrained to observe that it was not right for the High Court -to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required considera'lion th0ugh we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this Court would appreciate it if in arguable cases the summary rejection order gives some indication ol the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion.\" In Bhagat Singh v. 'State Of Rajasthan(') Bhargava and Hegde JJ ., sent the case back for re-decision as the appeal had n dismissed summarily.\n\nThe same Bench in Vishwanath Shankar Beldar v. The State of Maharashtra(') adooted a similar course. The view expressed in Mush•ak Hussein (supra) was reiterated in K. K. lain v. State of Maharashtra(').\n\nIn Jiwan Prakash v. State of Maharashtra(•) this Court had drawn the attention of the High Courts to as many as 13 cases in which this Court had consistently sent the matters bak for re-hearing.\n\nIn Shaikh Mohd. Ali v. State of Maharashtra(') Shelat J.; soeaking for the Court aain emnhasised that a High Court would not be justified in dismissing summarily and with<'lut a speakinl? order an appeal raising arguable questions either factual or legal. Rofe•ence in this decision was made to Murhtak Hunein <•upra) and Jiwan Praka•h (supra).\n\nSi\".ce then O\" .several f'CC&<ions again this Court ha~ re•ffirm~ this view. The moll! recent dee!-· &ion in which this Court felt con•trai\"e<l to rem•\"d th~ ca•e to the Hi h Court for a fresh decision is Rajendrapaul Ramasaran\n\n(11 [1953) S.C.R. 809 .. 121 Crl. A. No. 3R or 1969 decided on September 17. 1969.\n\nm Crl. A. No 9S or 1969 decided on September 18. 1%9. 141 A.l.R. 1973 S:C. 243. (S) A.l.R. 1973 S.C 2'8.\n\n(6) (1972) 2 s.c.c. 784.\n\nMUSTAO AHMED v. GUJARAT (Dua, /.) 677\n\nDass Sharma v. The State of Maharashtra(''). In that decision various aspects have again been considered to impress upon the High Court the inexpediency and impropriety of disposing of with one word \"dismissed\" the appeals before it which raise arguable points.\n\nThe contention that, when the trial court records a well-reasoned judgment, then, even though arguable points on the question ol. credibility of witnesses arel raised, i1: is unnecessary for the Court of appeal to deal with all these points and record its own reasons for agreeing with the conclusions of the trial cou~. is unacceptable. The right of appeal conferred on a convicted person gives him a right to challenge the reasoning and finding on the appraisal of evidence both or!!_l and documentary by the trial court and unless the challenge can be held to be prima facie unimpressive and unarguabfo the High Court would be well-advised to go into the points canvassed and record its reasons. Such a course would be in accord with the statutory intendment, and also of assistance to this Court in more satisfactorily dealing with appeals under Art. 136 of the Constitution.\n\nThe judgment of the trial court in the present case clearly shows that in order to arrive at a safe conclusion the entire evidence en the record has to be closely scrutinised. The trial court devoted several pages for the purpose of proper appraisal of the evidence, discarding some of the contentions of the prosecuting counsel, as unsupportable on the material on the record.\n\nThat court also noticed some discrepancies in the evidence of some of the witnesses for the prosecution, considered them to the minor and, therefore. immaterial. Further found defects in the wor]>ing of the Railways as regards the movement of goods wagons and, according to the trial court, had !here been a proper system of checking and tallying at the relevant railway stations, what has unfortunately happened in the present case would perhaps have been avoided.\n\nOn appraisal of the evidence, the offences under ss. 467 and 468, I.P.C. )Vere held not proved, thre being no reliable evidence on those points. Again, on the actual fraudulent or dishonest use of forged documents also the trial court felt that the prosecution evidence fell short of the main ingredients and only an attempt had been made by the accused persons to use the forged documents with the result that they were acquitted of the charge under s. 471 _ I.P.C.\n\nThe trial court also seems to have taken into account the suspicious conduct of the appellants in coming to the conclusion about their guilt under s. 420, I.P.C. read with ss. 415 and 34. I.P.C. and under ss. 474/34, I.P.C.\n\nThis discussion clearly shows that the appellants were not unjustified in claiming to have the evidence on the record re-examined by the High Court\n\n(!) Crl. Appeal No. 264of1972 decided on February 23. 1973. ll-761 Sup.C. I. /74\n\nfor coming to iis own conclusions, of course, after considering the views of the trial court and giving due weight to that court's reasoning and conclusion. Recording ol reasons by the High Court for its conclusion on all the relevant aspee'ts was thus necessary because even the trial court had not completely and unr<:servedly accepted the evidence led by the prosecution and the charges pressed against the appellants. The points raised as disclosed in the petition of appeal could by no means be said to be unarguable. Without expressing any opinion on the merits of the case, we are constrained to allow this appeal and send the case back to the High Coul'I for a fresh decision in the light of the observations made above.\n\nHad the High Court recorded its reasons in support of the order dismissing the appeal perhaps this remand could have been avoided and the appellants saved the further delay in the :final disposal of their appeal by the High Court. The appeal is accordingly allowed and the case sent back for a ; fresh decision.\n\n<tC.\n\nAppeal allowed.", "total_entities": 90, "entities": [{"text": "MUSTAQ AHMED MOHED HUSSAIN\n\nMUKHTAR HUSSAIN ALI HUSSAIN", "label": "PETITIONER", "start_char": 0, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "MUSTAQ AHMED MOHED HUSSAIN MUKHTAR HUSSAIN ALI HUSSAIN", "offset_not_found": false}}, {"text": "THE STATE OF GUJARAT", "label": "RESPONDENT", "start_char": 57, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF GUJARAT", "offset_not_found": false}}, {"text": "March 13, 1973", "label": "DATE", "start_char": 79, "end_char": 93, "source": "ner", "metadata": {"in_sentence": "MUSTAQ AHMED MOHED HUSSAIN\n\nMUKHTAR HUSSAIN ALI HUSSAIN\n\nTHE STATE OF GUJARAT\n\nMarch 13, 1973\n\n(A. ALAGIRISWAMI, 1."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 96, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "A. 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Nayar, for the respondent."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4152, "end_char": 4155, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-In this appeal by special leave the short question requiring determination is whether the High Court of Gujarat was justified in dismissing in limine with one word \"dismissed\" the appellants' appeal against their conviction by the Sessions Judge, Jamnagar for offences under s. 420 read with ss."}}, {"text": "Sessions Judge, Jamnagar", "label": "COURT", "start_char": 4391, "end_char": 4415, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-In this appeal by special leave the short question requiring determination is whether the High Court of Gujarat was justified in dismissing in limine with one word \"dismissed\" the appellants' appeal against their conviction by the Sessions Judge, Jamnagar for offences under s. 420 read with ss."}}, {"text": "s. 420", "label": "PROVISION", "start_char": 4435, "end_char": 4441, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 511 and 34, 1", "label": "PROVISION", "start_char": 4452, "end_char": 4469, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 474", "label": "PROVISION", "start_char": 4485, "end_char": 4491, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4508, "end_char": 4525, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Railways", "label": "ORG", "start_char": 4930, "end_char": 4945, "source": "ner", "metadata": {"in_sentence": "Both the appellants were charged on five counts in the court of the Sessions Judge relating to offences, inter alia of forging railway receipts purporting to be valuable security, being in pos• session of forged receipts knowing them to be forged and of dishonestly or fraudulently using the forged receipts as genuine knowing them to be forged, in furtherance of 1 he common intention of cheating the Indian Railways or attempting to cheat them."}}, {"text": "7-8-71", "label": "DATE", "start_char": 5131, "end_char": 5137, "source": "ner", "metadata": {"in_sentence": "The points which arose lor determination in the trial court as statlld in its judgment were :\n\n\" ( l ) Whether the prosecution has proved that on or about 7-8-71 at Jam.nagar accused no."}}, {"text": "Jam.nagar", "label": "GPE", "start_char": 5141, "end_char": 5150, "source": "ner", "metadata": {"in_sentence": "The points which arose lor determination in the trial court as statlld in its judgment were :\n\n\" ( l ) Whether the prosecution has proved that on or about 7-8-71 at Jam.nagar accused no."}}, {"text": "Mustaq Ahmed Mohmed Hussein", "label": "OTHER_PERSON", "start_char": 5165, "end_char": 5192, "source": "ner", "metadata": {"in_sentence": "l Mustaq Ahmed Mohmed Hussein and accused no."}}, {"text": "Mukhtar Hussein Ali Hussein Sayed", "label": "OTHER_PERSON", "start_char": 5211, "end_char": 5244, "source": "ner", "metadata": {"in_sentence": "2 Mukhtar Hussein Ali Hussein Sayed in furtherance of c0mmon intention of both to cheat the Indian Railway by using forged\n\nJ : . .. ,"}}, {"text": "section 467", "label": "PROVISION", "start_char": 5509, "end_char": 5520, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "section 34", "label": "PROVISION", "start_char": 5531, "end_char": 5541, "source": "regex", "metadata": {"statute": null}}, {"text": "section 468", "label": "PROVISION", "start_char": 5880, "end_char": 5891, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 5902, "end_char": 5912, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5920, "end_char": 5937, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 471", "label": "PROVISION", "start_char": 6334, "end_char": 6345, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 6356, "end_char": 6366, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 474", "label": "PROVISION", "start_char": 6724, "end_char": 6730, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 6741, "end_char": 6751, "source": "regex", "metadata": {"statute": null}}, {"text": "J\"mnagar", "label": "GPE", "start_char": 6860, "end_char": 6868, "source": "ner", "metadata": {"in_sentence": "1 and 2 were at J\"mnagar and in furtherance of common intentfon of both \"f them to cheat Indian Railway attempted to cheat Western."}}, {"text": "section 420", "label": "PROVISION", "start_char": 7179, "end_char": 7190, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 7201, "end_char": 7211, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 511", "label": "PROVISION", "start_char": 7216, "end_char": 7222, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 7230, "end_char": 7247, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 420", "label": "PROVISION", "start_char": 7466, "end_char": 7472, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 511 and 34", "label": "PROVISION", "start_char": 7483, "end_char": 7497, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7499, "end_char": 7504, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 474", "label": "PROVISION", "start_char": 7738, "end_char": 7745, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "MUSTAQ AHMED V. GUJARA~", "label": "JUDGE", "start_char": 7904, "end_char": 7927, "source": "ner", "metadata": {"in_sentence": "J\n\n'''\"Ym•••·••\"'\"'\"''''\"\"T•'•f'\"f'f'\", f't'T'n:~tt~Ttl~~·~~~'[; jj; l;;; Tfr'j';'j~\n\nMUSTAQ AHMED V. GUJARA~ (D1ia, },) 673\n\nthe sentences were ordered to run concurrently."}}, {"text": "s. 410", "label": "PROVISION", "start_char": 9932, "end_char": 9938, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 418", "label": "PROVISION", "start_char": 9949, "end_char": 9955, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 421", "label": "PROVISION", "start_char": 10245, "end_char": 10256, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 10791, "end_char": 10799, "source": "ner", "metadata": {"in_sentence": "ln U. f. S. Chopra v. State.of Bombay( 1) Bhagwati J., speaking\n\n(11 (10551 2 S.C.R. 94."}}, {"text": "s. 421", "label": "PROVISION", "start_char": 10938, "end_char": 10944, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 421", "label": "PROVISION", "start_char": 11675, "end_char": 11681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 421", "label": "PROVISION", "start_char": 11825, "end_char": 11831, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 421", "label": "PROVISION", "start_char": 12354, "end_char": 12360, "source": "regex", "metadata": {"statute": null}}, {"text": "Allallabad High Court", "label": "COURT", "start_char": 12403, "end_char": 12424, "source": "ner", "metadata": {"in_sentence": "P.C.\n\nSinlilar view was taken by the Allallabad High Court as far back as 1886 in Queen Empress v. Ram Narain & Anr.(')."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 12816, "end_char": 12824, "source": "regex", "metadata": {"statute": null}}, {"text": "Uffilila Kanur", "label": "OTHER_PERSON", "start_char": 13331, "end_char": 13345, "source": "ner", "metadata": {"in_sentence": "The learned counsel Oil behalf of the State, Mrs. Uffilila Kanur."}}, {"text": "Kapur", "label": "OTHER_PERSON", "start_char": 14635, "end_char": 14640, "source": "ner", "metadata": {"in_sentence": "Mrs. Kapur, however, soon clarified her position by submitting that he only wanted to contend that in the present case this Court should not interfere with the High Court's judgment as there were no arguable or substantial points involved in the appeal and Mohd."}}, {"text": "Mohd. Ayub", "label": "OTHER_PERSON", "start_char": 14887, "end_char": 14897, "source": "ner", "metadata": {"in_sentence": "Mrs. Kapur, however, soon clarified her position by submitting that he only wanted to contend that in the present case this Court should not interfere with the High Court's judgment as there were no arguable or substantial points involved in the appeal and Mohd."}}, {"text": "Mohd. Ayub Abbas Raut", "label": "OTHER_PERSON", "start_char": 15347, "end_char": 15368, "source": "ner", "metadata": {"in_sentence": "In our view, Mohd."}}, {"text": "s. 421", "label": "PROVISION", "start_char": 16030, "end_char": 16036, "source": "regex", "metadata": {"statute": null}}, {"text": "March 25. 1963", "label": "DATE", "start_char": 16717, "end_char": 16731, "source": "ner", "metadata": {"in_sentence": "145of1961 decided on March 25."}}, {"text": "s. 410", "label": "PROVISION", "start_char": 16766, "end_char": 16772, "source": "regex", "metadata": {"statute": null}}, {"text": "article 136", "label": "PROVISION", "start_char": 17918, "end_char": 17929, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhargava", "label": "JUDGE", "start_char": 18106, "end_char": 18114, "source": "ner", "metadata": {"in_sentence": "In Bhagat Singh v. 'State Of Rajasthan(') Bhargava and Hegde JJ .,"}}, {"text": "Hegde", "label": "JUDGE", "start_char": 18119, "end_char": 18124, "source": "ner", "metadata": {"in_sentence": "In Bhagat Singh v. 'State Of Rajasthan(') Bhargava and Hegde JJ .,"}}, {"text": "Mush•ak Hussein", "label": "OTHER_PERSON", "start_char": 18331, "end_char": 18346, "source": "ner", "metadata": {"in_sentence": "The view expressed in Mush•ak Hussein (supra) was reiterated in K. K. lain v. State of Maharashtra(')."}}, {"text": "Shelat", "label": "JUDGE", "start_char": 18656, "end_char": 18662, "source": "ner", "metadata": {"in_sentence": "Ali v. State of Maharashtra(') Shelat J.; soeaking for the Court aain emnhasised that a High Court would not be justified in dismissing summarily and with<'lut a speakinl?"}}, {"text": "Murhtak Hunein", "label": "OTHER_PERSON", "start_char": 18904, "end_char": 18918, "source": "ner", "metadata": {"in_sentence": "Rofe•ence in this decision was made to Murhtak Hunein <•upra) and Jiwan Praka•h (supra)."}}, {"text": "Jiwan Praka•h", "label": "JUDGE", "start_char": 18931, "end_char": 18944, "source": "ner", "metadata": {"in_sentence": "Rofe•ence in this decision was made to Murhtak Hunein <•upra) and Jiwan Praka•h (supra)."}}, {"text": "Rajendrapaul Ramasaran", "label": "JUDGE", "start_char": 19160, "end_char": 19182, "source": "ner", "metadata": {"in_sentence": "recent dee!-· &ion in which this Court felt con•trai\"e<l to rem•\"d th~ ca•e to the Hi h Court for a fresh decision is Rajendrapaul Ramasaran\n\n(11 [1953) S.C.R. 809 .. 121 Crl."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 20552, "end_char": 20560, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 467 and 468", "label": "PROVISION", "start_char": 21478, "end_char": 21493, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 21495, "end_char": 21500, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 471", "label": "PROVISION", "start_char": 21880, "end_char": 21886, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 21889, "end_char": 21894, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 420", "label": "PROVISION", "start_char": 22044, "end_char": 22050, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 22052, "end_char": 22057, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 415 and 34", "label": "PROVISION", "start_char": 22069, "end_char": 22083, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 22085, "end_char": 22090, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 474", "label": "PROVISION", "start_char": 22102, "end_char": 22109, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 22114, "end_char": 22119, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1973_3_679_686_EN", "year": 1973, "text": "PHUL RANI & ORS.\n\nNAUBAT RAI AHLUWALIA\n\nMarch 14, 1973\n\n[J. M. SHELAT ANDY. V. CHANDRACHUD, JJ.]\n\nDelhi Rent Control Act-S. 14(1)(e)-Whether on the death of the plaintiff during pendency of-an ejectment application, the cause of acdon would survive to hi.9 legal representatives.\n\nThe plaintiff after two notice• to quit, filed an ejectment application against the defenda:nt under S. 14(l)(e) of the Delhi Rent Control Act 1958. The possession was sought on the ground of personal requirement, The _Additional Rent Controller, dismissed tbiet application on a preliminary ground of invalid notice.\n\nDuring the p<llldency of an appeal against that decision, the plaintiff died. Appellants 1 to 4 who are widow, son and two married daughters of the Qeceased, applied for being brought on the .record of the appeal as his legal representatives. The def<ittdant opposed that application on the ground that . the son and daughter of a deceased daughter of the plaintiff ought also to have been impleaded to the application, and since that was not done, the appeal had. abated. The Rent Control Tribunal allowed these two persons also to be impleded as appellants and remanded the ejectment application fo_r a decis'ion on merits. These heirs are now appellants 5 and 6. The second appeal filed by Ibo tenant against the order of remand was dismissed by the High Court.\n\nAs the order of remand passed by the Rent CoJttrol Tribunal wu not stayed. during the pendency of the second appeal, the Additional Rent COJDtroller proceeded .with t)le ejectment application and paaaed . ; an order of eviction against the tenant.\n\nThe tenant appealed against that deciskln and contended for the first time that the right to sue did not survive to the heirs of the plaintiff. The Rent Control Triblpl Tejected the contention and confirmed the . drder of eviction on merits. ln an appeal, the High Court took the view that the right to sue did not survive IO the heirs of the plain(df and on that ¥rouind dismissed the ejectment applicati0n. The correctness of that decision is challeng·\n\ned by the plaintiff's heirs before this Court. The question for decision was whether the cause of action could survive to his legal represcnta tives.\n\nDismissing the appeal, HELD : (i) In some cases '*'<Jer the rent Acts, the lllQJ(im actio personali! moritur cum persona bas been attempted to be applied on the death of a necessary party to a suit or proceeding. This oft-quoted maxim, however, is generally misunderstood. The plain. meaning of that common law 111axim is that a penonal action dies with the parties to the cause of action. Ito the preaent ca..,, it is obvious that the death of the plaintiff will not cause the ejectment ptoc•edings to abate if the right to sue survives. That is the formula contained in Order 22, Rule 1 of the. Code of Civil Procedure. [681FO, 6820] However, from the pleadings in the ejectment application, the pl•intllf has founded his right to relief on hD personal requireme, t>t.\n\nSo, if the appellants were pennitted to continue the proceedings, the 114 will assume a complexion wholly beyond the compass of the original cause of action, and without a fundamental alteration of the pleadings,· the appellanta would not be able to continue the proceedings. There fore, the appeal must fail.\n\n[683CJ\n\nMoiilal Pannalal v. Kai/ash Narain, A.LR. 1960 M.P. 134; Amar Nath Bihari v. Jai Dayc.I Puri 1971 (7) Delhi Law .'.fimes 363; S1J1t. Dhan Devi and Anr. v. Bakshi Ram and Anr., A.LR. 1969 Punjab & Haryana 270; Vas Dev v. Sohan Singh.& Ors. [1968] 40 Delhi Law Times 392; Dr. Muhammad Ibrahim v. Rehamin Khan & Ors., [1947] 2 M.L.J. 419; ond Rameswar Dayal & Ans. v. Sohankil & Anr., [1963] A.L.J. 198, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1879 of 1971.\n\nAppeal by special leave from the Judgment and order dated May 24, 1971 of the Delhi High Court at New Delhi in S.A. No. 178 0f 1970.\n\nBishan Narain and .0. N. Mahindroo for the appellant.\n\nP. N. Lekhi and M. K. Garg, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-The plaintiff, who in a Rent-Act applic~- tion against his tenant sought possession of certain premises on D the ground of personal requirement, died pending the application.\n\nThe question for decision is whether the cause of action would survive to his legal representatives or whether, as contended by the tenant, the application must abate.\n\nOn June 28, 1962 a flat at New Rajinder Nagar, New Delhi was leased by the plaintiff to the defendant. On failure of the de- E fondant to comply with two notices to quite plaintiff filed an ejectment application under seclion 14 ( 1 )( e) of the Delhi Rent Control Act, 1958 (\"the Act\"). Possession was sought from the tenant on the ground that the premises were required by the plaintiff \"for occupation as a residence for himself and members of his . family\".\n\nThe Additional Rent Controller, Delhi, dismissed the application on the preliminary ground that the notices to quit were not valid.\n\nPlaintiff filed an appeal against that decision but during its pendency he died on August 22, 1968. Appellants 1 to 4 who are the widow, son and two married daughters of the plaintiff applied for being brought on the record of the appeal as his legal representatives.\n\nThe tenant opposed that application on the narrow ground that the son and daughter of a deceased daughter of the plaintiff ought also to have been impleaded to the application and since that was not done, the appeal had abated. By its order dated December 13, 1968 the Rent Control Tribunal, which was seized of the appeal allowed these two persons also to be impleaded as appell3ll!s. By a further order dated January 2, 1969 the Tribunal set aside the decision recorded by the Additional Rent Controller on the preliminary issue and remanded the ejectment application for a decision on merits. These two \"heirs\"' are now appellant 5 and 6. Second appeal 107 of 1969 filed by the tenant against the order of remand,; was dismissed by the High Court of Delhi on February 20, 19'70. ·\n\nAs the order of remd passed by the Rent Control Tribanal was not stayed during''.the pendency of the Second Appeal, the Additional Rent Controller proceeded with the ejectment appli-'.\n\ncation and had in t_h\"e meanwhile passed an order of eviction against the tenant. By his judgment of February 14, 1969 he held that the plaintiff's widow (appellant 1), his son ( appel!.uit 2), the son's wife and three minor daughters of tl)at couple re- quired the premises bona-fide for their occupation. ' .\n\nI ' The tenant appealed against that decision and contended for the first time in appeal that the right to sue did nc; it survive to the heirs of the plaintiff. The Rent Control Tribunal rejected that contention and confirmed the order of eviction on merits.\n\nIn an appeal filed by the tenant (S.A.O. No. 17g-·:of 1970) the High Court of Delhi took the view that the pght to sue '.did I not survive to the heirs of the plaintiff and on _that ground it ·· dismissed the ejectment application, leaving i:t open to the heirs to bring a fresh proceeding founded on their own requiremmts.\n\nThe correctness of that decision is challenged by the plaintiff's heirs in this appeal 1jy special leave.\n\nThe survival of the right to sue on the death of a plaintiff is a problem that has often to be solved on a permutation of several facts and circumstances. But it would be out of place in this judgment to embark upon an abstract disquisition of the que:; tion as to in what classes of cases, the right to sue survives in favour of the legal representatives. In some cases undr the Rent Acts, the ma.'tiru actio-persona/is moritur cum persona h_as been attemp ted to be applied on the death of a necessary party to a suit or proceeding but that oft-quoted maxim is oft misunlierstood. The plain meaning of that common law maxim is that a personal ction dies with the parties to the cause of action.\n\nIts purort, until sweeping changes were made in the previous law by the Law Reform (Miscellaneous Provisions) Act, 1934 was that no executor or administrator could, subject to certain exceptions, sue er. be sued (or any tort committed against or by the deceased . in his life-time. The action for a tort had to be Hegun in the joint\n\nlife'time of Pie wrongdoer and the person injured. (See Salmond on the Law of Torts 15th Edn. p 569; Halsbury Laws of England 3rd Edn. Vol. 16 p. 483 paragraph 985).\n\nNor do we find relevance in th~ provisions of section 306 of the Indian Succession Act, under which all !lemands whatsoever . and all rights to prosecute or defend any action or pecial procP.eding existing in favour of or against a person at the time ol his' A decease, survive to and against his executors or administrators; except causes of action for defamation and assllult, or other personal injuries not causing the death of the party and except also cases \"where, after the death of the party, the relief sought could not be enjoyed\" or granting it would be nugatory. We can duly press iQto service and that too indirectly, the analogy of the first part otthe last excepion in an effort to find whether. after the death of the plaintiff in the instant case the relief sought could not be enjoyed by his legal representatives.\n\nThough the plaintiff died during the pendency of ti\\e appeal, it is as if he died during the pendency of the suit because the suit was dismissed on a preliminary issue concerning the validity of the notices to quit and was remanded in appeal for trial on the merits. It is patent and would be a truism to say that th.l death of the plaintiff will not cause the ejectment proceedings to abate if the right to sue survives.\n\nThat is the formula contained in Order 22 Rule 1 ol the Code of Civil Procedure, a formula simple in its wording but 1;1ot simple in its application. The ''right to sue\"\n\nas said succinctly in Saraj Chandra v. Nani Mihan('r) means 'the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his' i:leath\". Thus contracts involving the exercise of special skill like a promise to paint a picture <!.o not bind the the . representatives of the promisor nor do\n\nthey create in them a right thai can survive the death of the promisor.\n\nThe solution to the problem whether the appellants can continue the proceedings in their capacity as the legal representatives of the plaintiff lies in the pleadings of the plaintiff for thoso alone can reveal the true nature of the right asserted 1iy the plaintiff in the ejectment proceedings.\n\nIn column 18 (a) of the efectment application the ground for evicting the tenant is stated thus :\n\n\"The premises are required bonafide by the petitioner for occupation as a residence for himself and members of his family and that the petitioner has no other reasonable suitable residential accommodation.\"\n\nIn column 19, the \"other relevant infonnation\" is stated to be G that the plaintiff had a large family consisting of his wife, son, daughter-in-law and 3 minor grand-daughters, and that the family had only 2 rooms in its possession, which were wholly inadequate for its requirements.\n\nThus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his H requirement, or to use an expression which will effectively bring\n\nII) 36 Cal. 799 at p, 801.\n\n•...\n\nout the real point, his personal requirement. If the ejectment application succeeds-we will forget for a moment that the plaintiff is dead-the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded ih the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perjsh with the plaintiff.\n\nIf the appellants were permitted to continue the proceedings, the /is will assume a complexion wholly yond the compass of the original cause of action. Indeed, it is difficult to see how, without a fundamental alteration of the pleadings, appellant~ could continue the proceedings. Such an alteration will fall beyond the scope cf amendment of pleadings, permissible under a most liberal interpretation of order 6, Rule 17 of the Code of Civil procedure.\n\nPlaintiff, who owned the premises, was entitled under section 14(1)(e) of the Act to ask for possession thereof on the ground that his wife and the other members of his family dependent on him must live with him but that there was not enough space at his disposal to accommodate them.\n\nSection 14(l)(e) provides t<> the extent material for the present purposes, that the Controller may make an order for possession on the ground \"that the premises let for residential purposes are required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof. ......• and that the landlord. . . . . . . . has no other reasonably suitable residential accommodation\". If the plaintiff were alive, the main issues for determination in the ejectment proceedings would have been : ( 1 ) whether the plaintiff requires the premises for his occup- ation and for the occupation of his• wife, son, daughter-in-law and 3 grand-children; (2) whether the aforesaid requirement is bonafide and (3) whether the plaintiff has no other reasonably suitable residential accommodation.\n\nThe appellants' emergence in the proceedings will require the determination of wholly different and distinct issues. Their requirements, not that of the plaintiff, and the availability to them-not to the plaintiff-of other reasonably suitable residential accommodation will now form the centre of conflict. It is relevant on this aspect to remember that amongst the appellants are 2 married daughters of the deceased plaill'tiff and 2 children of a deceased daughter of his. Their requirement would be basically different from that of the plaintiff and an examination of facts and circum&tances in regard thereto will open up a new vista of inquiry. The plaintiffs right to sue will thereafter not sllrvive to the appellants and they cannot glean the benefit of the original right to sue.\n\nSeveral decisions were cited b:fore us but those falling within the following categories are to be distinguished :\n\n(i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour; say, during the pendency of an appeal filed by the unsuccessful tenant;\n\n(ii) cases in which the death of the decree-holder landlord was pleaded as a defence in execution proceedings; and\n\n(iii) cases in which, not the plaintiff but the. defendant-tenant died during the pendency of the proceedings and the tenant's heirs took the plea that the ejectment proceedings cannot be continued against them.\n\nCases of C.he first category are distinguishable becase the decisions therein are explicable on the basis, though not always so expressed, that the estate is entiiled to the benefit which, under a decree, has accrued in favour of the plaintiff and therefore the legal representatives are entitled to defend further proceedings, ILke an appeal, which constitute a challenge to that benefit.\n\nJn Motilal Pannalal v. Kai/ash Narain, (') for example the landlord who had obtained a decree for possession on the ground of personal necessity under section 4(g) of the Madhya Bharat Control of Accommodation Act, 1955 died during the pendency of the appeal filed by the tenant. It was held 1hat the decree would ensure for the benefit o[ his son and widow. In Amar Nath Rihari v. Jai Dayal Puri(') the death of the landlord occurred after the Rent Control Tri1*Jnal had held in appeal, reversing the judgment of the Controller, that the premises were required by , the landlord for the use of himself and his wife under section 14 (1 )( e) of the Act. It was held that the wife was a member of the landlord's family and as \"the need of the landlord for the premises was assessed to be both for himself and his wife\",_ the cause of action consisted of the need of both and therefore it survived to the widow.\n\nThe judgment of the High Court in the instant case was cited before the learned single Judge but was distinguished by him on the ground that the requirements of the legal representatives here were not determined by the Controller. prior to the death of the plaintiff. The point pf distinction could be that the decree for possession passed in favour of the landlord could be defended by his legal representatives for the bj:neflt of his estate.\n\nIn Smt. Dhan Devi and Anr. v.\n\nBakhshi Ram and Anr. (') an application for ejectment was filed by the landlord under the\n\n(1) A.l.R. 1960 M.P. 134.\n\n(2) 1971 (7) Delhi Law Times 363.\n\n(3) A.J.R, 1969 Pb, & Haryana 270,\n\nEast Punjab Urban Rent Restriction Act, 1949. The ground on which possession was sought by the landlord was that he required the land for his own use as he wanted to construct a building for the purpose of his office. The Rent Controller allowed the application and the appeal filed. by the tenant against that decision was dismissed by the District and Sessions Judge.\n\nThe tenant then B filed a r11visional application to the High Court, during the pendency of which the landlord died.\n\nOn the tenant's application the widow and an adopted son of the landlord wer~ brought on the record but it was urged on behalf of the tenant that the ground of ejectment was personal to the landlord and therefore the applic\n\ncation for ejectment had abated on his death.\n\nThis contention was iejected on the ground that the word \"landlord\" in the East Punjab Act includes his successors-in-interest and that the rights of a landlord-decree-holder nnder an order of eviction obtained by him are heritable and devolve after his death on his legal representatives.\n\nCases of the second category are distinguishable because the decisions therein are, by and large, based on the principle that an executing court has no jurisdiction to go behind the decree. It must execute the dree as it finds it, save in exceptional cases as, for example, where the decree on the face of it is without jurisdiction.\n\nIn Vas Dev v. S. Sohan Singh & Ors.( 1) a case under section 14(1)(e) of the Delhi Rent Control Act, the landlord obtained an order of eviction on the ground of personal requirement but he died before the order for eviction could be executed. His ROns\n\nand daughters filed an execution application, to which the tenants ra.ised an objection that the order of eviction ing personal to the landlord, was incap'able of execution after his death. It was held I' by a learned single Judge that the provisions of section 14(1 )(e) have to be satisfied at the time of the passing of the order ,, f eviction and that the executing court had no right to go behind\n\nthe decree in order to find out whether the requirement continue at the time ot execution. A contrary decision in Dr. Muhammad Ibrahim v. Rahiman Khan and Ors. (2 ) may be said to tum on the G peculiar language of the particular provision of the Madras House Rent Control Order, 1945.\n\nCases of the third category are governed by totally different considerations.\n\nThe landlord's right to evict the tenant on the grounds available under the Rent Act docs not come to an end with the death of the tenant. That right is enlorceabile against H those in whom the tenant's interest resides for the time being. In Rameshwar Dayal and Anr. v. (Smt. Mohania Died) After her\n\n(I) 1968 (4) Delhi Law Times 391.\n\n(2) 1947 (2) M.LJ.\n\nSri Sohan Lal and Anr. (') which was a case linder the U.P.\n\n(Temporary) Control of Rent and Eviction Act, 1947 the landlords obtained permission under section 3 of that Act to bring a suit for ejectment on the ground that , the shops in possession Of the tenant were in a dilapidated condition and required reconstruction. The landlords thereafter brought a suit, during the pendency of which lhe tenant died. The tenant's son and widow were then brought on the record but the suit was dismissed on the ground that the notice to quit was defective. The landlords brought another suit against the son and widow without obtaining a fresh permission under section 3. It was held that the suit could be filed against the heirs on the basis cl the permission obtained against the tenant Clearly, the permission to evict related to the condition of the premises which did not change with the death of the tenant.\n\nWe have referred to some of the decisions in the three categories, not with a view to de<termining their correctness but only in order to show that they rest on different principles or could be explained in reference to such principles. We are concerned with a mattr not involving the application of any of those principles.\n\nFor reasons already stated, we are of the view that considering the nature of the claim made in the instant case and the '*1ndle of facts which constitute the plaintiff's cause of. action, ))is right to sue will not survive to his legal representatives.\n\nIn the result, the appeal fails but there will no order of costs.\n\ns.c.\n\nAppeal 'dismissed.\n\nCl) 1963 A.L.J. 198.", "total_entities": 46, "entities": [{"text": "PHUL RANI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "PHUL RANI & ORS", "offset_not_found": false}}, {"text": "NAUBAT RAI AHLUWALIA", "label": "RESPONDENT", "start_char": 18, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "NAUBAT RAI AHLUWALIA", "offset_not_found": false}}, {"text": "March 14, 1973", "label": "DATE", "start_char": 40, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "NAUBAT RAI AHLUWALIA\n\nMarch 14, 1973\n\n[J. M. SHELAT ANDY."}}, {"text": "M. SHELAT ANDY. V. CHANDRACHUD, JJ.", "label": "JUDGE", "start_char": 60, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Delhi Rent Control Act", "label": "STATUTE", "start_char": 98, "end_char": 120, "source": "regex", "metadata": {}}, {"text": "S. 14(1)(e)", "label": "PROVISION", "start_char": 121, "end_char": 132, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act", "statute": "Delhi Rent Control Act"}}, {"text": "S. 14(l)(e)", "label": "PROVISION", "start_char": 382, "end_char": 393, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act", "statute": "Delhi Rent Control Act"}}, {"text": "Delhi Rent Control Act 1958", "label": "STATUTE", "start_char": 401, "end_char": 428, "source": "regex", "metadata": {}}, {"text": "Order 22, Rule 1", "label": "PROVISION", "start_char": 2794, "end_char": 2810, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 2819, "end_char": 2842, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S1J", "label": "PROVISION", "start_char": 3439, "end_char": 3442, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3728, "end_char": 3756, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 3925, "end_char": 3938, "source": "ner", "metadata": {"in_sentence": "Bishan Narain and .0."}}, {"text": "N. Mahindroo", "label": "LAWYER", "start_char": 3947, "end_char": 3959, "source": "ner", "metadata": {"in_sentence": "N. Mahindroo for the appellant."}}, {"text": "P. N. Lekhi", "label": "LAWYER", "start_char": 3980, "end_char": 3991, "source": "ner", "metadata": {"in_sentence": "P. N. Lekhi and M. K. Garg, for the respondent."}}, {"text": "M. K. Garg", "label": "LAWYER", "start_char": 3996, "end_char": 4006, "source": "ner", "metadata": {"in_sentence": "P. N. Lekhi and M. K. Garg, for the respondent."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 4073, "end_char": 4084, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-The plaintiff, who in a Rent-Act applic~- tion against his tenant sought possession of certain premises on D the ground of personal requirement, died pending the application."}}, {"text": "June 28, 1962", "label": "DATE", "start_char": 4437, "end_char": 4450, "source": "ner", "metadata": {"in_sentence": "On June 28, 1962 a flat at New Rajinder Nagar, New Delhi was leased by the plaintiff to the defendant."}}, {"text": "New Delhi", "label": "GPE", "start_char": 4481, "end_char": 4490, "source": "ner", "metadata": {"in_sentence": "On June 28, 1962 a flat at New Rajinder Nagar, New Delhi was leased by the plaintiff to the defendant."}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 4680, "end_char": 4708, "source": "regex", "metadata": {}}, {"text": "Additional Rent Controller, Delhi", "label": "RESPONDENT", "start_char": 4901, "end_char": 4934, "source": "ner", "metadata": {"in_sentence": "The Additional Rent Controller, Delhi, dismissed the application on the preliminary ground that the notices to quit were not valid."}}, {"text": "August 22, 1968", "label": "DATE", "start_char": 5113, "end_char": 5128, "source": "ner", "metadata": {"in_sentence": "Plaintiff filed an appeal against that decision but during its pendency he died on August 22, 1968."}}, {"text": "December 13, 1968", "label": "DATE", "start_char": 5546, "end_char": 5563, "source": "ner", "metadata": {"in_sentence": "By its order dated December 13, 1968 the Rent Control Tribunal, which was seized of the appeal allowed these two persons also to be impleaded as appell3ll!s."}}, {"text": "January 2, 1969", "label": "DATE", "start_char": 5710, "end_char": 5725, "source": "ner", "metadata": {"in_sentence": "By a further order dated January 2, 1969 the Tribunal set aside the decision recorded by the Additional Rent Controller on the preliminary issue and remanded the ejectment application for a decision on merits."}}, {"text": "High Court of Delhi", "label": "COURT", "start_char": 6038, "end_char": 6057, "source": "ner", "metadata": {"in_sentence": "Second appeal 107 of 1969 filed by the tenant against the order of remand,; was dismissed by the High Court of Delhi on February 20, 19'70. ·"}}, {"text": "February 20, 19'70", "label": "DATE", "start_char": 6061, "end_char": 6079, "source": "ner", "metadata": {"in_sentence": "Second appeal 107 of 1969 filed by the tenant against the order of remand,; was dismissed by the High Court of Delhi on February 20, 19'70. ·"}}, {"text": "February 14, 1969", "label": "DATE", "start_char": 6371, "end_char": 6388, "source": "ner", "metadata": {"in_sentence": "By his judgment of February 14, 1969 he held that the plaintiff's widow (appellant 1), his son ( appel!.uit 2), the son's wife and three minor daughters of tl)at couple re- quired the premises bona-fide for their occupation. ' ."}}, {"text": "Salmond", "label": "OTHER_PERSON", "start_char": 8362, "end_char": 8369, "source": "ner", "metadata": {"in_sentence": "See Salmond on the Law of Torts 15th Edn."}}, {"text": "section 306", "label": "PROVISION", "start_char": 8519, "end_char": 8530, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Succession Act", "label": "STATUTE", "start_char": 8538, "end_char": 8559, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 22 Rule 1", "label": "PROVISION", "start_char": 9763, "end_char": 9778, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9782, "end_char": 9809, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "order 6, Rule 17", "label": "PROVISION", "start_char": 12366, "end_char": 12382, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil procedure", "label": "STATUTE", "start_char": 12386, "end_char": 12413, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 14(1)(e)", "label": "PROVISION", "start_char": 12470, "end_char": 12486, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(l)(e)", "label": "PROVISION", "start_char": 12702, "end_char": 12718, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(g)", "label": "PROVISION", "start_char": 15520, "end_char": 15532, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Bharat Control of Accommodation Act, 1955", "label": "STATUTE", "start_char": 15540, "end_char": 15588, "source": "regex", "metadata": {}}, {"text": "section 14", "label": "PROVISION", "start_char": 15991, "end_char": 16001, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Bharat Control of Accommodation Act, 1955", "statute": "the Madhya Bharat Control of Accommodation Act, 1955"}}, {"text": "East Punjab Urban Rent Restriction Act, 1949", "label": "STATUTE", "start_char": 16946, "end_char": 16990, "source": "regex", "metadata": {}}, {"text": "section 14(1)(e)", "label": "PROVISION", "start_char": 18386, "end_char": 18402, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1 )(e)", "label": "PROVISION", "start_char": 18840, "end_char": 18857, "source": "regex", "metadata": {"statute": null}}, {"text": "Sohan Lal", "label": "OTHER_PERSON", "start_char": 19715, "end_char": 19724, "source": "ner", "metadata": {"in_sentence": "Sri Sohan Lal and Anr. (')"}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 19784, "end_char": 19822, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 19863, "end_char": 19872, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "section 3", "label": "PROVISION", "start_char": 20365, "end_char": 20374, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}]}
{"document_id": "1973_3_687_690_EN", "year": 1973, "text": "PATIRAJI\n\nMAMTA & OTHERS\n\nMarch 15, 1973\n\n[J. M. SHELAT AND Y. V. CHANDRACHUD, JJ.]\n\nU.P. Zamindarl Abolition and Land Reforms Act, 1950, s. 20(b)(i)- AdivlJSI rights under-Who is entitled to.\n\nThe appellant filed a suit under s. 20(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, on the basis that her name was recorded as an occupant in the Khasra of 1356 Fasli, that she bad therefore become an Adivasi, and was consequently entitled to p<l680S8ion of the la!!ds from which she was unlawfully dispossessed by the respondent& The suit was dismissed but was allowed in appeal by the Additional Com missioner.\n\nA further appeal by the r.Spondents to the Board of Revenue having been dismissed, they filed a writ petition in the High Court which was allowed on the ground that the entry in favour of the appellant was for a part of the year only and that therefore she was not entitled to the Adivasi rights.\n\nDismissing the appeal to this Court,\n\nHELD : Under the section the Adivasi rights can be claimed by those persons only who are recorded as o=p.,, ts for the whole of the Fasli year\n\n1356. The rights conferred by the section are available also to trespassers.\n\nIt could not have been the policy of the Act that everyone of thooe fleeting trespassers who might be found in occupation at the time of the tri annual inspections, should be given recognition and be made eligible for the acquisition of Adivasi rights. It is neither logic nor good sense that the last entry-holder should be so recognised, because, such a construction would on1y encourage greater lawlessnes~ amongst trespassers, every one of whom will make a frantic attempt to be last in the queue. Therefore, there is no justification for construing the provision with greater liberality , than the language warrants. Special rigllts having been conferred by the Act they ought to be subject to the special Jimitatioos imposed by t~\n\nAct.\n\n[689CD, A; 690AB]\n\nThe Fasli year 1356 commenced on July I, 1943 and ended on June 30, 1949; and the appellant's name was entered as an occupant only from February 24, 1949. As the entry doea not show that the appellant was in occupation of the land throughout the year she was not entitled to the Adivasi rights under the section.\n\n[690E]\n\nShyam Sunar Lal v. Mangali and Or!., [1963] A.L.J. 286, Ram Chander and A.nr. v. Chootu 19'57 A.L.J. 24 (Revenue) and Glrdhari v.\n\nRaghubir Singh etc. 1958, A.L.J. 183 (Revenue) approved.\n\nCIVIL APPELLATE JURISDICTION ; Civil Appeal No. 1324 of 1967.\n\nAppeal by special leave from the judgment and order dated October 31, 1966 of the Allahabad High Court in Special Appeal\n\nNo. 344 of 1966.\n\nJagdish Swarup and R. K. Bhatt, for the appellant\n\nC. B. Agarwala and C. P. Lal, for the respondents.\n\n~BB\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-The question which arises for considera- 1ion in this appeal is whether rthe appellant Patiraji is entitled to the\n\n\"'Adhivasi\" rights under section 20(b)(i) of the U.P. Zam\\ndari Abolition and Land Reforms Act, 1950 (\"the Act\").\n\nOne Ram Adhar and the respondents were co-tenants of certain lands srtuated at Bibiganj, District Sultanpur. On the death of Ram Adhar on February 24, 1949 the appellant took proceedings under the U.P. Tenancy Act, 1939 for a declaration that she was the widow of Ram Adhar and as such, had become a co- . tenant along with the respondents.\n\nThe appellant succeeded before the Assistant Collector but in appeal, the Additional Commissioner and then fue Board of Revenue took a contrary view, holding that the appellant was not the widow of Ram Adhar. The judgment of the Board of Revenue is dated July 1, 1954.\n\nIn the meanwhile, the Act had come into force on July 1,\n\n1952. The appellall!I then brought the present suit, treated as one under section 20(b) read with secltion 232 of the Act. The case of the appellant is that her name was recorded as an occupant i11 the Khasra of 1356F, that she has therefore l)ecome an Adhivasl under section 20(~) (i) and is consequently entitled to possession <>f the lands from which she was unlawfully dispossessed by the respondents. The trial court dismissed the suit but the Add, itional Commissioner allowed Patiraji's appeal and decreed her suit. Res'\n\npondents carried an appeal against '.he decision of the Additional Commissioner to the Board of Revenue but that appeal was dis' missed.\n\nThe respondents then filed a writ petition in the High Court of Allahabad, which was allowed by a learned single Judge of that court. He held that. the entry in favour of the appellant appeared in the Khasra of' 1356F for a part of the year only and therefore she was not entiled to the Adhivasi rights. Special Appeal No. 344 of 1956 against'the judgment was dismissed by a Division Bench in limine on October 31, 1956. This is an appeal by special leave against that decision.\n\nThe sole foundation of the appellant's claim is an entry which appears in the Khasra of 1356F, which is to the following effects-\n\n\"Ram Adhar Pandey Bakasht Waris Baqa biz Smt.\n\nPatraji Motwafli Bewa Ram Adhar P anedv Tarikh 24-2-49 Se\", that is to say \"Ram Adhar Pande in cultivation heir in possession Smt. Patiraji widow of deceased Ram Adhar Pandey from 24-2-49\".\n\nThe importance of this entry consists in the special benefit which such entries confer under section 20(b)(l) of the Act :\n\n\"20. Every person who ............. .\n\nPATIRAJI v. MAMTA (Chandrachud, J.) 68&\n\n(b) was recorded as occupant\n\n(i) of any land ........ in the Khasra or Khatauni al 1356F. . . . . . . . shall ..... . be called Adhivasi of the land and shall, subject to the provisions of thjs Act, be entitled to take or retain possession thereof.\"\n\nNone of the four explanations to section 20 is relevant for the present purpose.\n\nLooking at the provision contained in section 20(b){i), it seems \"> us plain that the Adhivasi rights can be claimed by those persons only who are recorded as occupants for t!ie whole of the Fasli year 1356. It is important to remember that ithe rights conferred by section 20(b ){i) are available even and mostly to trespassers.· Clearly therefore, there is, in the first i, nlllance, .no justification for construing the provision with greater liberality than thelanguage IJlllfrants. Special rights conlerred by the Act ought to be subject to the special limitations imposed by the Act.\n\nApart from this aspect, any other view of section 20(b)(i) would make it unworkable in practice and would set the pace for lawlessness amongst trespassers. If different persons 'are in occupation of a land during different parts of the year, whom shall the court recognise as an Adhivasi and by what test shaH the court pick and choose ? Under the Uttar Pradesh Land Records Manual, the Lekhpal, has to make three field-to-field inspections of every village in his halka, beginrung respectively on August 15th, January 15th1and April 15th cl every year. (Rule A-55). On the basis of these inspections, the Lekhpal has to make entries in the 'Khasra', that is to say in the field-book, in form No. P-A-3\n\n(Rule' A-60). If a person other than a tenure-holder as classified in Part I or Part II of the Khatauni, is found to be in actual occupation, his name is to be recorded in the 'Remarks' column (column No. 21) as \"baqabza so and so\" (Rule A-71, para 3). It may so happen, and decided cases show that it does so happen, that different persons are found to be in possession of a land at the time of the tri-annual inspeotiQns. The Lekhpal has to enter their names as occupants, mar be in the remarks columri, but the picture emerging at the close of the year will reveal that different persons were in occupation of the land-some one during the Kharif season, some one during the Rabi season and some one probably\n\ntaking charge, on the sly, of a /Jona vacantia. When the trujl owner is away, the trespassers will play and the law which governs then1 is might'is right. It cannot be the policy of the Act that everyo11e of these fleeting trespassers must find recognition and be made eligible for the acquisition of Adhivasi rights. None of them, in .\n\nour opinion, can qualify for these valuable rights. It was urged\n\n690 SUPREME COURT REPOl'-TS (1973] 3 s.c.R.\n\nthat 1he last entry-holder should be recognised as an occupant to the exclusion of others but there is' neither logic nor good sense in such a course. The last holder may have been in possession for a fra<ltional part of the year and such possession may adventitiously coincide with the April visit of the Lekhpal.\n\nBesides, such a -construction, as said already, will only encourge greater lawlessness amongst trespassers.\n\nEvery one of them will make a fra11tic attempt to be last in the queue.\n\nRightly therefore, the High Court of Allahabad and the Board of Revenue; U.P. have been uniformly taking the view that the right conferred by section 20(b)(i) can be availed of by those persons only who are recorded as occupants for the entire Fasli year 1356 and not by those who are recorded as occupants for a part of 'i:he year. (See Shyam Sunar Lal v. Mangali and Ors. (1) Ram Chander and Anr. v. Chhotu;( 2 ) Girdhari v. Raghuir Singh .etc.(8 ) It would seem that the Board of Revenue struck a discorda.nt note in the instant case only, but it is necessary to point out that the Board rested its decision on the circumstance that the appellant was the \"sole heir\" of Ram Adhar. In making that assumption the Board was in error, because in the earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced on other line of heirship.\n\nIt is clear from the entry on which the appellant relies that her name was entered as an occupant as from February 24, 1949.\n\nThe Fasli year 1356 concerned on July 1, 1948 and en<)ed on June 30, 1949. As the entry does not show that the appellant was in occupation of the land iliroughout the year, she is nqt entitled to the Adhivasi rights under section 20(b) (i) of the Act.\n\nSome attempt was made to contend that the appellant was shown as a joint occupant along with the Adhar during the life time of the latter and therefore she must be held to have been in possession for the whole year. An uncertified copy of the entry to which counsel drew our attention does not bear out this submission and in fact such a contention was never raised at any earlier stage. .\n\nIn the result we confirm the judgment of the High Court and -dismiss the appeal with costs.\n\nV.P.S.\n\n(t) 1963 A.L.J. 286.\n\n(2) 1957 A.L.J. 24 (Revenue).\n\n(3) 1958 A.LI. 183 (Revenue).\n\nAppeal dismissed.", "total_entities": 43, "entities": [{"text": "PATIRAJI", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "PATIRAJI", "offset_not_found": false}}, {"text": "MAMTA & OTHERS", "label": "RESPONDENT", "start_char": 10, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "MAMTA & OTHERS", "offset_not_found": false}}, {"text": "March 15, 1973", "label": "DATE", "start_char": 26, "end_char": 40, "source": "ner", "metadata": {"in_sentence": "PATIRAJI\n\nMAMTA & OTHERS\n\nMarch 15, 1973\n\n[J. M. SHELAT AND Y. V. CHANDRACHUD, JJ.]"}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 46, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD, JJ.", "label": "JUDGE", "start_char": 60, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Zamindarl Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 90, "end_char": 136, "source": "regex", "metadata": {}}, {"text": "s. 20(b)(i)", "label": "PROVISION", "start_char": 138, "end_char": 149, "source": "regex", "metadata": {"linked_statute_text": "Zamindarl Abolition and Land Reforms Act, 1950", "statute": "Zamindarl Abolition and Land Reforms Act, 1950"}}, {"text": "s. 20(b)(i)", "label": "PROVISION", "start_char": 227, "end_char": 238, "source": "regex", "metadata": {"linked_statute_text": "Zamindarl Abolition and Land Reforms Act, 1950", "statute": "Zamindarl Abolition and Land Reforms Act, 1950"}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 251, "end_char": 297, "source": "regex", "metadata": {}}, {"text": "June 30, 1949", "label": "DATE", "start_char": 2009, "end_char": 2022, "source": "ner", "metadata": {"in_sentence": "[689CD, A; 690AB]\n\nThe Fasli year 1356 commenced on July I, 1943 and ended on June 30, 1949; and the appellant's name was entered as an occupant only from February 24, 1949."}}, {"text": "February 24, 1949", "label": "DATE", "start_char": 2086, "end_char": 2103, "source": "ner", "metadata": {"in_sentence": "[689CD, A; 690AB]\n\nThe Fasli year 1356 commenced on July I, 1943 and ended on June 30, 1949; and the appellant's name was entered as an occupant only from February 24, 1949."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2461, "end_char": 2489, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION ; Civil Appeal No."}}, {"text": "Jagdish Swarup", "label": "LAWYER", "start_char": 2664, "end_char": 2678, "source": "ner", "metadata": {"in_sentence": "Jagdish Swarup and R. K. Bhatt, for the appellant\n\nC. B. Agarwala and C. P. Lal, for the respondents."}}, {"text": "R. K. Bhatt", "label": "LAWYER", "start_char": 2683, "end_char": 2694, "source": "ner", "metadata": {"in_sentence": "Jagdish Swarup and R. K. Bhatt, for the appellant\n\nC. B. Agarwala and C. P. Lal, for the respondents."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 2715, "end_char": 2729, "source": "ner", "metadata": {"in_sentence": "Jagdish Swarup and R. K. Bhatt, for the appellant\n\nC. B. Agarwala and C. P. Lal, for the respondents."}}, {"text": "C. P. Lal", "label": "LAWYER", "start_char": 2734, "end_char": 2743, "source": "ner", "metadata": {"in_sentence": "Jagdish Swarup and R. K. Bhatt, for the appellant\n\nC. B. Agarwala and C. P. Lal, for the respondents."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 2855, "end_char": 2866, "source": "ner", "metadata": {"in_sentence": "R.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-The question which arises for considera- 1ion in this appeal is whether rthe appellant Patiraji is entitled to the\n\n\"'Adhivasi\" rights under section 20(b)(i) of the U.P. Zam\\ndari Abolition and Land Reforms Act, 1950 (\"the Act\")."}}, {"text": "Patiraji", "label": "PETITIONER", "start_char": 2958, "end_char": 2966, "source": "ner", "metadata": {"in_sentence": "R.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-The question which arises for considera- 1ion in this appeal is whether rthe appellant Patiraji is entitled to the\n\n\"'Adhivasi\" rights under section 20(b)(i) of the U.P. Zam\\ndari Abolition and Land Reforms Act, 1950 (\"the Act\").", "canonical_name": "PATIRAJI"}}, {"text": "section 20(b)(i)", "label": "PROVISION", "start_char": 3012, "end_char": 3028, "source": "regex", "metadata": {"statute": null}}, {"text": "Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 3051, "end_char": 3087, "source": "regex", "metadata": {}}, {"text": "Ram Adhar", "label": "PETITIONER", "start_char": 3106, "end_char": 3115, "source": "ner", "metadata": {"in_sentence": "One Ram Adhar and the respondents were co-tenants of certain lands srtuated at Bibiganj, District Sultanpur.", "canonical_name": "Ram Adhar Pandey"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 3304, "end_char": 3321, "source": "regex", "metadata": {}}, {"text": "Ram Adhar", "label": "PETITIONER", "start_char": 3366, "end_char": 3375, "source": "ner", "metadata": {"in_sentence": "On the death of Ram Adhar on February 24, 1949 the appellant took proceedings under the U.P. Tenancy Act, 1939 for a declaration that she was the widow of Ram Adhar and as such, had become a co- .", "canonical_name": "Ram Adhar Pandey"}}, {"text": "July 1, 1954", "label": "DATE", "start_char": 3699, "end_char": 3711, "source": "ner", "metadata": {"in_sentence": "The judgment of the Board of Revenue is dated July 1, 1954."}}, {"text": "July 1,\n\n1952", "label": "DATE", "start_char": 3763, "end_char": 3776, "source": "ner", "metadata": {"in_sentence": "In the meanwhile, the Act had come into force on July 1,\n\n1952."}}, {"text": "section 20(b)", "label": "PROVISION", "start_char": 3846, "end_char": 3859, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "section 20(~)", "label": "PROVISION", "start_char": 4040, "end_char": 4053, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Patiraji", "label": "PETITIONER", "start_char": 4255, "end_char": 4263, "source": "ner", "metadata": {"in_sentence": "The trial court dismissed the suit but the Add, itional Commissioner allowed Patiraji's appeal and decreed her suit.", "canonical_name": "PATIRAJI"}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 4489, "end_char": 4512, "source": "ner", "metadata": {"in_sentence": "The respondents then filed a writ petition in the High Court of Allahabad, which was allowed by a learned single Judge of that court."}}, {"text": "October 31, 1956", "label": "DATE", "start_char": 4842, "end_char": 4858, "source": "ner", "metadata": {"in_sentence": "344 of 1956 against'the judgment was dismissed by a Division Bench in limine on October 31, 1956."}}, {"text": "Ram Adhar Pandey Bakasht Waris Baqa biz", "label": "PETITIONER", "start_char": 5051, "end_char": 5090, "source": "ner", "metadata": {"in_sentence": "The sole foundation of the appellant's claim is an entry which appears in the Khasra of 1356F, which is to the following effects-\n\n\"Ram Adhar Pandey Bakasht Waris Baqa biz Smt."}}, {"text": "Patraji Motwafli Bewa Ram Adhar P anedv Tarikh", "label": "RESPONDENT", "start_char": 5097, "end_char": 5143, "source": "ner", "metadata": {"in_sentence": "Patraji Motwafli Bewa Ram Adhar P anedv Tarikh 24-2-49 Se\", that is to say \"Ram Adhar Pande in cultivation heir in possession Smt."}}, {"text": "Ram Adhar Pande", "label": "PETITIONER", "start_char": 5173, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "Patraji Motwafli Bewa Ram Adhar P anedv Tarikh 24-2-49 Se\", that is to say \"Ram Adhar Pande in cultivation heir in possession Smt.", "canonical_name": "Ram Adhar Pandey"}}, {"text": "Ram Adhar Pandey", "label": "PETITIONER", "start_char": 5255, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "Patiraji widow of deceased Ram Adhar Pandey from 24-2-49\".", "canonical_name": "Ram Adhar Pandey"}}, {"text": "section 20(b)(l)", "label": "PROVISION", "start_char": 5381, "end_char": 5397, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 5777, "end_char": 5787, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(b)", "label": "PROVISION", "start_char": 5864, "end_char": 5877, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(b )", "label": "PROVISION", "start_char": 6092, "end_char": 6106, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(b)(i)", "label": "PROVISION", "start_char": 6459, "end_char": 6475, "source": "regex", "metadata": {"linked_statute_text": "Special rights conlerred by the Act ought to be subject to the special limitations imposed by the Act", "statute": "Special rights conlerred by the Act ought to be subject to the special limitations imposed by the Act"}}, {"text": "August 15th, January 15th1and April 15th cl every year", "label": "DATE", "start_char": 6915, "end_char": 6969, "source": "ner", "metadata": {"in_sentence": "Under the Uttar Pradesh Land Records Manual, the Lekhpal, has to make three field-to-field inspections of every village in his halka, beginrung respectively on August 15th, January 15th1and April 15th cl every year. ("}}, {"text": "section 20(b)(i)", "label": "PROVISION", "start_char": 8922, "end_char": 8938, "source": "regex", "metadata": {"statute": null}}, {"text": "July 1, 1948", "label": "DATE", "start_char": 9813, "end_char": 9825, "source": "ner", "metadata": {"in_sentence": "The Fasli year 1356 concerned on July 1, 1948 and en<)ed on June 30, 1949."}}, {"text": "section 20(b)", "label": "PROVISION", "start_char": 10002, "end_char": 10015, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_691_713_EN", "year": 1973, "text": "K. K. CHARI v.\n\nR. M. SESHADRI\n\nMarch 16, 1973\n\n6!H\n\n[A. ALAGJRISWAMI, J. D. DUA & C. A. VAIDIALINGAM, JJ.J\n\nMdras Buildings (Lease and Rent Control) Act, 1960,-Section 10(3) (a) (i)-Bonafide requirement of land!ord-Co111pron1h.: decreewhether a separate enquiry and satisfaction ap~1rt /roni the cvmpron1ise necessary for passing eviction order.\n\nThe appellant bought. the suit premises and filed legal proceedings against the respondent, who was a tenant in the suit premisl!s, for eviction on the ground of appellant's bonafide requirements u/s 1()(3) df the Madras Rent Control Act. The tenant contested the Jandlord's ct-aim inter a/ia, on the ground that the appellant's claim was not bona fide, At the trial, the appellant examined himself, and produced voluminous documentary evidence.\n\nThe appellant was not cross-exan1ined.\n\nThe appellant and the respondent then entered into a comproise in which the tenant gave up all his defences and was gtven three months'' time to vacate the premises.\n\nA decree for eviction was accordingly passed by the Small Causes Court. The respondent did not vacate the premises and when the decree was sought to be executed challenged the decree of eviction principally on the ground that the Small Causes Court had no jurisdiction to pass a decree only in t.erms of the compromise decree and that Court had a duty to independently satisfy itself about the bona fide requirement of the landlord.\n\nThe High Court held that the order of the Small Causes Court was without jurisdiction.\n\nAllowing the appeal,\n\nHELD : (i) The true position is that an order of evictiCJ> based on consent of the parties is not necessarily void if the jurisdictional fact. namely, the existence of one or more df the .conditions mentioned in Section 10 were shown to have existed when the Court made the order.\n\nSatisfaction of the Court which is a pre-requisite for the order of eviction, need not be by the manifestation borne out by judicial findings. It at some stage, the Court was called upon to apply its mind to the question and there was sufficient material before it before the parties in, it-ed it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction \\\\'as based. In the instant case, withdrawal of defences by the tenant expressly amounts to the tenant admitting that the landlord has made out his case regarding his requirement requiring the premises for his O\\Vn occupation belr.g bona fied.\n\n[704E]\n\n(ii) From the particular facts of this case, it can be said that the decree for eviction has not been solely passed on the bas'is of the com\n\npromise.\n\nThe evidence adduced by the respondent upto the stage at which the compromise was entered into, was enough to establish the land lord's claim.\n\nBahadur Singh and another v. Muni Subrat Das [1969] Z S.C.R. 432, Kaushalya Devi v. K. L. Bansal A.I.R. 1970 S.C. 838, and Ferozi Lal v.\n\nManmal and Others A.I.R. 1970 S.C. 794, distinguished on facts.\n\nPer Alagiriswami, J.\n\nAn eviction order based op a compromise where the landlord has asked for possession on any one of the grounds on the basis of which he could ask for possessio~, is valid. [708Dl\n\nBarton v. Fincham, [1921] 2 K.B. 291, Babu Ram Sharma v. Pal Singh, [1959] P.L.R. 33, Vcs Dev v. Nikhiram, A.I.R. 1960 Punjab 514 cited with approval.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 447 of 1971.\n\nAppeal by special leave from the judgment and order dated September 15, 1970 of the Madras High Court in C.R.P. No. 797 of 1970.\n\nM. C. Setalvad, and K. Jayaram, for the appellant.\n\nV, M. Tarkundi:, E. C. Agarwala, A. T. M. Samptith and M. M. L. Srivastava, for the respondent.\n\nThe Judgment of I. D. DuA and c. A. VAID!ALINGAM, JJ. was delivered by VA!D!ALINGAM, J. A. ALAGIRISWAMI, J. gave a separate opinion.\n\nVAIDJALINGAM, J .-The short, question that arises for consideration in this appeal, by special leave; is whether order dated March 31, 1969, passed by the Court of Small Causes, Madras, in H.R.C. No. 983 of 1968 directing the eviction of the respondenttenant is a nullity and as such notexecutable. The facts leading upto the passing of the order niay be stated :\n\nThe appellant was occupying a premises in Madras as a tenant His landlady filed an application H.R.C. No. 1924 of 1967 seeking eviction of the appellant on the ground that she bona fide required the premises for her own occupation.\n\nAt that time the suit premises No. 64, Lloyds Road, Royaspettah, Madras-14 was advertised for sale. The appellant for purposes of his occupation purchased the premises on October 23, 1967, as per registered document No. 1633 of 1967 in Sub-Registrar's Office, Mylapore.\n\nThe respondent was then a tenant of the suit premises under the vendor. After the purchase, he attorned in favour of the appellant and has been paying rent. An eviction order was passed by consent against the appellant in H.R.C. No. 1924 of 1967 on January 27, 1968.\n\nHe was given time till January 27, 1969, to vacate the premises, of which he was in occupation as a tenant, by virtue of the said decree. On the same day i.e. January 27, 1968, the appellant issued two notices to the respondent, his tenant in respect of the suit premises, terminating tenancy ol the Respondent under section 106 of the Transfer of Property Ac<t and calling upon him to quit and deliver vacant possession on February 29, 1968. The two notices were given because _of the fact that the first notice had\n\nK. K. CHARI v. R. M. SESHADRI (Vaidialingam, I.) 6 93\n\nasked for vacant possession on Fe!miary 28, 1968 and to avoid any objection regarding the first notice probably the second notice was also given asking for possession on February 29, 1968. In both the noitices, the appellant had referred to the purchase of the bungalow in question for his own occupation and also attributed knowledge of the said purpose to the tenant. There is a reference B to the appellant being a tenant of premises. No. 2, Lakshmipuram, 1st street, Madras-14, and to his having no other house of his own in the city of Madras except the suit premises. It is further stated that in view of the fact that an eviction order against him has been passed on January 27, 1968, in H.R.C. 1924 of 1967, the appelc\n\nlallt requires his own bungalow, namely, the suit premises in the occupation of the respondent for his own bona fide use and occupation.\n\nAs the respondent did not surrender possession of the premises, the appellant filed H.R.C. No. 983 of 1968 in the court of Small Causes, Madras, under section 10(3)(a)(i) of the Madras Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as the Act) . In this petition, after referring to the purchase of the suit premises, as well as the order ol' eviction passed against him ia H.R.C. No. 1924 of 1967, the appellant has stated that he has no other house! of his own any where in. the city of Madras excepting the suit premises of which the respondent is the tenant.\n\nHe has further averred that he has terminated the tenancy of the respondent by issuing notices on January 27, 1968, and that the tenant has not vacated the premises though he has received the notice. There is also a reference to the fact that the respondent is not in essential service and that the suit premises is not exempt under section 30 of the Act. He has further stated that he requires the house for his bona fide us~ and occupation. Accordingly be prayed for eviction of the respondent and for possession being delivered to him.\n\nThe respondent filed two counter-affidavits, one on July 19, 1968 and another on January 14, 1969. In the former he has raised the contention that he is not a tenant of the suit premises, either under the appellant or under the previous owner of the premises. According to him, the tenant of the premises was and continues to be at the relevant time M/ s. R. M. Seshadri, a partnership firm. He has further pleaded that as he was never a tenant, the claim made by the appellant of having terminated his tc; nancy is meaningless. Finally he has stated that the application is not maintained against him and prayed for its being dismissed.\n\nIn the additional counter-affidavit, the respondent pleaded that the appellant does not require the house for his occupation and that his claim is not bona fide. He has also controverted the claim of the appellant that an eviction order had been passed against him\n\n12-L76!Su!i.CI/73\n\nin H.R.C. No. 1924 of 1967. In any event, the order of eviction against the appellant is a collusive one and. ii only a devise to evict the respondent. He further pleaded that the purchase by the appellant itself is not lawful.\n\nFinally he raised a contentiQn that the tenant, M/s. R. M. Seshadri, has spent enonnous amounts on the house acting on the assurance of its previous owner that the house would never be sold and the tenant of the premises would never be evicted.\n\nFinally there is a challenge also to the notices determining the tenancy not being in accordance with Jaw.\n\nThe enquiry before the Court of Small Causes appears to have commenced on January 16, 1969. The appellant was examined on that day as PW 1 and his evidence appears to have spread over till February 20, 1969. In the course of his evidence, he has spoken to him being a tenant of a house of which one Seethalakshmi Ammal was the landlady and to her having filed an awlication for eviction agains't him, to his purchasing the present suit premises on Octobier 23, 1967, for purposes of his own occupation, to the respondent having been a tenant against the original landlord at the time of purchase and later attorney to him, to the payment of rent by. the respondent, subsequent to the purchase and to the notices issued to the respondent terminating hi$ tenancy under section I 06 of the Transfer of Property Act and requiring him to deliver possession of the property for purposes of his occupation. He has also filed a large volume of exhibits in respect of the matters spoken to by him before the court. He has particularly mentioned the fact that he purchased the said house for purposes of his occupation, as he was under orders of eviction in H.RC.\n\nNo. 1924 of 1967 and to his having no other house in the city of Madras.\n\nThe last exhibit rthat was filed by him was Exhibit P. 45, which was a certified copy of the order in H.R.C. 1924 of 1967, which showed that an order of eviction had been passed against the appellant on January 27, 1968, and he was given time till January 27, 1969, for vacating the premises. It was no doubt\n\na consent order. But all the exhibits filed by him clearly go to establish that his evidence that he required the suit premises bona fide for his own occupation, was true. The respondent had not chosen to LTOss-examine the appellant.\n\nOn March 31, 1969, both parties entered into a compromise in the following terms :\n\n\"MEMO OF COMPROMISE\n\nThe Respondent hereby withdraws his defence in the aforesaid uetition and submits to a decree for eviction unconditionally.\n\n( 2) The Repondent prays that time for vacating uo to 5th June 1969 might please be given and the Petitioner aifCCs to the aame.\n\nK, K, CHARI V, R. M. SESHADRI (Vaidia/ingam, J.) 6~5\n\n( 3) The Respondent agrees to vacate the petition premises and hand over possession of the entire petition premises to the petitioner on or before the said date 1iz.\n\n5th June 1969 without fail under any drcumstances and undertakes not to apply for extension of time.\n\n( 4) It is agreed by both the parties that this Memo of Compromise is executable as a Decree of Court.\n\nDated at Madras, this the 31st day of March, 1969\".\n\nThe compromise petition was signed by both the appellant and the respondent as well as the advocate appearing for them The court, af>ter referring to the petition of the landlord.. being under section 10(3)(a)(i) of the Act on the ground of his own <'ccupation, passed the following order :- . \"Compromise memo filed and recorded. By consent eviction is ordered granting time to vacate till 5-6-1969.\n\nNo cost''.\n\nThe terms of compromise, which have been already set out, were also incorporated in the order.\n\nIt will be noted that the respondent had raised substantially the following defence to the application filed by !he appellant, namely- ( 1) he was not a tenant of the premises and that on the other hand, the tenant of the pre.mises was M/s. R. M. Seshadri, a partnership firm; '( 2) the claim of the appellant that he requires the house for the occupation is not bona fide; '(3) the purchase of the premises by the appellant is not lawful; { 4) the tenant, M/s. R. M. Seshadri, has spent enormous amounts by way of repairs and improvements; and ( 5) the notice determining the tenancy is not in accordance with law.·\n\nIt was to meet the above defence and also to establish his claim of requiring the premises bona fide for his own occupation, the\n\nlandlord-appellant gave the evidence and also produced about 45 exhibits. It is needless to state that the respondent, who is a retired I.C.S. officer and an advocate, must have been fully aware of the averments made by the landlord, the pleas raised in defence as well as the nature of the evidence led by ihe landlord to meet his defence. The respondent, apart from not having cross-examined the landlord, when he gave evidence, has also by the co111promise withdrawn all his defence to the application filed b(y the landlord and submitted to a decree for eviction unconditionally.\n\nIt is with this background that one has to apprciate the nature of the decree passed by the Court on March 31, 1969.\n\nIt is also seen from the records that the appellant paid a sum of Rs. 20,000/- on March 31, 1969, to the respondent towards the cost of repairs and improvements effected by him during his occupation of the suit premises. On the same date, as the compromise i.e. March 31, 1969, the respondent passed a letter to the appellant.\n\nIn this letter after referring to the compromise filed\n\nin the court as well as the order passed thereon, he gave an under' taking 'to vacate the premises on or before June 5, 1969. He also acknowledged the receipt of the sum of Rs. 20,000/- from the C landlord towards the cost of repairs and improvements.\n\nThe respondent has also further agreed to refund the sum of Rs. 20,000 /- if he does not vacate the premises within time and he has also further agreed to pay an additional sum of Rs. 10,000/ - as damages. We are not concerned with this sum of Rs. 20,000/- or the further agreement of the respondent to pay damages. The respondent has further stated in the sai.d letter that in the event of his failure to vacate the premises within time, the landlord is at liberty to execute the decree of eviction without any further notice to him.\n\nThe assurance and the undertaking given by the respondent to abide by the compromise decree and to vacate the premisei\n\nwithout raising any objection have proved to be of no avail, as will be seen from the events that followed. When the time lor delivery of property was drawing near, the respondent's son, one S. M.\n\nSundararn, filed a suit in the City Civil Court, Madras, for a declaration that the purchase by the appellant of the suit property was void. The son also obtained an mterim injunction against the appellant from executing the order of eviction passed in H.R.C.\n\nNo. 983 of 1968 and disturbing his possession. The suit was tried on merits and was ultimately dismiSsed by the City CiV11 Court on December 12, 1969 with costs of the appellant. According to the appellant, this .suit was engineered by the respondent himself in order to put off his eviction ftom the suit property.\n\nAfter the dismissal of the above suit, the appellant filed Execution Petition No. 953 of 1969 in the City Civil Court, Madras (which was the competent Court for purposes of execution) to execute the order of eviction against the respondent in H.R.C.\n\nNo. 983 of 1968. The respondent filed B. A. No. 1314 of 1969 objecting to the execution of the decree on the ground that it was a null, ity and inexecutable; and as such he prayed for the warrant of possession issued in Execution Petition to be recalled and to dismis.s the Execution Petition itself., His main plea in this apptt.\n\n• •\n\n( n\n\nK. K. CHARI v. R. M. SE_SHADRI (Vaidialingam, /.) 697\n\ncation was that the decree sought to ~~.executed was one based on comproinise or consent without the Rent Control Court having satisfied itself by an independent consideration regarding the bona fide requirement of the property by the landlord for his own occu- pation; and as such the decree contravened section 10 of the Act. This application was opposed by the appellant in a lengthy counteraffidavrt.\n\nIn this counter-affidavit, the landlord, after referring to the various items of evidence adduced before . the court, which have been referred to earlier, has stated that it was when the respondent found that the pleas raised by him could not be sustained nnd that the landlord's case was true that he unconditionally withdrew his defence and submitted to a decree. . He has further . pleaded that the decree sought to be executed does noi suffer any infirmity. ·\n\nThe learned City Civil Judge b\\y his order dated March 18, 1970, over-ruled the objections raised 1:zy the respondent and dis- . missed E. A. No: 1314 of 1969 and gave time to the respondent till April20,' 1970, to vacate and deliver the possession! of the D :property. : The respondent carried the matter to the High Court in Civil Revision Petition No. 797 of 1970. The High Court by its judgment and oroer dated September 15,· 1970, has reversed the, urder. of the City Civil Court and accepted the contentions of the respondent. The learned Judge has held that the decree for eviction dated March 31; 1969, is solely passed on the basis of the E compromise and the Rent Controller has not applied his mind to satisfy' himself whether the bona: fide requirement of the landlord has been established. It is the further view of the High Court that even if there was enough material before the Rent Control Court, when it passed the' order' of eviction by consent, the decr.-e will, nevertheless, be void so long as the Rent Controller has not.\n\nF given his dedsion regarding the requirement of the landlord being bona fide.· .. On this line of reasoning, the learned Judge held that the eviC'lion order is a nullity and isnot executable.''\" ·\n\n• •' , - '• • '_' •' I '• • Mr. M~ c.· Setalvad, learned counsel for the appellant; has urged that the High Court has misunderstood and. mis-interpreted the decisions of this Court baring on the point. · He pointed out\n\nJ:; that the appellant had specifically pleaded that he required the house bona fide for his own occupation, which is one of the circumstances under which a landlord can claim eviction of the tenant under the Act.\n\nThe circumstances under which the house was :required by him were also' spoken to by the landlord when he gave evidence and he sought supp9rt by filing as niany. as forty-five H exhibits before the court. The respondent had denied the plea of the landlord in his counter-affidavit. Nevertheless, when the entire evidence was placed before the . court by tli landlord, the tenant did not choose to c'ross-examine him, as he must have felt\n\nthat 1he landlord's claim would be accepted by the court and his defence rejected.\n\nIt was under ilhose circumstances that the respondent unconditionally withdrew his defence and submitted to a decree for eviction.\n\nThat conduct of the respondent clearly\n\nestablihes that he has accepted as true the claim of the landlord that be bona fide required the premises for his own use and occupation. The materials on record also show that the court was satisfied atput the bona fide requirement of the landlord and hence it accep1ed the compromise and made it a decree of court. Under those circumstances, the counsel contended that it cannot hS said that\" the decree is one passed only on the basis of the compromise so as to rriake it void.\n\nMr. Tarkunde, learned counsel for the respondent, urged that the deree for evictioh has been passed exclusively on the basis of the compromise entered into by the parties. There is no indication that the court at any stage applied its mind and satisfied itself regarding the premises being required by the landlord bona fide for his own occupation. The relevant provision of the Act, the counsel pointed out, is quite, clear and it makes it mandatory that the court must apply its mind and satisfy itself that the claim for eviction falls within one or other of the provisions which enables a landlord to get possession.\n\nHe further pointed out that if the satisfaction _of the court is not expressed in the decree, the executing Court has no option but to hold that the same is void. as laid down by this Court, and it cannot go into the question whether from the materials on record the Rent Control Court was satisfied or not.\n\nSuch an enquiry, it is pointed out, will be asking the executing Court also to go into the question wheth~ - the landlord has made out a case for eviction-a question which falls within the exclusive jurisdiction of the Rent Control Court.\n\nMr. Tarkunde finally pointed out that the decision of the High Court holding that the decree in question is void is correct, as it is in accordane with the decisions of this Court.\n\nIt is now necessary to refer to the material Provisions of the Act. Section 10 deals with eviction of tenants .. T.he relevant part of section 10, necessary for our purpose, is as follows :-\n\nEviction of tenants. \"10( 1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or\n\nctions 14 to 16 :\n\nx x x x x\n\n2 (a) A landlord may, subject to the provisions of clause ( d), apply to the Controller for an order direct-\n\n~ r-\n\nK. K. CHARI v. R. M. SESHADR! (Vaidialingam, J.) 699\n\ning the tenant to put the landlord in possession of the building- '\n\n(i) in case it is a residential building if the landlord requires it for his own occupation or for the occupation of his son and if he or his son is not occupying a residential building of his own in the city, town or village concerned; x x x x x\n\n(a) The Controller shall, if he is satisfied that the claim of the landlord in bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application : x x x x x Provided further that 'the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.\" . Section 10 (1) places an embargo on the right of a landlord to get a tenant evicted except in accordance with the provisions of that section or sections 14 to 16. We are not concerned with sections 14 to 16 in this case.\n\nSub-section 2 enumerates certain circumstances under which a landlord can ask for eviction.\n\nWe are not also concerned with that provision.\n\nSub-section 3 again enumerates certain other circumstances under which a landlord, subject to the provisions of clause ( d) , can ask for possession of' the building from the tenant. It is accepted by both parties that clause ( d) has no application.\n\nSub-clause ( i), which deals witla a residential building, enables a landlord to ask for possession of a building in the circumstances mentioned therein.\n\nUnder subclause ( e) , if the Controller is satisfied that the claim of the landlord is bona fide he may pass an order of eviction.\n\nIn this case, the landlord has asked for eviction on the ground that he requires the premises for his own occuoation. The Con- G troller can pass an order in his favour only if he is satisfied that his claim is bona fide.\n\nThe statute says so and that has to be given full effect.\n\nThe question is whether in the case before us, it can be stated that the Controller was so satisfied when he passed the order of eviction on March 31, 1969.\n\nOur attention has been drawn to certain English decisions rendered under the Rent Restrictions Aot, wherein it has bn held that though the court has jurisdiction to order possession in favour of a landlord only on one or other of the pecified statutory\n\ngrounds, the court may act on an admission made by a tenant in that behalf and pass an order of eviction without being obliged to hear a case out. It is not necessary for us to refer to those decisions as, in our opinion, the case on hand will have to be decided in accordance with the .principles laid down by this Court.\n\n111ere are three decisions of this Court which require to be considered.\n\nIn Bahadur Singh & Anr. v. Muni Subrat Dass & Anr., (') a decree for eviction passed on the basis of a compromise between the parties, was held, by this Court, to be a nullity as contravening section 13 (1) of the Delhi and Ajmer Rent Control Act, 1952. The facts therein were as follows :-\n\nThe tenant and the son of the landlord referred the disputes between them to arbiitration. The landlord was not a party to this agreement. The arbitrators passed an award whereunder the tenant was to give vacant possession of the premises in favour of the landlord within a particular time.\n\nThis award was made a decree of court.\n\nThe landlord, who was neither a party to the award nor to the proceedings, which resulted in the award being made a decree of court, applied for eviction of the tenant on the basis of the award.\n\nThe tenant resisted execution by raising various objections under section 4 7 of the Code of Civil Procedure.\n\nOne of the objections, was that the decree. for eviction based upon the award was a nullity as being opposed to the Delhi and Ajmer Rent Control Act, 1952.\n\nThis Court held that the decree directing the tenant to deliver possession of the premises to the landlord was a nullity, as it was passed in contravention of section 13 ( 1) of the relevant statute.\n\nAfter quoting the subsection, this Court further held that the decree for eviction passed according to an award, in a proceeding to which the landlord was not a party, and wrtholl't the court satisfying itself that a statutory ground of eviction existed, was a nullity and cannot be enforced in execution. It will be seen from this decision that the decree was held to be a nullity biecause the landlord was not a party thereto, and also because the court had not satisfied itself that a ground for eviction, as required by the statute, existed.\n\nThis decision is certainly an authority for the proposition that a court ordering eviction has to satisfy itself !hat a statutory ground of eviction has been made out by a landlord. How exactly that satisfaction is to be expressed by the court or gathered from the materials, has not been laid down in this decision, as this Court was not faced with such a problem.\n\nJn Kaushalya Devi & Ors. v. Shri K. L. Bansal,(') the question again arose under the same Delhi statute regarding the validity\n\n(I) [1969] 2 S.C.R. 432.\n\n\nK. K. CHARI V, R. M. SESHADRI (Vaidialingam, J.'I 701\n\nof a decree passed for eviction on compromise.\n\nThe plaintiff therein filed a suit for eviction of the tenant on two grounds :-\n\n(a) the premises were required for their own use; and\n\n(b) the tenant had committed default in payment of\n\nreni.\n\nThe tenant filed a.written statement denying both these allegations.\n\nHe disputed the claim or' the landlord regarding his requiring the premises for his own use bona fide and also the fact of his being in arrears.\n\nWhen the pleadings of the landlord and the tenant were in this state, both parties filed a compromise memo in and c by which they agreed to the passing of. a decree of eviction against the tenant. Representations to the same effect were also made by the counsel for both parties.\n\nThe court passed the following order:-\n\n\"In view of the statement of the parties' counsel and the written compromise, a decree is passed in favour of the plaintiff against the defendant\".\n\nThe tenant did not vacate the premises within the time mentioned as per the compromise memo.\n\nOn the other hand, he filed an application under section 47, Civil Procedure Code, pleading that the decree is void as being in contravention of section 13 of the E Delhi statute. The High Court held that the decree was a nullity, as the order was passed solely on the basis of the compromise without indicating that any of the statutory grounds mentioned in section 13 existed. Following the decision in Bahadur Singh & Anr.,(1) this Court upheld the order of the High Court. Here again, it will be seen that the manner in which the court's satis- F faction is to be expressed or gathered has not been dealt with.\n\nA similar question came up again before this Court in Ferozi Lal Jain v. Man Mal & Anr.(') The landlord filed an application for eviction of the tenant on the ground that he had sublet the premises without obtaining his consent in writing. Subletting, without the consent of the landlord in writing, was one of the G grounds under section 13 ( 1 ) of the Delhi statute entitling a landlord to ask for eviction. The tenant denied the allegation that be had sublet the premises. B.oth the landlord and the tenant entered into a COJllllromise and the court, after recording the same, passed the following order :-\n\nH \"As per compromise, decree for ejectment and for Rs. 165 /- with proportionate costs is , passed in favour of the plaintiff and against the defendant. The parties\n\n\nCZ) A.T.R. 1970 S.C.794 .\n\nshall be bound by the terms of the compromise. The terms of the compromise be incorporated in the decreesheet. ......... \"\n\nAs 'lhe tenant did not surrender possession of ihe properties within the time mentioned in the compromise memo. t!Ie landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of section 13 of the Delhf statute. This contention was accepted by the execution Court, as well as by the High Court.\n\nThis Court, alter a reference to the provisions of section 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other Of 'lhe grounds mentioned in the section is established. This Court, further observed :\n\n\"From ihe facts mentioned earlier, it is seen 'lhat at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not.\n\nOrder made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to. show that it was so satisfied. It is clear from the record that the court\n\nhad proceeded solely on the basis of the compromise arrived at between the parties. That hieing so there can be hardly any doubt 'lhat the court was not competent to pass the impugned decree. . Hence the decree under execution must be held to be a nullity\".\n\nReference was also made to the two earlier decisions holding such decrees to be void. It is significant to note that this Court in the last mentioned decision referred to the facts leading upto the compromise decree, namely, the basis of the Claim of the landlord, the denial by the tenant and both of them filing a memo of compromise without any reference to the plea of subletting made by the landlord. In the said decision this Court haS held that the compromise decree is void, as there could have been no satisfaction of this Court regarding the statutory requirement in view .of the following three circumstances :- (I) At no stage the Court was called upon to apply\n\nitS mind to the question whether .the plea of subletting is tiue or not.\n\n( 2) The order made !:ti' the Court does not show that it was satisfied that the subletting complained of has taken place.\n\n( 3) There was no other material on record to show that the court was so satisfied.\n\nI G\n\n• •\n\nI \\\n\nK .. K. CHARI .v. R. M. SESHADRI (Vaidia/ingam, J.) 703'\n\nThe view of this Court further k that the decree for eviction has been passed solely on the basis of the compromise arrived at between the parties. ·\n\nIn the last decision, in our opinion, there is an indication as tCY how the satisfaction of a court can be expressed or gathered irr a particular case. If a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a satutory condition, it may be held that it was so satisfied .about the plea of the landlord. Again from other material on record, it can be inferred that the court was so satisfied.\n\nWe are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before. us has been passed solely on. the basis of the compromise arrived at : bet\\veen the parties. No dout~ a .. reading of the order of die. court dated March 31, 1969, isolaied from all other circumstances, may give the impression that the decree for eviction is passed because of the compromise between the parties. . It is no doubt true that the order on the face of it does not show that the court has expressed its satisf:iction that• the requirement of the landlord is bona fide.\n\nJf the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage had beerr reached in the proceedings for the court to apply its mind to the relevant question? Other materials on record can also .be taken into account to find out if the court was so satisfied. The High Court has proceeded on the basis that even if there was materiaf before the court, when it passed the order of eviction by. consent, from which it can be shown that the court was satisfied about the requirement of the landlord being bona fide, nevertheless such an order will be a. nullity unless the Rent Controller has given his decision in favour of the landlord. In our opinion, . this view i\" .erroneous.\n\nWe have very exhaustively referred to the plea of the landlord as well as the evidence let in by him regarding his requiring the building bona fide for his own occupation. There is no contto~ versy that if such a plea is established, an order of eviction of the G tenant can be obtained by the landlord under section 10 of the Act.\n\nThe respondent no doubt at the initial stage denied the claim of the landlord. . The landlord gave evidence on various matters with particular reference to his requiring the house bona fide for his own occupation. He had also filed, as referre.d by us earlier, as many as 45 exhibits, one of which was the order of eviction H obtained against him, being Ext. 45. The respondent did not cross-examine the appellant. When the evidence of the landlord was before the court supported, as it was, bv the innumerable exhibits filed by him, it can surely be stated that a stage had been\n\n~ . readied when the Controller was called upon to apply his mind tri the question whether the plea of the landlord that he required the \\ premises for his own occupation was bona fide.\n\nThere is the further circumstance that the tenant did not cross-examine the plaintiff. On the other hand, he entered into a compromise in ..._and by which he withdrew his defence and suljmitted to a decree f for eviction unconditionally. His withdrawal of the defence, after & the plaintiff had given evidence and filed exhibits in support of\n\n,., his plea, clearly shows that he accepted as true the. claim of the\n\n.{landlord that he requires the premises bona fide fqr his own occupa- )\"S:1ion. He has accepted the position that the landlord has made [-.,, 'out the statutory requirement, entitling hini to ask for possession\n\n' of the premises. It is this unconditional withdrawal of the defence\n\nc regarding the statll'lory condition pleaded by the landlord, :md the compromise following it, that was accepted by the court aud a decree for eviction passed thereon.\n\nUnder those circumstances, when the tenant has accepted the plea of the Jandlordr in our opinion, it is futile to hold that the Rent Controller mustagain embark upon an enquiry regarding the requirement of the land- . 0 lord being bona fide and adjudicate upon the same.\n\nOf course, if there is a dispute between the landlord and tenant, the court must.decide the matter and adjudicate upon the plea of the fond- Jord.\n\nThe true position appears to be that an order of eviction based on consent of. the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in section 10 were shown to have existed when the Court made the order.\n\nSatisfaction of the Court, which is no doubt a pre-\n\n<_ requisite for the order of eviction, need not be by the manifestation\n\n•borne out by a judicial finding. If at some stage the Court was 'called upon to apply its mind to the question and there was suffi-\n\n: 1 cient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.\n\nIt is no doubt true that before making an order Jor po;; ession the court is under a duty to satisfy itself as to the truth of the landlord's claim, if there is a dispute between the landlord and\n\ntenant. But if the tenant in.fact admits that the landlord is entitleQ, to possession on one or other of the statutory ground, mentioned in the Act, it is open to the court to act on that admission\n\nand make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express oi implied. has been made by the tenant about the existence of one-or other of the\n\nK. K. CHAR! v. R. M. SESHADR! (Vaidialingam, J.) 705\n\nstatutory grounds.\n\nBut in the case on hand, we have already referred to the specific claim of the landlord as well as the fact nf. the tenant withdrawing his defence.\n\nAccording to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. In the three decisions of this Court, to which we have already referred, the position wa~ entirely different.\n\nIn none of those cases was there any material to show that the tenant had expressly or impliedly accepted the plea of the landlord as true.\n\nTherefore those decisions do not assist the respondent-tenant.\n\nFor all the reasons mentioned above, it cannot be held, in the particular circumstances of this case, that the decree for eviction has been passed solely on the basis of the compromise entered 'into between the parties.\n\nOn the other hand, it is clear from the various matters Teferred to, that the court was satisfied about the bona fide requirement of the landlord.\n\nTherefore, the decree for eviction is neither void nor inexecutable.\n\nMr. Tarkunde, learned counsel, contended that if the execution Court is to find out whether the court, which passed the decree, was satisfied about the statutory requirement in a particular case; it will have to conduct a very elaborate enquiry.\n\nWe are not impressed with this contention.\n\nOnce it is accepted that the question about a decree being void and as such not executable on any ground available in law can be raised before the executing Court, it is needless to state that the executing Court will have to adjudicate upon that plea and for that purpose the relevant materials have to be considered. If that is so, there is no insurmountable difficulty, as envisaged by Mr. Tarkunde. in an executing Court considering whether a particular decree for eviction is void as being contrary to the relevant section of the statute governing the matter.\n\nMr. Tarkunde, learned counsel, contended that the tenant had disputed the title of the landlord as well as the validity of the notice issued under section 106 of the Transfer of Property Act.\n\nAs these matters have not been considered by tlie courts below, he requested that the proceedings may be\"remanded for this purp?se.\n\nWe are not inclined to accede to this request.\n\nThe tenant raISed these objections also in his original plea, but he has unconditionally withdrawn all his defence.\n\nThat means these pleas also no longer survive for consideration.\n\nIn the result the appeal is allowed.\n\nThe order and judgment dated September 15, 1970, of the High Cou~ re set aside and the order dated March 18, 1970, of the City ClVll Court, Madras,. will stand restored with costs throughout.\n\nALAGIRISWAMI., ! ·-:---! agree with the order proposed by my A Jearned brother, Va1d1ahngam, J. but I think it is necessary to add a few words of my own.\n\nThe law on this subject has got into a labyrinth and I think it is time we took a hard look at it and laid down the correct position.\n\nThe learned Single Judge of the Madras High Court, who\n\nllowed the repondent'.s petition, ws mainly influenced by the JUdgme11ts of thts Court m Bahadur Smgh v. Muni Subrat Dass('), Ferozi Lal v. Man Mal(') and Kaushalya Devi v. K. L. Bansal(').\n\nBefore him the cases in Remon v. City of London Real Property Co. Ltd.,(') Thorone v. Smith(') and Middleton v.\n\nBaldock\n\n(T.W.) ( 0 ) were cited in support of the contention taken on behalf .of the landlord, as also the decision in Jagan Nath v. Jatinder\n\nNath(') and Vas Dev v. Milk hi Ram ( 8 ) • In spite of this he felt bound by the decisions of this Court and on the ground that the Order of the Rent Controller on the face of it does not show that he had applied his mind and was satisfied Jhat there was a bona fide requirement of the premises by the landlord for his personal .occupation it was a nullity.\n\nHe thought that even if there was .enough material before the Court when it passed the order of eviction by consent so long as the Rent Controller had not applied his mind and given his decision in the matter as to whether the respondent was bona fide in requiring the premises for his own .occupation, the eviction order cannot be held to be an order passed on merits under section 10 ( 3) of the Act. He further thought that having due regard to the decisions of this Court it was not possible for him to accept the contention of the learned counsel for the appellant that a finding on merits in his favour had\n\nto be implied from the order of the Rent Controller in view of the existence of adequate material before him to support an implied finding.\n\nHe also thought that even in case where the tenant F bona fide admits that the ground of eviction existed, the Rent COntroller must apply his mind and hold, basing himself on such admission. by the tenant, that the ground for eviction put forward by the landlord existed and that he is entitled to an eviction order, without solely relying on the compromise.\n\nI am of opinion that in this approach learned Judge relied G more on the form than the substance of the matter.\n\nThe true approach has been pointed out by our learned brother, V aidialin- gam J. He has pointed out that while the decision in Bahadur .'Singh's('i case was an authority for the proposition that a court\n\n. (1) [1%9] 2 S.C.R. 432.\n\n(3) A , J.R. 1970 S.C. 838.\n\n(S) [1947) I K.B. 307.\n\n17) A.l.R.1961 hnjab S7'1.\n\n(2) A.I.R. 1970 S.C. 794.\n\n(4) [192i] 1 K.B. 49.\n\n(6) (19.50] I K.B. 6S7,\n\n(8) A.I.R. 1%0 Punjab Sl4.\n\nK, K, CHARI v. R, M. SESHADRI (Alagiriswami, J.) 707\n\nordering eviction has to satisfy itself that a statutory •'round of . . . ev1ct10n has been made out by a landlord; how exactly that satisfaction was to be expressed by the court or gathered from the materials, has not been laid down in that decision; that in Kausha/ya Devi's case also the manner in which the court's satisfaction was to. be expressed or gathered has not tJeen dealt with; mor has the decisioµ in Ferozi Lars case given an indication as to how the satisfaction of a court could be expressed or gathered in a particular case. He has pointed out that \"if a stage had been reached in a particular proceeding for a court 'to apply its mind regarding the existence. of a statutory condition, it may be held that it was so satisfied about the plea of th~ landlord.\n\nAgain, from other material on record it can be inferred that the court was so satisfied.\" He has also pointed out how in the particular circumstances of the present case as the tenant had withdrawn his defence and submitted to a decree for eviction unconditionally, he had accepted the claim of the landlord that he required the premises bona fide for his own occupation; that he has accepted the position that the landlord has made out the statutory requirement entitling him to ask for possession of the premises; that by this unconditional withdrawal Of the defence regardinJ!: the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court, the tenant has accepted the plea of the landlord, and it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. He has also pointed out that the true position appears to be that an order of eviction based on consent of the parties is not necessarily vojd ii the jurisdictional fact, viz. the existence of one or more of the conditions mentioned in section 10 were shown to have existed when the court made the order; that the satisfaction of the court. which is no doubit a pre-requisite for the order ol' eviction, need not be by the manifestation borne out bv a judicial finding; and that if at some stage the court was called upon to aoply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their a2reement, it is possible to postulate that the court was satisfied about the grounds on which the order of eviction was based. He has further pointed out that if the tenant in fact admits that the landlord is j:ntitled to possession on one or other of the statutory grounds mentioned in the Act. it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is on these 2rounds that he has come to the conclusion that the facts in this c\"se satisfied these tests ·\n\nand. therefore. the \"r, der of the Madras High Court should be set aside. In so far as it is necessary for the purpose of this case this is a satisfactory conclusion.\n\nLet us, however, consider this question based on principles.\n\nThe Rent Controller is a quasijudicial tribunal created for the purpose of discharging certain functions under the Act. Not being an ordinary civil court to which ihe provisions of section 9 of the Code of Civil Procedure applies the Rent Controller gets juisdic tion to order eviction of a tenant only in case one or other of the various circumstances laid down in the Act like the bona fide requirement of the landlord of the building for his own occupation, wilfol default in the payment of rent by the tenant etc. are satisfied. But once these grounds are alleged and found to be established no further question of its jurisdiction arises. A quasi-judicial tribunal acting within jurisdiction may decide rightly or may decide wrongly, If it decides wrongly there are provisions in the Act itself for appeal, revision and ultimately even revision by the High Court under the provisions of section 115 of the C.P.C. or even under Article 227 of the Constitution. Of course, by a wrong decision on a jurisdictional fact a quasi-judicial tribunal with a limited jurisdiction cannot con.fer jurisdiction on itself. But in the case of a compromise such a question does not arise.\n\nWhere as in this case the landlord has asked for possession of the building on the ground that he wants it for his own personal occupation which is one of grounds for eviction under the Act, the Rell't Controller has, of course, to bie satisfied that this requirement is real and bona fide.\n\nIn regard to his decision on this point, as already pointed out, there are provisions for appea1. revision etc.\n\nThe words in section 10 'if the COntroller is satisfied' do not have any special ; ignificance. An ordinary civil court tryinj!; a suit either on a mortgage or on a promissory note has necessarily to be satisfied about the execution of the document, the passing of consideration etc. before it can pass a decree on the basis of either the mortgage or the promissory note.\n\nTherefore, the fact tr.at under section 10 the Controller has to satisfied that the ground for eviction exists does not mean that his satisfaction cannot be based on the same considerations on the ba&is of which the civil courts can be satisfied. Let us take a suit on a promissory note. The defendant can appear before the court and admit the plaintiffs The suit can be decreed on that basis.\n\nThe defendant may be absent and the case may be set ex-parle.\n\nIn such a case the plaintiff lets in the evidence and on the basis of that evidence the suit may be decreed.\n\nOr the defendant might appear and file a written statement denying the execution of the promissory note or denying the receipt of consideration or even putting forward a plea of discharge. Now in these circumstances the court will not pass a decree unless it is satisfied that the promissory note was executed, that consideration passed and that it had not been discharged. This does not prevent the defendant at any stage of the suit either submitting to a decree or entering into a compromise cC'nsenting to a decree. The fact that the consent to a decree takes\n\n/ ( ..\n\n.. D\n\nK. K •. CHARI v. R. M. SESHADRI (A/agiriswami, J.) 709,\n\nthe form of a compromise cannot make the consent.any the !es> a consent. Under Order 23, Rule 3 of the Code of Civil Procedure all matters to be decided in a suit -can be settled by means of a compromise. The application of Code of Civil Procedure is not excluded in proceedings before the Rent Controller and in any case there is no reason why the principle underlying Order 23, Rule 3 should not apply to those proceedings. It is not clear why a tenant should be treated as a minor or as an imbecile. In the case of a minor the Order 32, Rule 7 of the Code of Civil Procedure specifically lays down !!hat the court should be satisfied before it sanctions a compromise binding the minor. There is no such provision in the Rent Control Act. I think, therefore, the time has come when a hard look must be taken on this point and it should be held that there is no objection to a compromise consenting to an order of eviction in rent control proceedings.\n\nOf course, a compromise can be valid only if it is in accordance with the Act, i.e. only if the landlord has asked for possession of the building on one oi the grounds laid down in the Act. For instance, a. landlord merely on the ground that he is the owner of the building cannot come to the Rent Controller and ask for possession of the property and the Rent Controller cannot pass a valid order merely because the tenant submits to an order of eviction.\n\nBahadur Singh's case is an instance in point. In that case the landlord did not even apply for eviction. Bnt where the landlord speciJically asks for possession on any one of the grounds on the basis of which he is entitled to ask for possession under the provisions of the Act there will be no objection to the tenant erther submitting to an order of. eviction or entering into a compromise submitting to an order of eviction. There is no magic . in the words. 'if the Controller is satisfied' in section 10(3)(e).\n\nThe section would have been as effective even if those words were not there and the section had read as follows :\n\n\"If the claim of the landlord is bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller; otherwise he shall make an order rejecting the application.\" It is not :necessary to refer to the three decisions of this Court which have been sufficiently discussed by our learned brother, Vaidialingam, J. I may now refer to certain English decisions. In Barton v.\n\nFincham( 1) Lord Scrutton L.J. observed : . H \"If the tenant is willing to go out, I do not see why any ordeT is wanted; let him go; but at present\n\n(!) [1921) 2 LK.B. 291 at 298. l3-L76! Sl'q.C!/73\n\nadvised I do not see any reason why the judge on being satisfied that a tenant is then ready to go out (not that he was once williing lilt has changed his mind) should not make an order for possession.\"\n\nLord Atkin L. J. observed :\n\n\"If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona {ide3 of the admission, the Court is under no obligation to make further enquiry as to the question of fact.\"\n\nIn Thome v. Smith after referring to the observations of Atkin, LJ. and Scrutton, L.J. (supra), Lord Bucknill, L.J. pointed out:\n\n\"But in the present case it is, I think, reasonably clear that the tenant, in effect, agreed to the order because at the time when the landlord asked the court to make the order the landlord by his own statements had satisfied the tenant that he intended to occupy the house himself and he, the tenant, could not hope successfully to resist the claim. If the tenant )lad stated this expressly in the court the judge would surely have had jurisdiction to make the order on that ground. I think n the events which happened here, the tenant being legally represented, the judge was entitled to proceed on the view that this was the true position. Before making an order for possession the judge is under a duty to satisfy himself as to the truth if there be a dispute between landlord and tenant, but if the tenant in effect agrees that the landlord has a good claim to an order under the Acts, I think ithe judge has jurisdiction to make the order for possession under the Acts, without further inquiry.\"\n\nLord Justice Somervell referred to rule 18 of the rules made under the Act of 1920, there under consideration, to the following effect :\n\n\"Where proceedings are taken in the county court G for the recovery of rent of any premises to which the Act applies, or of interest on a mortgage to which the Act applies, or for the recovery of possession of any premises to which the Act applies, or for the ejectment of a tenant from any such premises, the court shall, before makin!( an order for the recovery of such rent or interest, H or for the recovery of possession or ejectment, satisfy itself that such order may properly be made, regard being had to the provisions of the Act.\"\n\nK, K, CHARI v .. R, M. SESHADRI (Alagiriswami, /.)\n\n7 J.I\n\nand observed :\n\n\"Nothing in !he decision that we are giving in any way, as it seems to me, diminishes the scope of that rule.\n\nWe are deciding that on what happened in this case, the tenant being, as he was, legally represented, the county court judge was rightly \"satisfied\" lhat the order could properly be made.\n\nThe other point arises from the use oi. the word \"consent\" as applied to the order made herein. The expression \"a consent order\" may suggest some compromise or arrangement which might be inconsistent with the provisions of die Acts. When the defendant is agreeing to submit to judgment because he is satisfied that the plaintiff can establish his right to an order under the Acts, it might be advisable to avoid the use of the word \"consent\", which may have a wider meaning and .cover cases where the \"consent\" was the result of an arrangement which could not properly be made the basis of an order.\" These observations very clearly show that the fact the Court had to satisl'y itself did not prevent a consent order.\n\nIt also shows clearly that a compromise or arrangement as long as it is not inconsistent with the provisions of the Act would not be objectionable.\n\nIn Middleton v. Baldock (supra) it was held :\n\n\"that a landlord seeking to recover possession against a tenant protected by the Rent Restriction Acts must establish the right to possession on one of the grounds stated in the Acts, unless, after possession had been claimed on such a ground, the tenant admitted facts to suppovt it, in which event the court need not itself investigate the matters of fact admitted.\" In its decision in Babu Ram Sharma v. Pal Singh(') the Division Bench of the Punjab High Court, of which our learned brother Dua, J. was a member, had this to say on the point at issue :\n\n\"According to this section the landlo!'d is entitled to seek eviction of his tenant on certain grounds, and the Rent Controller, after giving notice to the tenant, is empowered. to give his own finding and then to pass the necessary order. In the present case the ground on which the landlord had sought eviction was non-payment of rent. Such a ground is within the express language of section 13 of the aforesaid Act. It was, therefore, open\n\n(]) [1959] P.L.R. 33.\n\nto the Rent Controller to determine whether or not the allegations of the la.ndlord that the tenant had not paid the rent was correct. It appears that the tenant admitted that he had not paid the rent as alleged by the landlord.\n\nIn this view of things, I do not understand how it was necessary for the Controllr to hold any further enquiry.\n\nAfter fully considering the matter I am definitely of the opinion that il the compromise decree is bilsed on the grounds on which the landlord could claim a decree for eviction undzr section 13 of the East Punjab Urban Rent Restriction Act, then it is within the jurisdiction and competence of the Rent Controller to pass such a decree with a default clause; it is similarly competent for the civil court to execute such a decree when default has occurred. The proviso to sub-section 2 of section 13 of the Act is not attracted in such circumstances as no question of extending time granted to the tenant for putting the la.ndlord in possession arises. In the result my answer to the two questions relerred would be in the affirmative.\n\nIn Vas Dev v. Milkhi Ram (supra) Justice Grover of the Punjab\n\nHigh Court (as he then was) after referring to the three English cases, already referred to above, observed :\n\n\"From the above discussion of the English cases, the principle which has also been accepted by the Bench of this Court is quite clear that if the tenant admits after a suit for ejectment has been filed that the landlord is entitled to possession on one of the statutory grounds the court can make an appropriate order or ii the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the\n\ntenant accepts that representation and submits to an order, then also the Court will ble fully justified in making a valid order of eviction. Each case, therefore, will have to be decided on its own facts and if will have to be seen whether there is any material to justify an inference that an admission, be it express or implied, has been made by tlie tenant on the existence of one of. the statutory grounds.\n\nThere is a good deal of force in the submissions of the learned counsel for the landlord that enough material and evidence had come on the record to satisfy the Court as well as the tenant that the grounds on which ejectment had been sought would be ultimately established\n\nK, K, CHARI v. R. M, SESHADRI (Alagiriswami, !.) 713\n\nand when the tenant entered into the compromise, it was implicit in the aforesaid circumstances that he was admitting the correctness of the grounds which had been taken for his ejectment. I am, therefore, of the opinion that the tests which have been laid down by the au'lho rities have been fully satisfied and it cannot be said that the decree which was passed on the basis of compromise was a nullity or could not be executed.\" That is exactly the position here.\n\nAll these decisions amply support the proposition that I have put forward that an eviction order based on a compromise where the landlord has asked for possession on any one of the grounds on the basis of which he could ask for possession would be valid.\n\nThis would, however; have to be considered when a _proper occa sion arises. The present appeal is allowed.\n\nS.B.W.\n\nAppeal allowed.", "total_entities": 122, "entities": [{"text": "K. K. CHARI", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "K. K. CHARI V", "offset_not_found": false}}, {"text": "R. M. SESHADRI", "label": "RESPONDENT", "start_char": 16, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "R. M. SESHADRI", "offset_not_found": false}}, {"text": "March 16, 1973", "label": "DATE", "start_char": 32, "end_char": 46, "source": "ner", "metadata": {"in_sentence": "K. K. CHARI v.\n\nR. M. SESHADRI\n\nMarch 16, 1973\n\n6!H\n\n[A. ALAGJRISWAMI, J. D. DUA & C. A. VAIDIALINGAM, JJ.J\n\nMdras Buildings (Lease and Rent Control) Act, 1960,-Section 10(3) (a) (i)-Bonafide requirement of land!ord-Co111pron1h.:"}}, {"text": "D. DUA", "label": "JUDGE", "start_char": 74, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "Section 10(3)", "label": "PROVISION", "start_char": 161, "end_char": 174, "source": "regex", "metadata": {"statute": null}}, {"text": "s 1()(3)", "label": "PROVISION", "start_char": 546, "end_char": 554, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 1758, "end_char": 1768, "source": "regex", "metadata": {"statute": null}}, {"text": "Alagiriswami", "label": "JUDGE", "start_char": 3033, "end_char": 3045, "source": "ner", "metadata": {"in_sentence": "Per Alagiriswami, J.\n\nAn eviction order based op a compromise where the landlord has asked for possession on any one of the grounds on the basis of which he could ask for possessio~, is valid. [", "canonical_name": "Alagiriswami"}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3574, "end_char": 3588, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, and K. Jayaram, for the appellant.", "canonical_name": "M~ c.· Setalvad"}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 3594, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, and K. Jayaram, for the appellant."}}, {"text": "M. Tarkundi", "label": "LAWYER", "start_char": 3629, "end_char": 3640, "source": "ner", "metadata": {"in_sentence": "V, M. Tarkundi:, E. C. Agarwala, A. T. M. Samptith and M. M. L. Srivastava, for the respondent."}}, {"text": "E. C. Agarwala", "label": "LAWYER", "start_char": 3643, "end_char": 3657, "source": "ner", "metadata": {"in_sentence": "V, M. Tarkundi:, E. C. Agarwala, A. T. M. Samptith and M. M. L. Srivastava, for the respondent."}}, {"text": "A. T. M. Samptith", "label": "LAWYER", "start_char": 3659, "end_char": 3676, "source": "ner", "metadata": {"in_sentence": "V, M. Tarkundi:, E. C. Agarwala, A. T. M. Samptith and M. M. L. Srivastava, for the respondent."}}, {"text": "M. M. L. Srivastava", "label": "LAWYER", "start_char": 3681, "end_char": 3700, "source": "ner", "metadata": {"in_sentence": "V, M. Tarkundi:, E. C. Agarwala, A. T. M. Samptith and M. M. L. Srivastava, for the respondent."}}, {"text": "I. D. DuA", "label": "JUDGE", "start_char": 3739, "end_char": 3748, "source": "ner", "metadata": {"in_sentence": "The Judgment of I. D. DuA and c. A. VAID!ALINGAM, JJ."}}, {"text": "A. VAID!ALINGAM", "label": "JUDGE", "start_char": 3756, "end_char": 3771, "source": "ner", "metadata": {"in_sentence": "The Judgment of I. D. DuA and c. A. VAID!ALINGAM, JJ."}}, {"text": "VA!D!ALINGAM", "label": "JUDGE", "start_char": 3794, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "was delivered by VA!D!ALINGAM, J. A. ALAGIRISWAMI, J. gave a separate opinion."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 3811, "end_char": 3826, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": true}}, {"text": "VAIDJALINGAM", "label": "JUDGE", "start_char": 3857, "end_char": 3869, "source": "ner", "metadata": {"in_sentence": "VAIDJALINGAM, J .-The short, question that arises for consideration in this appeal, by special leave; is whether order dated March 31, 1969, passed by the Court of Small Causes, Madras, in H.R.C. No.", "canonical_name": "VAIDJALINGAM"}}, {"text": "Madras", "label": "GPE", "start_char": 4264, "end_char": 4270, "source": "ner", "metadata": {"in_sentence": "The facts leading upto the passing of the order niay be stated :\n\nThe appellant was occupying a premises in Madras as a tenant His landlady filed an application H.R.C. No."}}, {"text": "October 23, 1967", "label": "DATE", "start_char": 4626, "end_char": 4642, "source": "ner", "metadata": {"in_sentence": "The appellant for purposes of his occupation purchased the premises on October 23, 1967, as per registered document No."}}, {"text": "Mylapore", "label": "GPE", "start_char": 4715, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "1633 of 1967 in Sub-Registrar's Office, Mylapore."}}, {"text": "January 27, 1968", "label": "DATE", "start_char": 5153, "end_char": 5169, "source": "ner", "metadata": {"in_sentence": "On the same day i.e. January 27, 1968, the appellant issued two notices to the respondent, his tenant in respect of the suit premises, terminating tenancy ol the Respondent under section 106 of the Transfer of Property Ac<t and calling upon him to quit and deliver vacant possession on February 29, 1968."}}, {"text": "section 106", "label": "PROVISION", "start_char": 5311, "end_char": 5322, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras-14", "label": "GPE", "start_char": 6038, "end_char": 6047, "source": "ner", "metadata": {"in_sentence": "2, Lakshmipuram, 1st street, Madras-14, and to his having no other house of his own in the city of Madras except the suit premises."}}, {"text": "section 10(3)(a)(i)", "label": "PROVISION", "start_char": 6584, "end_char": 6603, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 7351, "end_char": 7361, "source": "regex", "metadata": {"statute": null}}, {"text": "July 19, 1968", "label": "DATE", "start_char": 7610, "end_char": 7623, "source": "ner", "metadata": {"in_sentence": "The respondent filed two counter-affidavits, one on July 19, 1968 and another on January 14, 1969."}}, {"text": "January 14, 1969", "label": "DATE", "start_char": 7639, "end_char": 7655, "source": "ner", "metadata": {"in_sentence": "The respondent filed two counter-affidavits, one on July 19, 1968 and another on January 14, 1969."}}, {"text": "R. M. Seshadri", "label": "ORG", "start_char": 7914, "end_char": 7928, "source": "ner", "metadata": {"in_sentence": "According to him, the tenant of the premises was and continues to be at the relevant time M/ s. R. M. Seshadri, a partnership firm."}}, {"text": "R. M. Seshadri", "label": "RESPONDENT", "start_char": 8764, "end_char": 8778, "source": "ner", "metadata": {"in_sentence": "Finally he raised a contentiQn that the tenant, M/s. R. M. Seshadri, has spent enonnous amounts on the house acting on the assurance of its previous owner that the house would never be sold and the tenant of the premises would never be evicted.", "canonical_name": "R. M. SESHADRI"}}, {"text": "January 16, 1969", "label": "DATE", "start_char": 9139, "end_char": 9155, "source": "ner", "metadata": {"in_sentence": "The enquiry before the Court of Small Causes appears to have commenced on January 16, 1969."}}, {"text": "February 20, 1969", "label": "DATE", "start_char": 9254, "end_char": 9271, "source": "ner", "metadata": {"in_sentence": "The appellant was examined on that day as PW 1 and his evidence appears to have spread over till February 20, 1969."}}, {"text": "Seethalakshmi Ammal", "label": "OTHER_PERSON", "start_char": 9364, "end_char": 9383, "source": "ner", "metadata": {"in_sentence": "In the course of his evidence, he has spoken to him being a tenant of a house of which one Seethalakshmi Ammal was the landlady and to her having filed an awlication for eviction agains't him, to his purchasing the present suit premises on Octobier 23, 1967, for purposes of his own occupation, to the respondent having been a tenant against the original landlord at the time of purchase and later attorney to him, to the payment of rent by."}}, {"text": "Octobier 23, 1967", "label": "DATE", "start_char": 9513, "end_char": 9530, "source": "ner", "metadata": {"in_sentence": "In the course of his evidence, he has spoken to him being a tenant of a house of which one Seethalakshmi Ammal was the landlady and to her having filed an awlication for eviction agains't him, to his purchasing the present suit premises on Octobier 23, 1967, for purposes of his own occupation, to the respondent having been a tenant against the original landlord at the time of purchase and later attorney to him, to the payment of rent by."}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 9852, "end_char": 9876, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "January 27, 1969", "label": "DATE", "start_char": 10542, "end_char": 10558, "source": "ner", "metadata": {"in_sentence": "The last exhibit rthat was filed by him was Exhibit P. 45, which was a certified copy of the order in H.R.C. 1924 of 1967, which showed that an order of eviction had been passed against the appellant on January 27, 1968, and he was given time till January 27, 1969, for vacating the premises."}}, {"text": "March 31, 1969", "label": "DATE", "start_char": 10842, "end_char": 10856, "source": "ner", "metadata": {"in_sentence": "On March 31, 1969, both parties entered into a compromise in the following terms :\n\n\"MEMO OF COMPROMISE\n\nThe Respondent hereby withdraws his defence in the aforesaid uetition and submits to a decree for eviction unconditionally."}}, {"text": "R. M. SESHADRI", "label": "JUDGE", "start_char": 11214, "end_char": 11228, "source": "ner", "metadata": {"in_sentence": "K, K, CHARI V, R. M. SESHADRI (Vaidia/ingam, J.) 6~5\n\n( 3) The Respondent agrees to vacate the petition premises and hand over possession of the entire petition premises to the petitioner on or before the said date 1iz.", "canonical_name": "R. M. SESHADRI"}}, {"text": "Vaidia", "label": "JUDGE", "start_char": 11230, "end_char": 11236, "source": "ner", "metadata": {"in_sentence": "K, K, CHARI V, R. M. SESHADRI (Vaidia/ingam, J.) 6~5\n\n( 3) The Respondent agrees to vacate the petition premises and hand over possession of the entire petition premises to the petitioner on or before the said date 1iz.", "canonical_name": "VAIDJALINGAM"}}, {"text": "section 10(3)(a)(i)", "label": "PROVISION", "start_char": 11872, "end_char": 11891, "source": "regex", "metadata": {"statute": null}}, {"text": "5-6-1969", "label": "DATE", "start_char": 12070, "end_char": 12078, "source": "ner", "metadata": {"in_sentence": "By consent eviction is ordered granting time to vacate till 5-6-1969."}}, {"text": "M/s. R. M. Seshadri", "label": "ORG", "start_char": 12425, "end_char": 12444, "source": "ner", "metadata": {"in_sentence": "he appellant, namely- ( 1) he was not a tenant of the premises and that on the other hand, the tenant of the pre.mises was M/s. R. M. Seshadri, a partnership firm; '( 2) the claim of the appellant that he requires the house for the occupation is not bona fide; '(3) the purchase of the premises by the appellant is not lawful; { 4) the tenant, M/s. R. M. Seshadri, has spent enormous amounts by way of repairs and improvements; and ( 5) the notice determining the tenancy is not in accordance with law.·"}}, {"text": "June 5, 1969", "label": "DATE", "start_char": 14136, "end_char": 14148, "source": "ner", "metadata": {"in_sentence": "In this letter after referring to the compromise filed\n\nin the court as well as the order passed thereon, he gave an under' taking 'to vacate the premises on or before June 5, 1969."}}, {"text": "S. M.\n\nSundararn", "label": "OTHER_PERSON", "start_char": 15124, "end_char": 15140, "source": "ner", "metadata": {"in_sentence": "When the time lor delivery of property was drawing near, the respondent's son, one S. M.\n\nSundararn, filed a suit in the City Civil Court, Madras, for a declaration that the purchase by the appellant of the suit property was void."}}, {"text": "City Civil Court, Madras", "label": "COURT", "start_char": 15162, "end_char": 15186, "source": "ner", "metadata": {"in_sentence": "When the time lor delivery of property was drawing near, the respondent's son, one S. M.\n\nSundararn, filed a suit in the City Civil Court, Madras, for a declaration that the purchase by the appellant of the suit property was void."}}, {"text": "December 12, 1969", "label": "DATE", "start_char": 15524, "end_char": 15541, "source": "ner", "metadata": {"in_sentence": "The suit was tried on merits and was ultimately dismiSsed by the City CiV11 Court on December 12, 1969 with costs of the appellant."}}, {"text": "section 10", "label": "PROVISION", "start_char": 16662, "end_char": 16672, "source": "regex", "metadata": {"statute": null}}, {"text": "March 18, 1970", "label": "DATE", "start_char": 17277, "end_char": 17291, "source": "ner", "metadata": {"in_sentence": "The learned City Civil Judge b\\y his order dated March 18, 1970, over-ruled the objections raised 1:zy the respondent and dis- ."}}, {"text": "September 15,· 1970", "label": "DATE", "start_char": 17643, "end_char": 17662, "source": "ner", "metadata": {"in_sentence": "The High Court by its judgment and oroer dated September 15,· 1970, has reversed the, urder."}}, {"text": "March 31; 1969", "label": "DATE", "start_char": 17823, "end_char": 17837, "source": "ner", "metadata": {"in_sentence": "The learned Judge has held that the decree for eviction dated March 31; 1969, is solely passed on the basis of the E compromise and the Rent Controller has not applied his mind to satisfy' himself whether the bona: fide requirement of the landlord has been established."}}, {"text": "M~ c.· Setalvad", "label": "LAWYER", "start_char": 18505, "end_char": 18520, "source": "ner", "metadata": {"in_sentence": "• •' , - '• • '_' •' I '• • Mr. M~ c.· Setalvad, learned counsel for the appellant; has urged that the High Court has misunderstood and.", "canonical_name": "M~ c.· Setalvad"}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 20089, "end_char": 20097, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkunde, learned counsel for the respondent, urged that the deree for evictioh has been passed exclusively on the basis of the compromise entered into by the parties."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 21506, "end_char": 21516, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 21573, "end_char": 21583, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 22852, "end_char": 22862, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 14 to 16", "label": "PROVISION", "start_char": 22996, "end_char": 23013, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 14 to 16", "label": "PROVISION", "start_char": 23041, "end_char": 23058, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 23078, "end_char": 23087, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 23219, "end_char": 23228, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 25039, "end_char": 25049, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi and Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 25061, "end_char": 25099, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 4", "label": "PROVISION", "start_char": 25733, "end_char": 25742, "source": "regex", "metadata": {"linked_statute_text": "the Delhi and Ajmer Rent Control Act, 1952", "statute": "the Delhi and Ajmer Rent Control Act, 1952"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25748, "end_char": 25775, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi and Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 25894, "end_char": 25932, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 13", "label": "PROVISION", "start_char": 26094, "end_char": 26104, "source": "regex", "metadata": {"linked_statute_text": "the Delhi and Ajmer Rent Control Act, 1952", "statute": "the Delhi and Ajmer Rent Control Act, 1952"}}, {"text": "[1969] 2 S.C.R. 432", "label": "CASE_CITATION", "start_char": 27182, "end_char": 27201, "source": "regex", "metadata": {}}, {"text": "K. K. CHARI V", "label": "JUDGE", "start_char": 27205, "end_char": 27218, "source": "ner", "metadata": {"in_sentence": "K. K. CHARI V, R. M. SESHADRI (Vaidialingam, J.'I 701\n\nof a decree passed for eviction on compromise.", "canonical_name": "K. K. CHARI V"}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 27236, "end_char": 27248, "source": "ner", "metadata": {"in_sentence": "K. K. CHARI V, R. M. SESHADRI (Vaidialingam, J.'I 701\n\nof a decree passed for eviction on compromise.", "canonical_name": "VAIDJALINGAM"}}, {"text": "section 47", "label": "PROVISION", "start_char": 28332, "end_char": 28342, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 28344, "end_char": 28364, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 28428, "end_char": 28438, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "section 13", "label": "PROVISION", "start_char": 28642, "end_char": 28652, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Bahadur Singh", "label": "OTHER_PERSON", "start_char": 28688, "end_char": 28701, "source": "ner", "metadata": {"in_sentence": "Following the decision in Bahadur Singh & Anr.", "canonical_name": "Bahadur .'Singh's('i case"}}, {"text": "section 13", "label": "PROVISION", "start_char": 29230, "end_char": 29240, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "section 13", "label": "PROVISION", "start_char": 30109, "end_char": 30119, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 30277, "end_char": 30287, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 34491, "end_char": 34501, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 36780, "end_char": 36790, "source": "regex", "metadata": {"statute": null}}, {"text": "section 106", "label": "PROVISION", "start_char": 40257, "end_char": 40268, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 40276, "end_char": 40300, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 15, 1970", "label": "DATE", "start_char": 40734, "end_char": 40752, "source": "ner", "metadata": {"in_sentence": "The order and judgment dated September 15, 1970, of the High Cou~ re set aside and the order dated March 18, 1970, of the City ClVll Court, Madras,."}}, {"text": "City ClVll Court, Madras", "label": "COURT", "start_char": 40827, "end_char": 40851, "source": "ner", "metadata": {"in_sentence": "The order and judgment dated September 15, 1970, of the High Cou~ re set aside and the order dated March 18, 1970, of the City ClVll Court, Madras,."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 40898, "end_char": 40910, "source": "ner", "metadata": {"in_sentence": "ALAGIRISWAMI., ! ·-:---!", "canonical_name": "Alagiriswami"}}, {"text": "Va1d1ahngam", "label": "JUDGE", "start_char": 40978, "end_char": 40989, "source": "ner", "metadata": {"in_sentence": "agree with the order proposed by my A Jearned brother, Va1d1ahngam, J. but I think it is necessary to add a few words of my own."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 41220, "end_char": 41237, "source": "ner", "metadata": {"in_sentence": "The learned Single Judge of the Madras High Court, who\n\nllowed the repondent'.s petition, ws mainly influenced by the JUdgme11ts of thts Court m Bahadur Smgh v. Muni Subrat Dass('), Ferozi Lal v. Man Mal(') and Kaushalya Devi v. K. L. Bansal(')."}}, {"text": "section 10", "label": "PROVISION", "start_char": 42426, "end_char": 42436, "source": "regex", "metadata": {"statute": null}}, {"text": "V aidialin-", "label": "JUDGE", "start_char": 43342, "end_char": 43353, "source": "ner", "metadata": {"in_sentence": "The true approach has been pointed out by our learned brother, V aidialin- gam J. He has pointed out that while the decision in Bahadur .'Singh's('i case was an authority for the proposition that a court\n\n. ("}}, {"text": "Bahadur .'Singh's('i case", "label": "OTHER_PERSON", "start_char": 43407, "end_char": 43432, "source": "ner", "metadata": {"in_sentence": "The true approach has been pointed out by our learned brother, V aidialin- gam J. He has pointed out that while the decision in Bahadur .'Singh's('i case was an authority for the proposition that a court\n\n. (", "canonical_name": "Bahadur .'Singh's('i case"}}, {"text": "S7", "label": "PROVISION", "start_char": 43585, "end_char": 43587, "source": "regex", "metadata": {"statute": null}}, {"text": "Kausha/ya Devi", "label": "OTHER_PERSON", "start_char": 44009, "end_char": 44023, "source": "ner", "metadata": {"in_sentence": "ev1ct10n has been made out by a landlord; how exactly that satisfaction was to be expressed by the court or gathered from the materials, has not been laid down in that decision; that in Kausha/ya Devi's case also the manner in which the court's satisfaction was to."}}, {"text": "Ferozi Lars", "label": "OTHER_PERSON", "start_char": 44164, "end_char": 44175, "source": "ner", "metadata": {"in_sentence": "be expressed or gathered has not tJeen dealt with; mor has the decisioµ in Ferozi Lars case given an indication as to how the satisfaction of a court could be expressed or gathered in a particular case."}}, {"text": "section 10", "label": "PROVISION", "start_char": 45679, "end_char": 45689, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 47060, "end_char": 47069, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 47073, "end_char": 47100, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 115", "label": "PROVISION", "start_char": 47771, "end_char": 47782, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 47790, "end_char": 47795, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 227", "label": "PROVISION", "start_char": 47811, "end_char": 47822, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "section 10", "label": "PROVISION", "start_char": 48476, "end_char": 48486, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "section 10", "label": "PROVISION", "start_char": 48868, "end_char": 48878, "source": "regex", "metadata": {"statute": null}}, {"text": "agiriswami", "label": "JUDGE", "start_char": 50018, "end_char": 50028, "source": "ner", "metadata": {"in_sentence": "K. K •. CHARI v. R. M. SESHADRI (A/agiriswami, J.) 709,\n\nthe form of a compromise cannot make the consent.any the !"}}, {"text": "Order 23, Rule 3", "label": "PROVISION", "start_char": 50119, "end_char": 50135, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 50139, "end_char": 50166, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 50264, "end_char": 50287, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 23, Rule 3", "label": "PROVISION", "start_char": 50410, "end_char": 50426, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 32, Rule 7", "label": "PROVISION", "start_char": 50570, "end_char": 50586, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 50590, "end_char": 50617, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "is no such provision in the Rent Control Act", "label": "STATUTE", "start_char": 50735, "end_char": 50779, "source": "regex", "metadata": {}}, {"text": "section 10(3)(e)", "label": "PROVISION", "start_char": 51950, "end_char": 51966, "source": "regex", "metadata": {"statute": null}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 52476, "end_char": 52488, "source": "ner", "metadata": {"in_sentence": "It is not :necessary to refer to the three decisions of this Court which have been sufficiently discussed by our learned brother, Vaidialingam, J. I may now refer to certain English decisions.", "canonical_name": "VAIDJALINGAM"}}, {"text": "Scrutton", "label": "JUDGE", "start_char": 52570, "end_char": 52578, "source": "ner", "metadata": {"in_sentence": "In Barton v.\n\nFincham( 1) Lord Scrutton L.J. observed : ."}}, {"text": "Atkin L.", "label": "JUDGE", "start_char": 52962, "end_char": 52970, "source": "ner", "metadata": {"in_sentence": "Lord Atkin L. J. observed :\n\n\"If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona {ide3 of the admission, the Court is under no obligation to make further enquiry as to the question of fact.\"", "canonical_name": "Atkin L."}}, {"text": "Atkin", "label": "JUDGE", "start_char": 53305, "end_char": 53310, "source": "ner", "metadata": {"in_sentence": "In Thome v. Smith after referring to the observations of Atkin, LJ.", "canonical_name": "Atkin L."}}, {"text": "Bucknill", "label": "JUDGE", "start_char": 53349, "end_char": 53357, "source": "ner", "metadata": {"in_sentence": "and Scrutton, L.J. (supra), Lord Bucknill, L.J. pointed out:\n\n\"But in the present case it is, I think, reasonably clear that the tenant, in effect, agreed to the order because at the time when the landlord asked the court to make the order the landlord by his own statements had satisfied the tenant that he intended to occupy the house himself and he, the tenant, could not hope successfully to resist the claim."}}, {"text": "Somervell", "label": "JUDGE", "start_char": 54395, "end_char": 54404, "source": "ner", "metadata": {"in_sentence": "Lord Justice Somervell referred to rule 18 of the rules made under the Act of 1920, there under consideration, to the following effect :\n\n\"Where proceedings are taken in the county court G for the recovery of rent of any premises to which the Act applies, or of interest on a mortgage to which the Act applies, or for the recovery of possession of any premises to which the Act applies, or for the ejectment of a tenant from any such premises, the court shall, before makin!("}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 56798, "end_char": 56815, "source": "ner", "metadata": {"in_sentence": "In its decision in Babu Ram Sharma v. Pal Singh(') the Division Bench of the Punjab High Court, of which our learned brother Dua, J. was a member, had this to say on the point at issue :\n\n\"According to this section the landlo!'d is entitled to seek eviction of his tenant on certain grounds, and the Rent Controller, after giving notice to the tenant, is empowered."}}, {"text": "Dua", "label": "JUDGE", "start_char": 56846, "end_char": 56849, "source": "ner", "metadata": {"in_sentence": "In its decision in Babu Ram Sharma v. Pal Singh(') the Division Bench of the Punjab High Court, of which our learned brother Dua, J. was a member, had this to say on the point at issue :\n\n\"According to this section the landlo!'d is entitled to seek eviction of his tenant on certain grounds, and the Rent Controller, after giving notice to the tenant, is empowered."}}, {"text": "section 13", "label": "PROVISION", "start_char": 57295, "end_char": 57305, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 57902, "end_char": 57912, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 58195, "end_char": 58204, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 58208, "end_char": 58218, "source": "regex", "metadata": {"statute": null}}, {"text": "Grover", "label": "JUDGE", "start_char": 58497, "end_char": 58503, "source": "ner", "metadata": {"in_sentence": "In Vas Dev v. Milkhi Ram (supra) Justice Grover of the Punjab\n\nHigh Court (as he then was) after referring to the three English cases, already referred to above, observed :\n\n\"From the above discussion of the English cases, the principle which has also been accepted by the Bench of this Court is quite clear that if the tenant admits after a suit for ejectment has been filed that the landlord is entitled to possession on one of the statutory grounds the court can make an appropriate order or ii the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the\n\ntenant accepts that representation and submits to an order, then also the Court will ble fully justified in making a valid order of eviction."}}]}
{"document_id": "1973_3_714_727_EN", "year": 1973, "text": "UNION OF INDIA v.\n\nG. R. PRABHAVALKAR & ORS.\n\n(with connected appeal) March 16, 1973\n\n(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nStates Reorganisation Act (37 of 1956) s. 115-Equation of Officers fronz diflerent States when integrated-Principles.\n\nUnder s. 115 df the States R ... organisation Act, 1956, the Central Government has to determine the principles governing the equation of posts and prepare a common gradation list by integration of sen.ices in different States which have been reorganised. The Central Governme.nt is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and the preparation of the gradation list. It must give full and fair opportunity to the parties affected to make representations and' must give proper consideration to those representations.\n\nTo assist the Central Government in thiS task and for a proper consideration of the representations the Central Government is empowered to establish an Advisory Committee.\n\nIt is not for the Court to lay down the principles to be adopted for the purpose of equation so long as the Central Government Acts properly according to the provisions of the Act.\n\nThe power of the Court is only to see that the authority has acted properly in accordance with the statute; and it cannot go into the merits of the equation of posts which is a matter within the province of the Central Government.. Further, in the case of equation of posts, especially among officers who arc allotted from other States, it cannot be done with any mathen1atical accuracy.\n\nThere will be some hardship or other caused to the officers of one particular region or the other. That is inevitable when service conditions of the officers coming from different regions vary. However, if a particular decision is 1nala fide or arrived on totally irrelevant or extraneous considerations such a deciion can be interferred with by Courts.\n\n[722B-G]\n\nJn the present case, certain sales-tax officers of the Madhya Pradesh State were equated to grade JI officers of the Maharashtra State.\n\nThe , officers of the Bombay State filed a writ petition challenging the order of the Central Government, on the ground that they were not given an opportu.nity to make representations and that the decision had been arriv ed at taking into consideration irrelevant and extraneous ma.tters, and that the Madhya Pradesh officers should have been equated to grade JI[\n\nofficer~ of the Maharashtra State.\n\nThe proceedings were ad!ourned by the High Court to enable the Central Government to consider any repre,., sentations that may be made by the concerned officers.\n\nAfter such consideration the Central Government expressed the view that the equation already made was correCt. The High Court, however, quashed the decisions Of the Central Government, on the grounds that relevant matters were not considered and that irrelevant and extraneous matters were taken into account.\n\nAllowing the appeal to this Court, H\n\nHELD : (I) It is true that a decision taken by the Central Govern ment without giving an opportunity to the officers affected to make repres;;:ntations is not a valid one.\n\nBut the earlier order in the present case\n\nUNION v. G. R. PRABHAVALKAR (Vaidia/ingam, J.) 715\n\nbas been struck down by the High Court, not on the ground that the Bombay Officers (petitioners) had not been given opportunity to lJ\\ake representations, but on other grounds which are not tenable. [724B.Cl\n\n(2) Assuming the Central Government did not give an opportunity to the Bombay Officers to make their representations before passing the earlier order the defect was rectified by the fresh orde\" passed later.\n\n[724C]\n\n(3) The later order shows that the Central Government had considered only very relevant factors and that the decision had been taken in con~\n\nformity with the provisions of the Act. The Central Government had con•tituted a Central Advisory Committee composed of the Chairman of the Union Public Service. Ccimmission, a retired Judge of the High Court and a retired Law Secretary to the Government of India. It was after taking into account the views of that Committee and having regard to the comments of the State Governments and the representations made by the officers concerned that the Central Government took the decision.\n\nThe four factors which had to be taken into account as per the decision at the conference of the representatives of the State Governments and Government of India were all duly considered by the Central Govern ment, and no irrelevant or extraneous matters have influenced the decision of the Central Governmei>t.\n\nNo. maia fides were urged against the authorities [722G; 7230-F; 725A-E]\n\n(4) Section 115(5) (b) refers to a proper consideration of any representation made by any officer. This was satisfied in this case. There is no further obligation to give a personal hearing to the officers con cerned.\n\n[726G-HJ\n\n(5) The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union had become unfructuous. [727C-Dl\n\n[In the circumstances it is not necessary. to consider the point raised by the appellant that where all the fur re!evant factors decided upon had been taken into consideration, the fact that certain. other additional matters relevant to the question had also been taken into account by the Central Government would not make the order of the Central Government erroneous]. r [725E--G; 276B]\n\nUnion of India &· Anr. v. P. K. Roy & Ors. [1969] 2 S.C.R. 186, N. Subba Rao etc. v. Union of India and others, [1972] 2 S.C.R. 862, B. Rajish Rai and others v. Union of India and others, [1973] 1 S.C.C. 61, Ryots of Garabandho and other VillaRers v. Zamindar of Parlakimedi and Another L.R. 70 Indian appeals 129, re'ferred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2303 of 1969.\n\nAppeal by special leave from the judgment and dated February\n\n25. 26, 1969 of the Bombay High Court in Misc. Petition No. 75 of 1967 and Civil Appeal No. 2304 of 1969.\n\nAppeal by special leave from the judgment and order dated February 25, 26, 1969 of the Bombay High Court in Misc.\n\nPetition No. 75/67.\n\nF. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No.\n\n2303) of Respondent No. 11 (in C.A. No. 2304).\n\nK. K. Slnghvi, R. B. Datar; for respondents Nos. 1 to 7 (in both the appeals).\n\nS. I. Des/1pande and A. G. Ranthparkhi, for respondents B Nos. 8, 10 to 13 (in C.A. No. 2303) and for the appellants (in C.A. No. 2304).\n\nB. D. Sharma for respondent Nos. 14 & 15 (in C.A. N'.>.\n\n2303) and respondent No. 8 (in C.A. No. 2304).\n\nThe Judgment of the Court was delivered by\n\nVAJDIALINGAM, J.-These two appeals, by special leave, are directed against the judgment and order dated 25/26th February. 1969, of the Bombiay High Court in Miscellenous Petition No. 75\n\nof 1967, quashing the orders of the Central Government as well as certain other orders equating the post of Sales Tax Officer of old D Madhya Pradesh with the post of Sales Tax Officer, Grade II, of. old Bombay. Civil Appeal No. 2303 of 1969 is by the Union of India and Civil Appeal No. 2304 of 1969 is by some of the Sales Tax Officers of the old Madhya Pradesh State. They are also respondents in the Union's appeal. The appellants, in the latter appeal, support the Union Government in all respects.\n\nIn the course of the judgment, we will refer to the array of parties as in E Civil Appeal No. 2303 of 1969.\n\nRespondnts 8 to 13 and 15, along with s.ix others, were serving as Sales Tax Officers in the State of Madhya Pradesh. On the reorganisation of states as from November l, 1956, these 13 officers were allotted to the bilingual State of Bombay. By Noti- F fication dated November 16, 1957, the State Government issued an order for equation of the various posts. . The Sales Tax Officers from Madhya Pradesh wer~ equated with Sales Tax Officers Grade III of Bombay. At this stage it may be mentioned that in Bombay there were three Grades of Sales Tax Officers, being Grades I, II and ID. On the basis of tile equation adopted by the State Government, a seniority list was publi.shed on May 21, 1959. In the G meanwhile, the Sales Tax Officers allotted from Madhya Pradesh. not sll'lisfied with the decision of the State Govemment equating them with Grade III officers of Bombay, had made representations\n\nto the Central Government. Their grievance was that they should have been equated with Grade II officers of Bombay. The Central Government, having due regard to the principles formuu lated earlier in consultation with the State Governments and after consulting the Central Advisory Committee con!ltituted for the purpvse, accepted the representation of the erstwhile Madhya\n\nA Pradesh Officers and equated them with the Sales Tax Officers, Grade II, in the reconstituted Bombay State. . This decision was conveyed by the Central Government to the State authorities by its Jetter dated April 23, 1960. The State Government gave effect to the decision of the Central Government by its Resolution dated April 27, 1961; and on that basis published also a seniority list B on October 10, 1963, and invited representations and objection; from all the , officers. In this seniority list, the erstwhile Sales Tax Officers of the Madhya Pradesh State were equated with Grade II officers of the Maharashtra State and they were also given suitable ranks. From the records it is seen that only the first respondent, who was already a Sales Tax Officer in the Bombay State, filed a C representation.\n\nHis representation was rejected by the Central Government.\n\nRespondents 1 to 7 and one G. S. Kochrekar (since deceased) filed Miscelleneous Petition No. 75 of 1967 in the High Court. under Article 226, challenging the decision of the Central Go,·- ernment and the State equating the Sales Tax Officers of the D erstwhile Madhya Pradesh State with the Sales Tax Officers, Grad: II, of the Bombay State. Their main ground of attack appears tO have been that in arriving at the decision the Central Government did not give an opportunity to th~ Bombay officers to make their representations and that the decision has been arrived at taking\n\ninto consideration irrelevant and extraneous matters.\n\nThe E Writ Petition was opposed by the Madhya Pradesh Officers. The Central Government was also added as a party at a later stage of the proceedings before the Hil!h Court. On behalf of the Central Government, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, detailing the reasons for passing the order of April 23, 1960.. The proceedings were adjourned by the High Court to enable the Central Government to consider the represen- F tations that may be made by the concerned officers. Ultimately the Central Government, by its order dated February 15. 1969. expressed the view that the equation already made was correct.\n\nThe High Court has quashed the disions of the Central Government dated ApriL23, 1960 and February 15, 1969 as also the G Resolution dated April 27, 1961 and the seniority list published by the State Government.\n\nThe two grounds on which the High Court has quasned these orders and Notification are :-\n\n( 1) if the matters relevant to be considered for the purpose of equation, are taken into account. the equation made by the Central Government is not . a rational one; and\n\n(2) io eqµatinl( the Sales Tax Officers of Madhya\n\nPradesh with Sales Tax Officers, Grade TI, ol\n\nof Bombay, the Central Government have taken into account irrelevant aJ!ld extraneous matters.\n\nIt is now necessary to advert to the relevant provisions oi. the statute, as also the various orders passed by the Central and State Governments. The States Reorganisation Act, 1956 (hereinafter to be referred to as the Act) was passed on August 31, 1956.\n\nUnder section 2(a), !st of November, 1956, is the 'appointed day', Part X contains provisions as to services. Section 114 deals with all India Services.\n\nSection 115 contains provisions' relating to other services.\n\nThe provision relevant in this section is sub-section 5, clause (b), which is as follows:-\n\nProvisions relating to other services.\n\n\"115 ( 5) The Central Government may by order established one or more Advisory Committees for the purpose of assisting it in regard to\n\n• • • •\n\n(~) the ensuring of fair and equitable treatment\n\nto all persons affected by the provisions oi. this section and the proper consideration of any representation made by such person\",\n\nSection 117, which confers powers on the Central Government to give directions, is a.n follows :-\n\nPower of Centra.l Government to give direction. l 17. \"The Central Government may at any time\n\nefore or after the appointed day give such directions to any State Government as may appear to it to be 1t1ecessary for the purpose of giving effect to the foregoing provisions of this part and the State Government shall comply with such directions\".\n\nIn the affidavit of the Deputy Secretary to the Government of India, Ministry of Home Affairs, filed before the High Court, it has been stated that conferences were held in May 1956 between the representatives of the State Governments and the Government of India ln New Delhi and it was unanimously agreed that in determining the equation of posts, the following factors should be borne in mind:-\n\n( 1 ) the nature and duties of a post;\n\n(2) the responsibilities and J, owers exercised by the officer holdiag a post; the extent oi. the territorial or other charge held or responsibilities discharged;\n\n/ I \\\n\n(3)\n\n(4)\n\nthe minimum qualifications, if any, prescribd recruitme_nt to the post; and . ---- the salary of the post.\n\nfor\n\nThat such a decision was taken is also clear from the circular. of' the State Government dated December 11, 1957. This circular was published for the information of the officers that the general principles to l:Je i, orne in mind and referred to earlier, were to befollowed in the equation of posts. Those principles, it is further stated, were settled at a conference convened by the Government of India in May 1956, which was attended, among others, by the representatives of the former States of Bombay, Madhya Pradesh, Hyderabad, Saurashtra and Kutch.\n\nIt is further stated that the factors decided upon where also coosidered by the Integration Committee of Ministers and were found suitable and that the State\n\nGovernmnt was making equation of posts having due regard to these factors. The State Government by its Resolution dated November 16, 1957, e11uated the Sales Tax Officers of Madhya Pradesh with Sales Tax Officers Grade III of Boml:Jay. This led to representations being made by the Madhya Pradesh Officers to the Central Govem1ment.\n\nIn the affidavit of the Deputy Secretary, it is stated that under the provisions of section 115 (5) of the Act, the Central Government had constituted the Central Advisory Committee for the purpose of assisting it in giving proper consideration to the representations that are made by officers of gazetted cadres.\n\nThe Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India. It is further stated that the representations received from the ex-Madhya Pradesh Sales Tax Officers claiming equation with Grade II officers of Bombay were reforred to the said Ad- ofisory Committee for their consideration and advice. It is further stated that after taking into consideration the points raised by the officers in their representations, the comments of the State Government, the recommendations of the Advisory .Committee and other relevant factors, the Central Government decided that the post of Sales Tax Officer, Madhya Pradesh. (Rs .. 225-600) was to be equated with the post of Sales Tax Officer, Grade II, Bombay (Rs. 300-650). It.is further stated in the affidavit that this decision was conveyed to the State of Bombay tly the Ministry of Home Affairs, Government of India, in its letter dated April 23. 1960.\n\nA persual of the order dated April 23, 1960, of the Central Government also bears out 'I.he above facts.\n\nOn April 27, 1961, the State Government amended its previous Resolution of 1957 so as to accord with the decision of the\n\nCentral Goyernme:it as co:itained in its letter dated April 23, 1960.\n\nOn th_e as1s _of this equauon, the State Government also published a semonty list on October 10, 1963, and called for objections.\n\nThe only representation dated January 9, 1964, received from the first respondent, who pressed his claim to be put in Grade II. was rejected ultimately by the Central Government and this led to the filing of the Writ Petition by the first respondent as well as certain other officers of the Bombay State.\n\nThe High Court has discussed at grea.t length the set-up and the scheme of the Sales Tax Officers in the two States, the nature of •the duties and powers exercised by 'them as well as their salary, method of recruitment, chances of promotion and other matter;.\n\nThe High Court took the four factors, which have been directed to tie borne in mind as a result of the conference held between the representatives of the State Governments and the Central Government and has come to the conclusion that these factors, if correctly apolied, will not justify the equation of the Madhya Pradesh officer' with the Sales Tax Officers, Grade II, of Bombay, In fact the view of the High Court is that on an overall assessment the Sale' Tax Officers in Madhya Pradesh area were in an inferior positio~ and that even the Sales Tax Officer, Grade III, of old Bombay State are superior to the Sales Tax Officers of Madhya Pradesh.\n\nIn another context, the learned Judges observe that no satisfactory material has been made available to the Court to show the supedority of the Stales Tax Officers of Madhya Pradesh over the Sale; Tax Officers, Grade III, of Bombay. The sum and subslance cf the reasoning of the High Court is that as the salary of the ol:l Madhya Pradesh officers is assured by the Act, they should be satisfied if they are equated with Sales Tax Officers. Grade III, of Bombay State.\n\nThe orders were finally struck down on the ground that the relevant factors for equation have n.ot been properly considered and that irrelevant matters have been taken into account.\n\nIt is seen from the judgment of the High Court that on Maren 19, 1968, the proceedings were adjourn_ed to enable the Central Government to consider the representations of the Bombay officers. The order of the High Court dated March 19, 1968, stii:tes that the counsel for the Union Government made a representat10n that it was willing to review the equation of posts of Sales i:ax Officers from the erstwhile State of Madhya Pradesh after heann)!\n\nthe affedted officers from the various integrating areas.\n\nTe Government of India passed an order on February 15, 1969 •. in and by which the original decision dated April 23, 1960, equatmg the Madhya Pradesh officers with Sales Tax Officers Grade II of Bombay, was allowed to stand.\n\nThere is a reference in the judgment that this letter dated February 15, 1969, was given to the learned Judges and that it was also agreed to be shown to the counsel for the Writ Petitioners.\n\nThat the High Court has looked into this letter is also clear from the fact that it says that outside matters, like the hierarchy of the revenue officers under the Land Revenue Code, have been taken into account by the Central Government. There is no other indication in the judgment as to what attack was made on this decision on behalf of the Bomba¥ officers. This order of the Central Government also has been quashed by the High Court.\n\nOn behalf oi. the Union, the learned Additional Solicitor General has urged that the High Court has grossly mis-appreciated the nature of the jurisdiction that it was exercising in such matters.\n\nIt was pressed before us that the Central Government, having due regard to the principles that have bi:en laid down for the purpose of equation of posts and after a proper consideration of the repre--\n\nsentations of the officers and the recommendations of the Advisory Committee, have equated the Madhya Pradesh Sales Tax Officers\n\nwith the Sales Tax Officers, Grade II, Bombay. In arriving at this decision, it is pointed out that no irrelevant factor has been taken into account and the decision is the only possible one that could be arrived at in the circumstances. The representationE made by the officers concerned have been properly considered as is mandatory under the provisions oi. the Act. The Central Government has acted according to the provisions of the Act. Under those circumstances, the learned Additional.Solicitor General urged that the order of the High Court quashing the orders in question was not justified. Mr. S. J. Deshpande, learned counsel for the appellants in Civil Appeal No. 2304 of 1969 and Mr. B. D.\n\nSharma, learned counsel, for the State of Bombay in both these matters have adopted the arguments of the Additional Solicitor General.\n\nMr. K. K. Singhvi learned counsel for the Bombay officers, has pointed out that the orders of the Central Government have been passed in violation of the principles oi. natural justice inasmuch as no opportunity given to the officers concerned to make their representation and they were not given a personal hearing before the Central Government decided against them.\n\nEven the decisions arrived at, as pointed out by the High Court, are based on a consideration of irrelevant and extreneous factors.\n\nHe pointed oufthat the principles formulated the Central Government, in consultation with the State GovernmeJ\\t, for equation of\n\nH posts have not been given due regard. The counsel further urged that the equation made by the Central Government, if allowed to stand, will work greljt hardship to the Sales Tax Officers of Bombay, as it will materially affect their hances of promotion.\n\nHe further pointed ou1 that the State Government has, in accordance with the decision of the High Court, modified the decision equating the Madhya Pradesh officers with Sales Tax Officers, Grade II, of Bombay and, therefore, these appeals have become \"infructuous.\n\nIn our opinion, the contentions of the learned Additional Solicitor General are well founded. The Central Government, under section 115 of the Act, has to determine the principles governing equation of posts and prepare a common gradation list by integration of services.\n\nTo assist it in the task of integration of \"services and for\"\" a proper consideration of representations, the\n\nCentral Government is empowered to establish Advisory Committees. The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists.\n\nIt has also to give a full and fair opportunity to the parties affected to make their represd1tations; and the Central Government has also to give a proper consideration to those representations.\n\nSo long as the Central Government has acted properly according to the provisions of the Act, we are of the view, that a court cannot go into the meril5 or otherwise of equation of posts which is matter within the province \"of the Central Government.\n\nIt is no doubt true that the Central Government must have due regard to the principles enunciated by it in consultation with the states for the purpose of equation of posts. It must not only give an opportunity to the concerned officers to make representations, but it must a15o give those representations a proper consideration. It is not within the province oi the courts fo lay down what are the principles to be adopted for purposes of equation.\n\nThat falls within the purview of the statute concerned and the authorities charged with such duty. The power of the courts is only \"to see that an authority bas acted properly in accordance with the statute. If that is estabilished, the decision of the authorities concerned will have to stand. Ii a particular decision is ma/a fide or arrived at on totally irrelevant and extraneous considerations. such a decision can be interfered with by courts. In this case, no ma/a fides are alleged.\n\nAs to whether any extraneous or irrelevant factors have been taken into account will be dealt with later.\n\nThe High Court is of the view that the equation settled bv the Central Government affects prejudicially the officers of Bombay. By Madhya Pradesh officers being equated with Grade II officers of Bombay State, the High Court observes that-\n\n( a) Bombay officers acting in Grade lI have to revert to Grade III;\n\nU'i!JON v. G. R. PRABHAVALKAR (Vaidialingam, J.) 723\n\n(b) Madhya Pradesh Sales Tax Officers have got large jumps in salary; and\n\n( c) even the little chance of promotion is lost to the Bombay Officers till all the 13 officers from Madhya\n\nradesh retire or are exhausted.\n\nIn our view, the High Court has grossly erred. In the case of equation of posts, especially among officers who are allotted from other states, it canno1 be done with .any mathematical accuracy.\n\nThere will be some hardship or. other caused to the officers of one particular region or other.\n\nThat is inevitable when the service conditions of the officers coming from different regions vary. When the Central Government was impleaded as a party in the Writ Petition before the High Court,. an affidavit of the Deputy secretary, Home Affairs, was filed.\n\nThat affidavit very exhaustively deals with the circumstances under which the Sales Tax Officers of Madhya Pradesh were equa1ed with Sales Tax Officers, Grade II, of Bombay by the Central Government's order dated April 23, 1960.\n\nThe Central Government had constituted the Central Advisory Commhtee as is required under sub-section 5 of section 115 of the Act.\n\nThe composition of the Committee has been 1eferred to earlier. It was, after taking into account the views of the Central Advisory Committee and having due regard to the comments of the State Governments, and the representations made by the officers concerned that the Central Government took the decision.\n\nThe factors which had to be taken into account as per the decision taken at the conference held in May, 1956, were all duly stated to have been considered by the Central Go\"ernment.\n\nWe do not find that any irrelevant or extraneous matters have influenced the decision of the Central Government.\n\nIt is true that a decision taken by the Central Government without giving an opportuni1y to the officers affected to make representations, is not a valid one. It has been so held by this Court in Union of India & Anr. v. R. K. Roy & Ors. (1) The jurisdiction and powers of the Central Government under the Act have also been laid down in N. Suba Rao Etc. v. Union of India and Others(') and D. Rajish Raj and Others v. Union of India and Others('). One of the points that has been stressed by Mr.\n\nSingllvi is that the decision of the Central Government dated April 23, 1960, is opposed to the principles of natural iustice inasmuch as the Bombay Officers had no opportunity of making any representations berore the said order was passed.\n\nWe have alreadv referred to the fact that originally the State Government equated the Madhya Pradesh officers with Sales Tax Officers, Grade III,\n\n\nof Bombay.\n\nThe Madhya Pradesh Officers filed representations to the Cenfral Government against this equation. It is not clear from the records whether any counter 11epresentations were received by the Central Government from the Bombay officers. Nor is it clear whether the Central Government called upon the Bombay Officers to offer their comments or views on claims made by the Madhya Pradesh officers. Anyhow the order came to be passed on April 23, 1960. This order has been struck down by the High Court, not on the ground that the Bombay officers have not been given an opportunity to make representations, but on other grounds.\n\nAssuming that the Central Government did not give an opportunity to the Bombay officers to make their representations before passing the order of April 23, 1960, the defect in this regard s1ands rectified by the fresh order passed on February 15, 1969.\n\nWe have already referred to the fact that during the hearing of the Writ Petition, after the Central Government was impleaded, a representation was made on its behalf that the Union Government was willing to review the equation of posts of Sales Tax Officers from the erstwhile State of Madhya Pradesh after hearing the affected officers from the various integrating areas.\n\nThis representation was incorporated in an order of court dated March 19, 1968 and the proceedings stood adjourned. There is no controversy that all the officers concerned, including the Bombay officers made representations to the Central Government. The Bombay officers wanted the order of April 23, 1960, to lie modified by equating the Madhya Pradesh officers with the Sales Tax Officers, Grade IIJ, of Bombay, as was originally done by the State Government. The Madhya Pradesh officers, on the other hand, reinforced their claim to sustain the order of April 23, 1960. The Central Government passed the order on February 15, 1969. which was made known to the learned Judges hearing the Writ Petition. In fact this is also one of the orders that has been struck down by the High Court. When the order has been struck d.own. it is quite reasonable to infer that the Court and all parties were fully aware of the very elaborate reasons given by the Central Government for equating the Madhya Pradesh Sales Tax Officers with the Sales Tax Officers. Grade 11, of Bombay. There was no attack, so far as we could see, levelled by the Writ Petitioners against this order of the Central Government excepting that a personal hearing was not given to them by the Central Government. The High Court brushed aside this order by a mere statement that the additional matter that was considered by the Central Government related tQI the hierarchy of revenue officers under the Land Revenue Code and that the said matter is outside those to be considered according to the minutes of the joint conference of the representatives of the State and the Central Governments.\n\n1he order dated February 15, 1969, passed by the Central Government, together with the enclosures, is a very lengthy one.\n\nIt clearly shows that they had taken into account the representations made by the officers \"'th in thei former State of Madhya Pradesh a11d the State of Bombay, the various affidavits and counter-affidavits filed ll). the High Coun, the representations made by the Bombay Officers, the commits of the State Government on those representations and the recommendations of the Central Advisory Committee. It is after a consideration of these matters that the Central Government decided to equate the Sales T~ Officers of old Madhya Pradesh with Sales Tax Officers, Grade II, of old Bombay. A copy of the explanatory memorandum to the recommenda- C lions of the Central Advisory Committee has also been forwarded by the Central Government to the State Government. The entire proceedings resulting in the 01der of February 15, 1969, leave no doubt in our minds that the entral Government have considered only very relevant factors and the decision has als.o been taken in conformity with the provisions of the Act. They also show that\n\nthe Cen!ral Government has given a proper consideration to the representations made blY the Bombay and Madhya Pradesh officers. The order deals with every one of the points raised in both sets of representations and it also gives elaborately the reasons for rejecting the represcll'tations of the Bombay officers and for accepting those of the Madhya Pradesh officers.\n\nThe learned Additional Solicitor General pointed out that it. is only necessary that the authorities concerned should bear in mind the four factors, referred to earlier, in the matter of equation of posts. According to him, when once these factors have been properly taken into account, the mere fact that certain other additional or incidental matters relevant to the que.stion have also been considered, will not vitiate the orders passed by the Central Government. In this connection the learned Additional Solicitor General drew our attention to the decision of the judicial Committee in R'yots of Garabend/r(J and Other Villagers v. Zemindar of Parlakimedi and Another('). The provision that the Judicial Committee had to consider was contained in sub-section 2 of section 168 of the Madras Estates Land Act, 1908, that in settling rents the Collector \"shall have regard to the provisions of this Act\".\n\nThe Judicial Committee held that these provisions only require that they must be taken into consideration by the officers concerned and it is impossible to say that there is a duty on the part cf the officers to keep rigidly within the limits imposed by these provisions. Based upon this decision, the con•ontion of the learned Additional Solicitor General was that even if certain ot\\9r additional matters relevant to the question have been taken into\n\n(I) L.R. 70 Indian Appeals 129. 14-L76!Sup, CI 73\n\nSUPREME COURT REPORTS [1973] 3 s.c.ll.\n\naccount by the Central Government, its order cannot be considered to be erroneous. In our view, the earlier order dated April 23, 1960, as well as the latter order dated February 15, 1969, have both been passed by the Central Government having due regard to the prihciples settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.\n\nThis order of February 15, 1969, has not, in our view, received due consideration at the hands of the High Court.\n\nOn the other hand, the High Court has dealt mainly with the order dated April 23, 1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration o.f all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given bi}' the High Court for striking down the previous order, except to say that\n\nthe High Court's view in respect of those matters is not justified.\n\nEven the grievance that the Bombay officers did not have an opportunity to make my representation before the order dated April 23, 1960, was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1969. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.\n\nThe criticism of Mr. Singhvi, learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay officers before passing the order, need not detain us long. Though such a grievance was made faintly during the argumell'ts in the Writ Petition, the High Court has not struck down even this order on this ground.\n\nThe High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable \"the Central Government to consider the representations of the Writ Petitioners\". Therefore the High Court, which passed the order .of March 19, 1968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to \"make re presentations\" and that the Central Government should properly consider the same. Admittedly, representations were made by the W'1t Petitioners an<l, as stated earlier by us, they have been dealt with by the Central G0vernment in its order dated Februarv 15. 1969.\n\nSection 115(5)(b) refers to a proper consideration of anv rep•esentation made by any officer. This is satisfied in this case.\n\nMr. Singhvi, learned Counsel. drew our attention to the decisi\"n of this Court in N. Subba Ra\" Etc. v. Union of India And Others(1) and urged that it is implicit in the said decision\n\n(I) [197212 s.c.c. 862.\n\nthat there is an obligation on the Central Government to give a personal hearing to the officers concerned under the Act. We have gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr. Singhvi.\n\nMr. Singh vi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous.\n\nIn the result the judgment and order dated 25 /26th February, 1969, of the High Court are set aside and Civil Appeals Nos. 2303 and 2304 of 1969 are allowed. There will be no order as to costs in both the appeals.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 97, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "G. R. PRABHAVALKAR & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "G. R. PRABHAVALKAR & ORS", "offset_not_found": false}}, {"text": "March 16, 1973", "label": "DATE", "start_char": 70, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "(with connected appeal) March 16, 1973\n\n(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J\n\nStates Reorganisation Act (37 of 1956) s. 115-Equation of Officers fronz diflerent States when integrated-Principles."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 87, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "A. 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DUA", "offset_not_found": false}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 144, "end_char": 169, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 115", "label": "PROVISION", "start_char": 183, "end_char": 189, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act", "statute": "States Reorganisation Act"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 269, "end_char": 275, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act", "statute": "States Reorganisation Act"}}, {"text": "Central Government", "label": "ORG", "start_char": 324, "end_char": 342, "source": "ner", "metadata": {"in_sentence": "Under s. 115 df the States R ... organisation Act, 1956, the Central Government has to determine the principles governing the equation of posts and prepare a common gradation list by integration of sen.ices in different States which have been reorganised."}}, {"text": "Madhya Pradesh State", "label": "GPE", "start_char": 2003, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "[722B-G]\n\nJn the present case, certain sales-tax officers of the Madhya Pradesh State were equated to grade JI officers of the Maharashtra State."}}, {"text": "Maharashtra State", "label": "GPE", "start_char": 2065, "end_char": 2082, "source": "ner", "metadata": {"in_sentence": "[722B-G]\n\nJn the present case, certain sales-tax officers of the Madhya Pradesh State were equated to grade JI officers of the Maharashtra State."}}, {"text": "Bombay State", "label": "GPE", "start_char": 2107, "end_char": 2119, "source": "ner", "metadata": {"in_sentence": "The , officers of the Bombay State filed a writ petition challenging the order of the Central Government, on the ground that they were not given an opportu.nity to make representations and that the decision had been arriv ed at taking into consideration irrelevant and extraneous ma.tters, and that the Madhya Pradesh officers should have been equated to grade JI[\n\nofficer~ of the Maharashtra State."}}, {"text": "Madhya Pradesh", "label": "ORG", "start_char": 2388, "end_char": 2402, "source": "ner", "metadata": {"in_sentence": "The , officers of the Bombay State filed a writ petition challenging the order of the Central Government, on the ground that they were not given an opportu.nity to make representations and that the decision had been arriv ed at taking into consideration irrelevant and extraneous ma.tters, and that the Madhya Pradesh officers should have been equated to grade JI[\n\nofficer~ of the Maharashtra State."}}, {"text": "Central Govern", "label": "ORG", "start_char": 3050, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal to this Court, H\n\nHELD : (I) It is true that a decision taken by the Central Govern ment without giving an opportunity to the officers affected to make repres;;:ntations is not a valid one."}}, {"text": "Government of India", "label": "ORG", "start_char": 4079, "end_char": 4098, "source": "ner", "metadata": {"in_sentence": "Ccimmission, a retired Judge of the High Court and a retired Law Secretary to the Government of India."}}, {"text": "Central Governmei", "label": "ORG", "start_char": 4614, "end_char": 4631, "source": "ner", "metadata": {"in_sentence": "The four factors which had to be taken into account as per the decision at the conference of the representatives of the State Governments and Government of India were all duly considered by the Central Govern ment, and no irrelevant or extraneous matters have influenced the decision of the Central Governmei>t.\n\nNo."}}, {"text": "Section 115(5)", "label": "PROVISION", "start_char": 4714, "end_char": 4728, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 2 S.C.R. 186", "label": "CASE_CITATION", "start_char": 5563, "end_char": 5582, "source": "regex", "metadata": {}}, {"text": "[1972] 2 S.C.R. 862", "label": "CASE_CITATION", "start_char": 5632, "end_char": 5651, "source": "regex", "metadata": {}}, {"text": "F. S. Nariman", "label": "PETITIONER", "start_char": 6218, "end_char": 6231, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No."}}, {"text": "G. Das", "label": "OTHER_PERSON", "start_char": 6270, "end_char": 6276, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No."}}, {"text": "A B. D. Sharma", "label": "LAWYER", "start_char": 6278, "end_char": 6292, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 6297, "end_char": 6308, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No."}}, {"text": "K. K. Slnghvi", "label": "LAWYER", "start_char": 6391, "end_char": 6404, "source": "ner", "metadata": {"in_sentence": "K. K. Slnghvi, R. B. Datar; for respondents Nos.", "canonical_name": "K. K. Slnghvi"}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 6406, "end_char": 6417, "source": "ner", "metadata": {"in_sentence": "K. K. Slnghvi, R. B. Datar; for respondents Nos."}}, {"text": "S. I. Des/1pande", "label": "LAWYER", "start_char": 6471, "end_char": 6487, "source": "ner", "metadata": {"in_sentence": "S. I. Des/1pande and A. G. Ranthparkhi, for respondents B Nos.", "canonical_name": "S. I. Des/1pande"}}, {"text": "A. G. Ranthparkhi", "label": "LAWYER", "start_char": 6492, "end_char": 6509, "source": "ner", "metadata": {"in_sentence": "S. I. Des/1pande and A. G. Ranthparkhi, for respondents B Nos."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 6609, "end_char": 6621, "source": "ner", "metadata": {"in_sentence": "B. D. Sharma for respondent Nos.", "canonical_name": "B. D.\n\nSharma"}}, {"text": "VAJDIALINGAM", "label": "JUDGE", "start_char": 6758, "end_char": 6770, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAJDIALINGAM, J.-These two appeals, by special leave, are directed against the judgment and order dated 25/26th February."}}, {"text": "Union of India", "label": "ORG", "start_char": 7197, "end_char": 7211, "source": "ner", "metadata": {"in_sentence": "2303 of 1969 is by the Union of India and Civil Appeal No."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 7661, "end_char": 7675, "source": "ner", "metadata": {"in_sentence": "Respondnts 8 to 13 and 15, along with s.ix others, were serving as Sales Tax Officers in the State of Madhya Pradesh."}}, {"text": "November l, 1956", "label": "DATE", "start_char": 7717, "end_char": 7733, "source": "ner", "metadata": {"in_sentence": "On the reorganisation of states as from November l, 1956, these 13 officers were allotted to the bilingual State of Bombay."}}, {"text": "Bombay", "label": "GPE", "start_char": 7793, "end_char": 7799, "source": "ner", "metadata": {"in_sentence": "On the reorganisation of states as from November l, 1956, these 13 officers were allotted to the bilingual State of Bombay."}}, {"text": "November 16, 1957", "label": "DATE", "start_char": 7827, "end_char": 7844, "source": "ner", "metadata": {"in_sentence": "By Noti- F fication dated November 16, 1957, the State Government issued an order for equation of the various posts. ."}}, {"text": "May 21, 1959", "label": "DATE", "start_char": 8242, "end_char": 8254, "source": "ner", "metadata": {"in_sentence": "On the basis of tile equation adopted by the State Government, a seniority list was publi.shed on May 21, 1959."}}, {"text": "Madhya", "label": "GPE", "start_char": 8828, "end_char": 8834, "source": "ner", "metadata": {"in_sentence": "The Central Government, having due regard to the principles formuu lated earlier in consultation with the State Governments and after consulting the Central Advisory Committee con!ltituted for the purpvse, accepted the representation of the erstwhile Madhya\n\nA Pradesh Officers and equated them with the Sales Tax Officers, Grade II, in the reconstituted Bombay State. ."}}, {"text": "April 27, 1961", "label": "DATE", "start_char": 9161, "end_char": 9175, "source": "ner", "metadata": {"in_sentence": "The State Government gave effect to the decision of the Central Government by its Resolution dated April 27, 1961; and on that basis published also a seniority list B on October 10, 1963, and invited representations and objection; from all the , officers."}}, {"text": "10, 1963", "label": "DATE", "start_char": 9240, "end_char": 9248, "source": "ner", "metadata": {"in_sentence": "The State Government gave effect to the decision of the Central Government by its Resolution dated April 27, 1961; and on that basis published also a seniority list B on October 10, 1963, and invited representations and objection; from all the , officers."}}, {"text": "Maharashtra State", "label": "ORG", "start_char": 9446, "end_char": 9463, "source": "ner", "metadata": {"in_sentence": "In this seniority list, the erstwhile Sales Tax Officers of the Madhya Pradesh State were equated with Grade II officers of the Maharashtra State and they were also given suitable ranks."}}, {"text": "S. Kochrekar", "label": "RESPONDENT", "start_char": 9739, "end_char": 9751, "source": "ner", "metadata": {"in_sentence": "Respondents 1 to 7 and one G. S. Kochrekar (since deceased) filed Miscelleneous Petition No."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9838, "end_char": 9849, "source": "regex", "metadata": {"statute": null}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 10600, "end_char": 10624, "source": "ner", "metadata": {"in_sentence": "On behalf of the Central Government, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, detailing the reasons for passing the order of April 23, 1960.. The proceedings were adjourned by the High Court to enable the Central Government to consider the represen- F tations that may be made by the concerned officers."}}, {"text": "April 23, 1960", "label": "DATE", "start_char": 10673, "end_char": 10687, "source": "ner", "metadata": {"in_sentence": "On behalf of the Central Government, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, detailing the reasons for passing the order of April 23, 1960.. The proceedings were adjourned by the High Court to enable the Central Government to consider the represen- F tations that may be made by the concerned officers."}}, {"text": "February 15. 1969", "label": "DATE", "start_char": 10906, "end_char": 10923, "source": "ner", "metadata": {"in_sentence": "Ultimately the Central Government, by its order dated February 15."}}, {"text": "February 15, 1969", "label": "DATE", "start_char": 11078, "end_char": 11095, "source": "ner", "metadata": {"in_sentence": "The High Court has quashed the disions of the Central Government dated ApriL23, 1960 and February 15, 1969 as also the G Resolution dated April 27, 1961 and the seniority list published by the State Government."}}, {"text": "Central and State Governments", "label": "ORG", "start_char": 11773, "end_char": 11802, "source": "ner", "metadata": {"in_sentence": "the statute, as also the various orders passed by the Central and State Governments."}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 11808, "end_char": 11839, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "August 31, 1956", "label": "DATE", "start_char": 11897, "end_char": 11912, "source": "ner", "metadata": {"in_sentence": "The States Reorganisation Act, 1956 (hereinafter to be referred to as the Act) was passed on August 31, 1956."}}, {"text": "section 2(a)", "label": "PROVISION", "start_char": 11921, "end_char": 11933, "source": "regex", "metadata": {"linked_statute_text": "The States Reorganisation Act, 1956", "statute": "The States Reorganisation Act, 1956"}}, {"text": "Section 114", "label": "PROVISION", "start_char": 12025, "end_char": 12036, "source": "regex", "metadata": {"linked_statute_text": "The States Reorganisation Act, 1956", "statute": "The States Reorganisation Act, 1956"}}, {"text": "Section 115", "label": "PROVISION", "start_char": 12069, "end_char": 12080, "source": "regex", "metadata": {"linked_statute_text": "The States Reorganisation Act, 1956", "statute": "The States Reorganisation Act, 1956"}}, {"text": "section 5", "label": "PROVISION", "start_char": 12177, "end_char": 12186, "source": "regex", "metadata": {"linked_statute_text": "The States Reorganisation Act, 1956", "statute": "The States Reorganisation Act, 1956"}}, {"text": "Section 117", "label": "PROVISION", "start_char": 12591, "end_char": 12602, "source": "regex", "metadata": {"linked_statute_text": "The States Reorganisation Act, 1956", "statute": "The States Reorganisation Act, 1956"}}, {"text": "Centra.l Government", "label": "ORG", "start_char": 12699, "end_char": 12718, "source": "ner", "metadata": {"in_sentence": "this section and the proper consideration of any representation made by such person\",\n\nSection 117, which confers powers on the Central Government to give directions, is a.n follows :-\n\nPower of Centra.l Government to give direction."}}, {"text": "New Delhi", "label": "GPE", "start_char": 13303, "end_char": 13312, "source": "ner", "metadata": {"in_sentence": "In the affidavit of the Deputy Secretary to the Government of India, Ministry of Home Affairs, filed before the High Court, it has been stated that conferences were held in May 1956 between the representatives of the State Governments and the Government of India ln New Delhi and it was unanimously agreed that in determining the equation of posts, the following factors should be borne in mind:-\n\n( 1 ) the nature and duties of a post;\n\n(2) the responsibilities and J, owers exercised by the officer holdiag a post; the extent oi."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 14292, "end_char": 14301, "source": "ner", "metadata": {"in_sentence": "Those principles, it is further stated, were settled at a conference convened by the Government of India in May 1956, which was attended, among others, by the representatives of the former States of Bombay, Madhya Pradesh, Hyderabad, Saurashtra and Kutch."}}, {"text": "Saurashtra", "label": "GPE", "start_char": 14303, "end_char": 14313, "source": "ner", "metadata": {"in_sentence": "Those principles, it is further stated, were settled at a conference convened by the Government of India in May 1956, which was attended, among others, by the representatives of the former States of Bombay, Madhya Pradesh, Hyderabad, Saurashtra and Kutch."}}, {"text": "Kutch", "label": "GPE", "start_char": 14318, "end_char": 14323, "source": "ner", "metadata": {"in_sentence": "Those principles, it is further stated, were settled at a conference convened by the Government of India in May 1956, which was attended, among others, by the representatives of the former States of Bombay, Madhya Pradesh, Hyderabad, Saurashtra and Kutch."}}, {"text": "section 115", "label": "PROVISION", "start_char": 14903, "end_char": 14914, "source": "regex", "metadata": {"statute": null}}, {"text": "Union Public Service Commission", "label": "ORG", "start_char": 15182, "end_char": 15213, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India."}}, {"text": "P. N. Sapru", "label": "JUDGE", "start_char": 15236, "end_char": 15247, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India."}}, {"text": "Rajya Sabha", "label": "ORG", "start_char": 15257, "end_char": 15268, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 15296, "end_char": 15316, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India."}}, {"text": "K. Y. Bhandarkar", "label": "OTHER_PERSON", "start_char": 15326, "end_char": 15342, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 16123, "end_char": 16138, "source": "ner", "metadata": {"in_sentence": "It.is further stated in the affidavit that this decision was conveyed to the State of Bombay tly the Ministry of Home Affairs, Government of India, in its letter dated April 23."}}, {"text": "Ministry of Home Affairs, Government of India", "label": "ORG", "start_char": 16147, "end_char": 16192, "source": "ner", "metadata": {"in_sentence": "It.is further stated in the affidavit that this decision was conveyed to the State of Bombay tly the Ministry of Home Affairs, Government of India, in its letter dated April 23."}}, {"text": "October 10, 1963", "label": "DATE", "start_char": 16615, "end_char": 16631, "source": "ner", "metadata": {"in_sentence": "On the as1s of this equauon, the State Government also published a semonty list on October 10, 1963, and called for objections."}}, {"text": "January 9, 1964", "label": "DATE", "start_char": 16691, "end_char": 16706, "source": "ner", "metadata": {"in_sentence": "The only representation dated January 9, 1964, received from the first respondent, who pressed his claim to be put in Grade II."}}, {"text": "Madhya Pradesh officers is assured by the Act", "label": "STATUTE", "start_char": 18206, "end_char": 18251, "source": "regex", "metadata": {}}, {"text": "Maren 19, 1968", "label": "DATE", "start_char": 18590, "end_char": 18604, "source": "ner", "metadata": {"in_sentence": "It is seen from the judgment of the High Court that on Maren 19, 1968, the proceedings were adjourn_ed to enable the Central Government to consider the representations of the Bombay officers."}}, {"text": "March 19, 1968", "label": "DATE", "start_char": 18761, "end_char": 18775, "source": "ner", "metadata": {"in_sentence": "The order of the High Court dated March 19, 1968, stii:tes that the counsel for the Union Government made a representat10n that it was willing to review the equation of posts of Sales i:ax Officers from the erstwhile State of Madhya Pradesh after heann)!"}}, {"text": "S. J. Deshpande", "label": "LAWYER", "start_char": 21034, "end_char": 21049, "source": "ner", "metadata": {"in_sentence": "Mr. S. J. Deshpande, learned counsel for the appellants in Civil Appeal No.", "canonical_name": "S. I. Des/1pande"}}, {"text": "B. D.\n\nSharma", "label": "LAWYER", "start_char": 21127, "end_char": 21140, "source": "ner", "metadata": {"in_sentence": "2304 of 1969 and Mr. B. D.\n\nSharma, learned counsel, for the State of Bombay in both these matters have adopted the arguments of the Additional Solicitor General.", "canonical_name": "B. D.\n\nSharma"}}, {"text": "State of Bombay", "label": "GPE", "start_char": 21167, "end_char": 21182, "source": "ner", "metadata": {"in_sentence": "2304 of 1969 and Mr. B. D.\n\nSharma, learned counsel, for the State of Bombay in both these matters have adopted the arguments of the Additional Solicitor General."}}, {"text": "K. K. Singhvi", "label": "LAWYER", "start_char": 21274, "end_char": 21287, "source": "ner", "metadata": {"in_sentence": "Mr. K. K. Singhvi learned counsel for the Bombay officers, has pointed out that the orders of the Central Government have been passed in violation of the principles oi.", "canonical_name": "K. K. Slnghvi"}}, {"text": "section 115", "label": "PROVISION", "start_char": 22549, "end_char": 22560, "source": "regex", "metadata": {"statute": null}}, {"text": "So long as the Central Government has acted properly according to the provisions of the Act", "label": "STATUTE", "start_char": 23235, "end_char": 23326, "source": "regex", "metadata": {}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 24877, "end_char": 24889, "source": "ner", "metadata": {"in_sentence": "By Madhya Pradesh officers being equated with Grade II officers of Bombay State, the High Court observes that-\n\n( a) Bombay officers acting in Grade lI have to revert to Grade III;\n\nU'i!JON v. G. R. PRABHAVALKAR (Vaidialingam, J.) 723\n\n(b) Madhya Pradesh Sales Tax Officers have got large jumps in salary; and\n\n( c) even the little chance of promotion is lost to the Bombay Officers till all the 13 officers from Madhya\n\nradesh retire or are exhausted."}}, {"text": "Madhya\n\nradesh", "label": "GPE", "start_char": 25077, "end_char": 25091, "source": "ner", "metadata": {"in_sentence": "By Madhya Pradesh officers being equated with Grade II officers of Bombay State, the High Court observes that-\n\n( a) Bombay officers acting in Grade lI have to revert to Grade III;\n\nU'i!JON v. G. R. PRABHAVALKAR (Vaidialingam, J.) 723\n\n(b) Madhya Pradesh Sales Tax Officers have got large jumps in salary; and\n\n( c) even the little chance of promotion is lost to the Bombay Officers till all the 13 officers from Madhya\n\nradesh retire or are exhausted."}}, {"text": "section 5", "label": "PROVISION", "start_char": 25995, "end_char": 26004, "source": "regex", "metadata": {"statute": null}}, {"text": "section 115", "label": "PROVISION", "start_char": 26008, "end_char": 26019, "source": "regex", "metadata": {"statute": null}}, {"text": "Singllvi", "label": "OTHER_PERSON", "start_char": 27136, "end_char": 27144, "source": "ner", "metadata": {"in_sentence": "One of the points that has been stressed by Mr.\n\nSingllvi is that the decision of the Central Government dated April 23, 1960, is opposed to the principles of natural iustice inasmuch as the Bombay Officers had no opportunity of making any representations berore the said order was passed.", "canonical_name": "Singllvi"}}, {"text": "Madhya Pradesh", "label": "PETITIONER", "start_char": 27542, "end_char": 27556, "source": "ner", "metadata": {"in_sentence": "The Madhya Pradesh Officers filed representations to the Cenfral Government against this equation."}}, {"text": "Cenfral Government", "label": "ORG", "start_char": 27595, "end_char": 27613, "source": "ner", "metadata": {"in_sentence": "The Madhya Pradesh Officers filed representations to the Cenfral Government against this equation."}}, {"text": "s1", "label": "PROVISION", "start_char": 28351, "end_char": 28353, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Governments", "label": "ORG", "start_char": 30427, "end_char": 30446, "source": "ner", "metadata": {"in_sentence": "The High Court brushed aside this order by a mere statement that the additional matter that was considered by the Central Government related tQI the hierarchy of revenue officers under the Land Revenue Code and that the said matter is outside those to be considered according to the minutes of the joint conference of the representatives of the State and the Central Governments."}}, {"text": "Cen!ral Government", "label": "ORG", "start_char": 31607, "end_char": 31625, "source": "ner", "metadata": {"in_sentence": "They also show that\n\nthe Cen!ral Government has given a proper consideration to the representations made blY the Bombay and Madhya Pradesh officers."}}, {"text": "section 2", "label": "PROVISION", "start_char": 32730, "end_char": 32739, "source": "regex", "metadata": {"statute": null}}, {"text": "section 168", "label": "PROVISION", "start_char": 32743, "end_char": 32754, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Estates Land Act, 1908", "label": "STATUTE", "start_char": 32762, "end_char": 32791, "source": "regex", "metadata": {}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 34988, "end_char": 34995, "source": "ner", "metadata": {"in_sentence": "The criticism of Mr. Singhvi, learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay officers before passing the order, need not detain us long.", "canonical_name": "Singllvi"}}, {"text": "Central G0vernment", "label": "ORG", "start_char": 35947, "end_char": 35965, "source": "ner", "metadata": {"in_sentence": "Admittedly, representations were made by the W'1t Petitioners an<l, as stated earlier by us, they have been dealt with by the Central G0vernment in its order dated Februarv 15."}}, {"text": "Februarv 15. 1969", "label": "DATE", "start_char": 35985, "end_char": 36002, "source": "ner", "metadata": {"in_sentence": "Admittedly, representations were made by the W'1t Petitioners an<l, as stated earlier by us, they have been dealt with by the Central G0vernment in its order dated Februarv 15."}}, {"text": "Section 115(5)(b)", "label": "PROVISION", "start_char": 36005, "end_char": 36022, "source": "regex", "metadata": {"statute": null}}, {"text": "Singh vi", "label": "OTHER_PERSON", "start_char": 36629, "end_char": 36637, "source": "ner", "metadata": {"in_sentence": "Mr. Singh vi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay.", "canonical_name": "Singllvi"}}, {"text": "March 19, 1971", "label": "DATE", "start_char": 36771, "end_char": 36785, "source": "ner", "metadata": {"in_sentence": "Mr. Singh vi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay."}}, {"text": "25 /26th February, 1969", "label": "DATE", "start_char": 37381, "end_char": 37404, "source": "ner", "metadata": {"in_sentence": "In the result the judgment and order dated 25 /26th February, 1969, of the High Court are set aside and Civil Appeals Nos."}}]}
{"document_id": "1973_3_728_741_EN", "year": 1973, "text": "STATE OF U. P.\n\nKAILASH NATH AGARWAL & ORS.\n\nMarch 16. 1973\n\n[A. ALAGIIUSWAMI, I. D. DUA AND C. A, V AIDIALINOAM, JI,]\n\nCr. P.C.-s. 331(1)-Whether a District Mqlstratt is competent to grant pardon under the section when a Firs~ Class Magistrate, .before whom the enquiry proceedings wert pending, had rejected such a request.\n\nRespondent entered into a conspiracy as a result of which they defrauded the railway administration during the year 1958-59, very large amounts. A charheet was filed against them under s. 120(B), 420, 467, 468 and 471 I.P.C.\n\nThe enquiry proceedings were started in the court of the 1st Class Magistrate, Kanpur.\n\nThe 2nd and 3rd respondents gave confessional statements and both of them made applicatiom& under s. 337 of Cr.P.C .. praying for grant of pardon. The Magistrate passed an order declining to grant pardon and rejected the applications. However, on behalf of the State, an application was lied before the District Ma, istrate, Kanpur, to grant pardon to reapondcnt 2 and 3 on c:ondition of their making a full disclosure of the whole caae. In the application, reference was made to the 'fact that a requeat made by tbele two acctJied for arant of pll'don was rejected by the Magistrate enquiring into the oft'ence.\n\nThe applica tion was oppoeed by repclf3deata No, 1 IDd 4 te 6 on the JfOUDd that the District MQistrate had no power to grant pardon when the enqulrina\n\nMagistrate liad declined a limilar requat. The Diatrict Magiatrate r&o jected this contention and lfl!lted pardon to the 2nd: rapondent on con dition of hiJ making a full dilcloeure of the whole case.\n\nThe first responlleqt filed a criminal revi&ioo before the Diatrlet Judge K~J, npur, challenging this order. Ultimately it was heard bv a Civil and Sessions Judge, Kanpur.· It wu held that the District Magistrate was not competent to grant pardon to respondent No. 2. The Civil and Sessions Judge 'further held that the order of the Diatrict Magistrate was wholly without jurisdiction and therefore, referred the. matter to the Hiah\n\nCourt with a recommendation that the order of the District Magistrate granting pardon to the second resl.'ondent should be quashed. The High Court held that the District MagiStrate d no power to grant pardon after it had been once refused by the 1st Class Magistrate enquiring into the matter and that the order of the Diatrict Magistrate was revisable by the Civil and Sessions Judge and quashed the order of the District Magistrate, Kanpur. The question was whether the District Magistrate is competent under s. 337(1) of the Cr.P.C. tc, grant pardon to an accused when a 1st Class Magistrate before whom the enquiry proceedings had been pending had rejected such a request.\n\nPartly allowing the appeal,\n\nHELD: (i) A perusal of s. 337(1) shows that the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the First Class may tender pardon in the clrc; umstances mentioned therein at any stage of the investigation or enquiry into or trial of the offence.\n\nBut under the proviso if the offence is under enquiry or trial, only the District Magistrate and only the Magistrate making the enquiry or holding the trial, can exercise the power. Similarly where the offence\n\n·*· A\n\n·~ G\n\nU.P. STATB v. K. N. AGARWAL (Vaidialingam, /.) 729\n\nis under investigation, it is only a Magistrate having jurisdiction in the place where the offence might be enquired into or tried that can exercise the power. Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been obtained.\n\nWhile there is a restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or enquiry into or trial of the offence. Emphasis is to be laid on the fact that the proviso to s. 337 which contemplates concurrent jurisdiction in the District Magis trate and in the Magistrate making an enquiry or holding the trial to tender pardons. The mere fact that a Magistrate of the first class enquiring into an offence has declined to grant pardon, as in the present case, does not take away the power or jurisdiction of the District Magistrate to entert.ain a fl.!fther apP.licati?n for t of pardo!l However, judicial propnety reqwres that 1f a higher authonty had dechned to tender pardon, a lower authority should not grant pardon except on fresh facts.\n\nThe above prinojple will apply even to proceedings under s. 338. [735B]\n\n(ii) The question whether the State should have filed a revision against the order of refusal of the Magistrate, does not require an answer, because of the fact that the District Magistrate has got concurrent powers and that pe can be approached under s. 337 even after the Magistrate enquiring into the offence had declined to grant pardon.\n\n[739D]\n\n(iii) An order granting pardon is open to revision but whether the court whose powers are invoked for that purpose will interfere or not is a matter depending upon the circumstances in each case. Therefore, the first respondent's revision before the Sessions Court, was competent and a revision petition lies before this Court,\n\n[740A]\n\n(iv) A pardon granted bona fide is fully protected by the provisions df s. 529 of the Cr.P.C., but in view of the District Magistrate's power to grant pardon, it is not necessary that the State should rely on s. 529 Cleuse (g) of the Cr. P. C. [741A]\n\nKanta Prasad v. Delhi Administration [1958] S.C.R. 1218, A.!., Peiris\n\nv. State of Madras [1954] Cr.L.J. 1638, State of Andhra Pradesh v. Che~\n\nmalapati Ganeswara & Anr. [1964] 3 S.C.R. 297 and M. M. Kochar v.\n\nThe State A.I.R. 1969, De_lhi 21, refed to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193 of 1969.\n\nAppeal by certificate from the judgment and order dated Sep4 tember 11, 1968 of the Allahabad High Court in Criminal Refer ence No. 284 of 1967.\n\n0. P. Rana, for lfhe appellant.\n\nB. P. Maheshwari and Saresh Sethi, for respondents Nos. 5 and 6.\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. The question that arises for consideration in this appeal by the State of U.P. on certificate is-\n\n\"whether a District Magistrate is competent under section 3 3 7 ( 1) of the Code of Criminal Procedure to\n\nSUPREME COURT REPORTS [1973] 3 s.c.B..\n\ngrant pardon to an accused person when a First Class A Magistrate, before whom the inquiry proceedings had been pending, had rejected such a request\".\n\nBefore we proceed to state the facts, it has to be mentioned that it has been brought to our noce that Sarwan Lal, the 4th respondent, died after the appeal was filed in this Court by the State. In consequence the appeal has abated against him. How4 ever, in the course of the judgment, we will have to refer to him also when we state the case of the prosecution.\n\nThe prosecution case against the accused was as follows :- The first respondent, Kailash N atli, along with Sarwan Lal, Moti Chandra and Smt. Shanti Devi, respondents 4 to 6 respectively, were the Directors of M/s M. K. Brothers (P) Ltd., Kanpur and were doing business in cotton in Kanpur.\n\nIn the course of their business, they used to purchase cotton from out stations and sell them to the textile mills at Kanpur. The second respondent, Kesardeo Budhia, was an employee of M/s M. K. Brothers (P) Ltd. and used to look after the work of taking delivery of cotton bales from the Kanpur railway station. The third respondent, Devi Prasad Agarwal, was a representative of J. K. Cotton Mills Kanpur.\n\nIn 1958 the financial position of M/s M. K. Brothers (P) Ltd. became very precarious and in consequence they com mitted considerable delay in clearing the consignments of cotton from the station premises and this resulted in their being liable for heavy arrears of demurrage and wharfage.\n\nAs the textile industry itself was facing a criis in 1958, the Government, with a view to give some assistance, granted several concessions. One such was that the consignees, who had their own railway sidings, were granted remission in respect of demur~ rage and wharfage payable to the railway authorities.\n\nThis enabled the consignees to take delivery of goods according to their convenience. In the said year, as M/s M. K. Brothers (P) Ltd. had received a large number of consignments of cotton bales, they evolved a scheme to avail themselves of the benefit granted to the textile industry by the Government.\n\nFor this purpose, they hatched a plan by which they misrepresented that the consignments of cotton bales received at Kanpur railway station, though in their name. actually belonged to M/s J. K. Cotton Mills Kanpur. The second respondent, an employee of M/ s M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1\n\nand 4 to 6, the Directors of M/s M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on H behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills. In\n\nU.P. sTATE V. K. N. AGARWAL (Vaidialingam, J.) 731\n\nurtherance of the objct of this. conspiracy, they also made false !ndorsements on the atlway recetpts for transfer of the bales. As a result _of the conspuacy, they defrauded the railway administration dunng the year 1958-5? of very large amounts Acordingl a char\"e-sheet was filed agamst respondents 1 to L. un~.ocr section; lZO(B), 420,467,468 and 471 of the Indian Pena, l Code.\n\nB The inquiry proceedings were started in the Court of the First Class Magistrate, Kanpur, as the case was triable as a Sessions case. On June 30, 196_2, the second respondent, Kesardeo Budhia, made <1: confess10nal statement. Similarly, Devi Prasad Agarwal, the tlurd respondent, gave a confessional statement on July 12, 1963. Both responde_nts 2 and 3 made applications on c December 17, 1964, under section 33 7 of the Criminal Procedure\n\nCourt before !he Firt C_lass Magistrate praying for grant of pardon. The srud applications were supported by the prosecution, but the other accused opposed the grant of pardon. The Magistrate by' his order dated September 27, 1965, declined to grant pardon and rejected the applications of both the accused. How- .D ever, on behalf of the State its Special counsel filed an application on April 15, 1966, before the District Magistrate, Kanpur, to grant pardon to respondents 2 and 3 on condition of their making a full and true disclosure of the whole of the circumstances. In this application, it was stated that the First Class Magistrate, Kanpur, was inquiring into the matter and was recording evidence E of witnesses for the purpose of bdng satisfied that pri~ facie\n\ncase had been established.\n\nIt was stressed that the dtrect evtdence of conspiracy would be furnished by respondents 2 and 3 if they are granted pardon and examined as witnesses. Reference 'W-as also made to the effect that a request made by thos~ .acced for £rant of pardon was rejected by the Magistrate enqumng mto the p offences.\n\nThis application was opposed by respondents 1 and 4 to 6 on the ground that the District Magistrate has no po:ver to t pardon when once the enquiring Magistrate h~ decline~ a Mrrular request.\n\nThe District Magistrate rejected thiS onenllOn and_ held that he had jurisdiction to conside~ _the appcatton ~~ mcnts, notwithstanding the fact that the cnqmnng Magtstrate h.\n\nC declined to grant pardon. On merits, the Magistrate held tha~ m\n\nthe circumstances it is enouoh if the second respondhnt, dKesdaratecdo Budh' 0 rd' \"IY by ts or er J la alonco is tendered pardon. Acco\n\n1~.:. :,37 to this accused . une I, 1966, he granted pardon under sectton disclosure of\n\n~one on condition of his makin_g ful knd )~~~rrelating to the c Whole of the circumstances wuhm hiS now = Offences lf . Th . . . . 1 Revision No. 85 of 1966 b r e first respondent filed Cnnunah 11 'ng the order of the or~ the Distnct Judge, Kanpu~, c c~~lt with by the Civil stnct Magistrate which was ulttmate Y\n\n\"Z ...\n\nSUPREME COURT REPORTS\n\n\nand Sessions Judge, Kanpur.\n\nThe jurisdiction of the District Magistrate to grant pardon, after the First Class Magistrate having refused, was again the subject of debate before the Sessions court.\n\nThe State and the second respondent contended before the Civil & Sessions Judge that the Revision was not competent.\n\nThe Civil and Sessions Judge rejected the contention of the State that no revision lies.\n\nIt upheld the plea of the first respondent that the District Magistrate was not competent to grant pardon to Kesardeo Budhia.\n\nThe view of the Civil and Sessions Judge is that if the State was dis-satisfied with the order dated September 27, 1965, passed by the First Class Magistrate, that order should have been challenged in revision before the District Judge or the District Magistrate.\n\nNot having done so, it cannot invoke the jurisdiction of the District Magistrate under section 337.\n\nThe Civil and Sessions Judge has further held that the order of the District Magistrate was wholly without jurisdiction and in consequence by his order dated June 16, 1967, referred the matter to the High Court with a recommendation that the order dated_ June 1, 1966, of the District Magistrate granting pardon to the second respon~ dent should be quashed.\n\nThis reference of the Civil and Sessions Judge before the High Court was Criminal Reference No. 284 of 1967. The High Court by its judgment and order dated September 11, 1968, has held that the District Magistrate has no power to grant pardon after it has been once refused by the First Class Magistrate enquiring 1 into the matter and that the order of the District Magistrate was revisable by the Civil and Ses'Sions Judge.\n\nIn this view, the High Court accepted the Reference and quashed the order dated June 1, 1966, of the District Magistrate, Kanpur.\n\nMr. Rana, learned counsel for the State, has raised three eontentions :\n\n(1) The power under section 337 of the Criminal Procedure Code exercisable by the various Magistrates mentioned therein is concurrent and the District Magistrate in the circumstances of this case was competent to grant pardon to respon dent No.2. ( 2) The Revision filed by the first respondent before the Civil and Sessions Judge against the order of the District Magistrate was incompetent. ( 3) In any event, the grant of pardon by the District Magistrate is only an irregularity, which is cured by clause (g) of section 529 of the Criminal Procedure Code; and as such the High Court was in error in interfering with the said order.\n\n,!)\n\nU, P,· STATE v. K, N. AGARWAL (Vaidialingan,., J.) 733\n\nMr. B .. P. Maheshwari, learned counsel appearing for respondents 5 and 6, has supported the order of the High Court. According to him, the scheme of section 3 3 7 clearly shows that the question of granting or refusing pardon has to be dealt with in the circumstance and by the officers referred to therein.\n\nWhen once that jurisdiction has been invoked before one officer, it cannot be reopened before another officer.\n\nThe counsel contended that it may be that if fresh facts have come to light later and are placed before the court, it may have jurisdiction to reconsider an order passed at the early stage of proceedings.\n\nIn this case, the State had not placed any material before the District Magistrate that was not already before the First Class Magistrate.\n\nThat being so, the District Magistrate had no jurisdiction to consider on the same facts a second request made for the same purpose.\n\nMr.\n\nMaheshwan further pointed out that if the State was aggrieved by the order of the Magistrate dated September 27, 1965,. it should have challenged the same in revision before the Sessions Judge.\n\nIn view of these circumstances, he pointed out that the High Court had rightly held that the order of the District Magistrate was without jurisdiction.\n\nIt is now necessary to refer to the material provisions of the Criminal Procedure Code. Though section 337 is the relevant section, nevertheless, it is necessary to refer to section 338 also.\n\nThese two sections occurring in chapter XXIV dealing with \"general pt; avisions as to i1,1quiries and trials\" are as follows :\n\nTender of pardon to accomplice.\n\n\"3 3 7 (1 ) . In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years, or any offence under any of the following sections of the Indian Penal Code, namely, sections 161, 165, 165A, 216A, 369, 401, 435 and 477A, the District Magistrate, a Presidency Magistrate, a Subdivisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, i'! the commission thereof: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class Olther than the District Magistrate shall exercise the power hereby conferred\n\n\ness he is the Magistrate making the inquiry or hold mg the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inqUired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.\"\n\n( lA) \"Every Magistrate who tenders a pardon under sub-section ( 1 ) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:.\n\nProvided that the accused shall pay for the same C unless the Magistrate for some special reason thinks fit to furnish it free of cost.\"\n\nPower to direct tender of pardon.\n\n\"338. At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person suppOsed to have been directly or indirectly concerned in, or privy to, ll:fiY such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.\"\n\nSection 435 ( 1) gives power to the High Court, the Sessions Judge and to the other authorities mentioned therein to call for records of inferior courts for the purposes mentioned therein.\n\nSub-section 4 provides that if an application under section 435 p has been made either to the Sessions Judge or the District Magistrate, no further application shall be. entertained by the other of them.\n\nSection 529 occurring in Chapter XLV under the heading \"Of irregular proceedings\" deals with irregularities which do not vitiate proceedings.\n\nThe material part of this section relevant for the present purpose is as follows :-\n\nIrregularities which do not vitiate proceedings.\n\n\"529. If any Magistrate not empowered by law to do any of the following things, namely :-\n\n* * * * •\n\n(g) to tender a pardon under section 337 or section H 338:\n\n* • \"' •\n\nU.P. STATE v. K. N. AGARWAL (Vaidialingam, /.) 735\n\nerroneously in good faith does that thing, his proceedings\n\nshall not be set aside merely on the ground of his not being so empoWered.\"\n\nA perusal of section 337 ( 1) shows that the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the First Class may tender pardon in the circumstances mentioned therein at any stage of the investigation or inquiry into or trial of the offence. But under the proviso, if the offence is under inquiry or trial, the District Magistrate and only the Magistrate making the inquiry or holding the trial can exercise the power. Similarly, where the offence is under investigation, it is only a Magistrate having jurisdiction in a place where the offence might be enquired into or tried. can exercise the power.\n\nEven such a Magistrate can exercise that power only if the sanction of the District Magistrate has been. obtained. While there is rr restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into or trial ofthe offence. Sub-section 1 (A) makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing and also of furnishing the accused 'with a copy of his order. No doubt, under the proviso, the accused has to pay for the same unless the Magistrate thinks fit, for some special reasons, to furnish the order free of cost.\n\nSection 338 deals with the grant of pardon after the stage of commitment has been reached but before judgment is passed. It gives full power to the court, to which commitment is made, to tender pardon or order the Committing Magistrate or the District Magistrate to tender pardon on the same conditions. The question arose in Kanta Prashad v. Delhi Administration(~), whether the District Magistrate had power to tender a pardon under section 337 in lases where the offence was triable exclusively by the court of the Special Judge. Having regard to the provisions of the Criminal Law (Amendment) Act, 1952 and the scheme of section 3 3 7 of the Criminal Procedure Code, this Court held that as e court of the Special J ridge was in law a court of session, the District Magistrate had power to grant pardon.\n\nThe contention that under such circumstances the proper authority to grant pardon was the Special Judge was rejected, as the position of the Special Judge was similar to that of a Judge of a court of Session.\n\nIt was observed :\n\n\"The proviso to tion 33 7 of the Code of Criminal Procedure contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an\n\n(I) [t 9SS] S.C.R.. 1218.\n\n73la\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\njnquiry or holding the trail to tender a pardon. According to the provisions of s. 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon. It would seem, therefore, that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs. Under s. 8(2) of the Criminal Law (Amendment) Act, 1952, the Special Judge has also been granted power to tender pardon.\n\nThe conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under s. 337 of the Code\".\n\nIt will be noted from this decision that emphasis is laid on the fact that the proviso to section 337 contemplates concurrent jurisdiction in the District MagiBtrate and in the Magistrate making an inquiry or holding the trial to tender pardon. It is also emphasised that the conferment of the power to grant pardon on the Special Judge does not deprive the District Magistrate of his power to grant pardon under section 337. In A. /. Peiris v.\n\nState of Madras(!), the question arose before this Court whether after commitment had already been made, the District Magistrate has power to grant pardon. From the facts mentioned in the judgment it is seen that on July 24, 1951, the police submitted the charge-sheet against the accused and one Albert. Albert, however, could not be traced and the other accused were committed to the Sessions on August 4, 1952. Albert was arrested on July 28, 1952, and his confession was recorded by the Magistrate after complying with all the necessary formalities required by law. On August 28, 1952, he was granted pardon by the District Magistrate, South Kanara. The evidence of Albert was relied on for convicting the other accused.\n\nThis Court rejected the contention that after commitmell't the only court having power to tender pardon was the court of Sessions Judge an.d not the District Magistrate.\n\nIt was observed :- \"By section 338, Criminal Procedure Code, power is no doubt given after commitment is made to tender pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with any offence or order the Committing Magistrate or the District Magistrate to tender the pardon. The section vests the court to which commitment is made, with power to tender pardon or order the Committing Magistrate or the District Magistrate to tender pardon during the trial of the case but it does not take away the power conler-\n\n(l) 1954 Cr. L.J. 1638.\n\nU.P. STATE v, K, N. AGARWAL (Vaidialingam, /.) 131\n\nred under the proviso to section 3 3 7 (l) of the Criminal Procedure Code .... \"\n\nThe proviso contains an additional provision which empowers the Distriot Magistrate to tender pardon where the offences are under inquiry or trial. The pre*\n\nsent case is covered by the proviso to section 337 and not by section 338 of the Criminal Procedure Code. We hold, therefore, that the tender of pardon 1zy the District Magistrate on August 28, 1952, was valid\".\n\nIn State of Andhra Pradesh v. Cheemalapati Ganeswara Rao- & Anr. C> one of the questions that came up for consideration was. whether a pardon granted under section 337(1) by the Additional District Magistrate in a case, where an inquiry was pending before the District Magistrate, was illegal. It was contended that under section 337 only the powers of a District Magistrate, namely, the powers under entry 7(a) in Part V of Schedule ill of the Code of Criminal Procedure, as distinguished from the power under theproviso to the said section, can be conferred upon an Additional District Magistrate.\n\nThis Court, having regard to the order of Madras Government No. 3106 dated September 9, 1949, and entry 7(a) in Part V of Schedule III, rejected this contention. It is the view of this Court that. :\n\n\"The power conferred by sub-setion (1) of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But entry 7(a) in Part V of Sch. ffi.when it refers to the power of a District Magistrate under s. 337 (L) does not exclude the power under the proviso\".\n\nThe decision referred to above clearly establish that the powers conferred on the District Magistrate and the other Magistrates under section 3 3 7 are concurrent and that a District Magistrate, even after commitment, has power to tender pardon. The proviso to section 337 ( 1) makes it clear that the District Magistrate, in addition to the Magistrates referred to fuerein, has power to tender pardon during inquiry into or trial of the offence.\n\nThough the above decisions had no occasion to consider whether the District Magistrate has power to tender pardon, when the Magistrate en~ quiring into the offence has once refused, we are not able to find any such restriction placed upon the power of the District Magis~ H trate by the wording of the section itself. As the power confet:re<J\n\nby sub-section 1 of section 337 on the different classes of Magis-\n\n(1) [1964J 3 S.C.R. 297.\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\ntrate is concurent and is oi. the sam~ character, it follows that the\n\nwer to t7nder pardon can be exercised by everyone of the autho4 nue:s mntloned therein subject to the limitation specified in the\n\nsectl?~ Its7lf. The mere fact that a Magistrate of the First Class enqlllnng mto the offence has declined to grant pardon, as in the case '?ef?re us, oes not take away the power or jurisdiction of the Distnct Magistrate to entertain a further application for grant\n\nf pardon.\n\nThoug~ th~ District Magistrate has got power to consider a further apphcation, nevertheless, it is needless to state that he will have due regard to the views expressed . by the Magistrate for refusing to grant pardon. We must, however, state that judicial propriety requires that if a higher authority had declined to tender pardon, a lower authority should not grant pardon except on fresh facts which were not and could not have been before the higher authority when it declined to grant pardon. Even if pardon has been refused on one occasion, a further request may be made before the same Magistrate or the District Magistrate. But such a further request can be entertained and considered only if fresh or additional facts are placed biY the party concerned.\n\nThe above principles will apply even to proceedings under section 338. Even after commitment, a District Magistrate will have power to grant pardon. But if the court ()f Session had declined to grant pardon, the District Magistrate will not on the same facts ell'tertain a similar application for grant of pardon. It is necessary to bear in mind the principles stated above so that the authorities under sections 337 and 338 can exercise jurisdiction 'in harmony in order to further the interest of justice and avoid conflicting orders being passed.\n\nThe conlezmont of concurrent powers is also to be seen in section 498. Under sub-section 1, the IDgh Court or court of Session has got power to direct that any person be admitted to bail or to reduce the bail required by a police offict or a Magistrate.\n\nEven though the Court of Session may have refused a request in this behalf for grant of bail, the High Court can be approached for a similar relief. Under sub-seotion 2, again power has been given to the High Court or Court of Session to order the re-arrest Of a person admitted to bail under sub-section 1.\n\nG When the legislature intended that two authorities should not exercise jurisdiction on an identical matter, it has used appropriate language to that effect. For instance, under section 436(1), the Sessions Judge and the District Magistrate, in addition to the High Court and Sub-divisional Magistrate, have been empowered to can for and examine the records oi any proceedings before any inferior criminal court. Though it may appear from sub-section 1 that a District Magistrate can be moved even after the similar relief has been refused by the SessionS Judge or vice ver9tl, the\n\nU.P. STATE V. K. N, AGARWAL (Vaidia/ingam, /.) 739\n\n..A position is made clear by sub-section 4.\n\nThat sub*section pnr vides that if either the Sessions Judge or the District Magistrate has been moved, no further application shall be entertained by the other of them.\n\nThough under sub-section 1 both of them have concurrent power, nevertheless, s.ub-section 4 clearly places a restriction on their powers by stating that if one ot them had been B moved, the other cannot entertain an application for the same purpose.\n\nIn view of the decisions of this Court referred to above, it is not necessary for us to refer to the decisions of the High Court taking one view or the other. From what is stated above, it follows that the view of the High Court that when once the Magistrate C enquiring into the offence had refused to grant pardon, the District Magistrate had no jurisdiction to entertain an application ior the same purpose, is erroneous ..\n\nThe further question is whether the State should have filed a revision against the order of the Magistrate dated September 27, 1965, refusing to grant pardon instead of approaching the District D Magistrate for the same purpose. This raises the question whether an order reftising to grant pardon is revisable ? The High Court has taken the view that the said order is revisable and that the State, if it was aggrieved, sh9Uld have filed a revision before the Sess!ons Judge.\n\nWe have already referred to . the fact that the first respondent had filed a revision before the Sessions Court E against the order oi the District Magistrate June 1, 1966. This revision has been held 1tr the High Court to be a proper one. As we have held that the District Magistrate has got concurrent powers and that he can be approached under section 337 even after the Magistrate enquiring into the offence has declined to grant pardon, the question wher the State should have filed a revision F against the order of the Magistrate becomes really academic. On the view expressed by us, the State was justified in approaching the District Magistrate even after the Magistrate had refused to grant pardon .\n\n. However, the question regardin2 the revisability of an order granting pardon arises regarding the competency of the revision G filed by the first respondent before the Sessions Court challenl!ing the order of the District Magistrate dated June l, 1966. Section 435, which deals with the power to call for records of inferior courts, takes in the High Court, Sessions Judge, District Mastrate\n\nand any S'!lb-divisional Magistrate emoowered bv the State G()vemment in that behalf. The power is given to call for and examine the records of any proceedings before anv inferior criminal court H for the purpose of satisfying itself as to the correctness. 1egality or propriety of \"any finding, sentence or order recorded or nassed, and as to the regularity of any proceedings of such inferior Court\n\n\n'' In our opinion, an order granting pardon under section A. 337 or 338 is certainly an order rorded or passed and the revisional court has got jurisdiction to consider the correctness, legality or propriety ot such an order. At any r; lte, tender of a pardon is certainly a proceeding of a criminal court. The revising authority can call for the records to satisfy itself as to the regularity of any proceedis of an inferior criminal court.\n\nIt B should also be noted that sub-section 1A of section 337 imposes an obgation on the Magistrate tendering pardon to record his reasons for so doing. Whether a revisional authority will interfere with the order of an inferior criminal court tendering pardon, is\n\naltogether a different matter. That does not mean that a revisional court has no jurisdiction to entertain a revision against an order c granting pardon.\n\nThe decision that has been brought to our notice holding that section 435 cannot be invoked in the case or an order made either under section 337 or under section 338 is that of a learned single\n\nJudge of the Delhi High Court in M. M. Kochar v. The State( 1 ) .\n\nThe learned Judge bas held that the tender of pardon and its I} acceptance by the person concerned is a matter entirely between the court and the person to whom pardon is tendered and that a co-accused bas no power to challenge the same, as it is a purely executive or administrative action and nO't a judicial decision.\n\nTendering of pardon, it is further stated, is only an exercise of one of the many prerogatives of the sovereign. After having held that E the High Court's jurisdiction cannot be invoked under section 435, the learned Judge on merits held that the tender of pardon was legaL\n\nThis decision ot the Delhi High Court was challenged before this Court in Criminal Appeal No. 109 of 1968. In its judgment dated September 16, 1968, this Court on merits agreed with the High Court that the tender of pardon was proper. The question F of the nature of the power exercised in granting pardon and the other question whether an order granting pardon was revisable by a superior court, were, however, left open. We have indicated earlier that an order granting pardon is open to revision, but whether the court whose l10wers are invoked for that purpose will interfere or not, is a matter depending upon the circumstances of G each case. Accordingly we hold that the first respondent's revision before the Sessions Court was competent and reject the second contention of Mr. Rana.\n\nComing to the third conention of Mr. Rana, it has been held by this Court in State of Andhra Pradesh v.\n\nCheemalapati Ganeshwara Rao & Anr. (2 ) that \"a pardon granted bona fide is H\n\n(1) A.I.R. 1969 Delhi 21.\n\n\nU.P. STATE v. K. N. AGARWAL (Vaidialingllm, /.) 741\n\nA fully protected by the provisions of section 529 of the Criminal Procedure Code\". We have already extracted the relevant part of section 529. On the view expressed by us that the order of the District Magistrate granting pardon is legal and valid, it is not necessary for the State to rely on section 529, clause (g) in this case.\n\nB In the result the order and judgment of the High Court dated September 11, 1968, in so far as it holds that the grant of pardon by the District Magistrate was illegal are set aside and to that extent the appeal is allowed in part. The order dated June 1,\n\n1966 ol the District Magistrate, Kanpur, will stand restored.\n\nS.C.\n\nAppeal allowed in part.\n\n1S-L761Sup.C .I ./73", "total_entities": 128, "entities": [{"text": "STATE OF U. P", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "STATE OF U. P", "offset_not_found": false}}, {"text": "KAILASH NATH AGARWAL & ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "KAILASH NATH AGARWAL & ORS", "offset_not_found": false}}, {"text": "March 16. 1973", "label": "DATE", "start_char": 45, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "March 16."}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 79, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA", "offset_not_found": false}}, {"text": "s. 331(1)", "label": "PROVISION", "start_char": 129, "end_char": 138, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 120(B), 420, 467, 468 and 471", "label": "PROVISION", "start_char": 512, "end_char": 544, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 545, "end_char": 550, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1st Class Magistrate, Kanpur", "label": "COURT", "start_char": 610, "end_char": 638, "source": "ner", "metadata": {"in_sentence": "A charheet was filed against them under s. 120(B), 420, 467, 468 and 471 I.P.C.\n\nThe enquiry proceedings were started in the court of the 1st Class Magistrate, Kanpur."}}, {"text": "s. 337", "label": "PROVISION", "start_char": 739, "end_char": 745, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 749, "end_char": 755, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Diatrlet Judge K~J, npur", "label": "COURT", "start_char": 1669, "end_char": 1693, "source": "ner", "metadata": {"in_sentence": "The first responlleqt filed a criminal revi&ioo before the Diatrlet Judge K~J, npur, challenging this order."}}, {"text": "Civil and Sessions Judge, Kanpur", "label": "COURT", "start_char": 1748, "end_char": 1780, "source": "ner", "metadata": {"in_sentence": "Ultimately it was heard bv a Civil and Sessions Judge, Kanpur.·"}}, {"text": "Kanpur", "label": "GPE", "start_char": 2479, "end_char": 2485, "source": "ner", "metadata": {"in_sentence": "The High Court held that the District MagiStrate d no power to grant pardon after it had been once refused by the 1st Class Magistrate enquiring into the matter and that the order of the Diatrict Magistrate was revisable by the Civil and Sessions Judge and quashed the order of the District Magistrate, Kanpur."}}, {"text": "s. 337(1)", "label": "PROVISION", "start_char": 2555, "end_char": 2564, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 2572, "end_char": 2578, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 337(1)", "label": "PROVISION", "start_char": 2774, "end_char": 2783, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 337", "label": "PROVISION", "start_char": 3901, "end_char": 3907, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 338", "label": "PROVISION", "start_char": 4532, "end_char": 4538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 337", "label": "PROVISION", "start_char": 4800, "end_char": 4806, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 529", "label": "PROVISION", "start_char": 5308, "end_char": 5314, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 5322, "end_char": 5328, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 529", "label": "PROVISION", "start_char": 5445, "end_char": 5451, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "[1964] 3 S.C.R. 297", "label": "CASE_CITATION", "start_char": 5658, "end_char": 5677, "source": "regex", "metadata": {}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 5961, "end_char": 5968, "source": "ner", "metadata": {"in_sentence": "P. Rana, for lfhe appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 5991, "end_char": 6007, "source": "ner", "metadata": {"in_sentence": "B. P. Maheshwari and Saresh Sethi, for respondents Nos.", "canonical_name": "B .. P. Maheshwari"}}, {"text": "Saresh Sethi", "label": "LAWYER", "start_char": 6012, "end_char": 6024, "source": "ner", "metadata": {"in_sentence": "B. P. Maheshwari and Saresh Sethi, for respondents Nos."}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 6101, "end_char": 6113, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. The question that arises for consideration in this appeal by the State of U.P. on certificate is-\n\n\"whether a District Magistrate is competent under section 3 3 7 ( 1) of the Code of Criminal Procedure to\n\nSUPREME COURT REPORTS [1973] 3 s.c.", "canonical_name": "VAIDIALINGAM"}}, {"text": "State of U.P.", "label": "ORG", "start_char": 6183, "end_char": 6196, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. The question that arises for consideration in this appeal by the State of U.P. on certificate is-\n\n\"whether a District Magistrate is competent under section 3 3 7 ( 1) of the Code of Criminal Procedure to\n\nSUPREME COURT REPORTS [1973] 3 s.c."}}, {"text": "section 3", "label": "PROVISION", "start_char": 6267, "end_char": 6276, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 6293, "end_char": 6319, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sarwan Lal", "label": "RESPONDENT", "start_char": 6619, "end_char": 6629, "source": "ner", "metadata": {"in_sentence": "Before we proceed to state the facts, it has to be mentioned that it has been brought to our noce that Sarwan Lal, the 4th respondent, died after the appeal was filed in this Court by the State."}}, {"text": "Kailash N atli", "label": "RESPONDENT", "start_char": 6962, "end_char": 6976, "source": "ner", "metadata": {"in_sentence": "The prosecution case against the accused was as follows :- The first respondent, Kailash N atli, along with Sarwan Lal, Moti Chandra and Smt."}}, {"text": "Moti Chandra", "label": "RESPONDENT", "start_char": 7001, "end_char": 7013, "source": "ner", "metadata": {"in_sentence": "The prosecution case against the accused was as follows :- The first respondent, Kailash N atli, along with Sarwan Lal, Moti Chandra and Smt."}}, {"text": "Shanti Devi", "label": "RESPONDENT", "start_char": 7023, "end_char": 7034, "source": "ner", "metadata": {"in_sentence": "Shanti Devi, respondents 4 to 6 respectively, were the Directors of M/s M. K. Brothers (P) Ltd., Kanpur and were doing business in cotton in Kanpur."}}, {"text": "M. K. Brothers (P) Ltd.", "label": "ORG", "start_char": 7095, "end_char": 7118, "source": "ner", "metadata": {"in_sentence": "Shanti Devi, respondents 4 to 6 respectively, were the Directors of M/s M. K. Brothers (P) Ltd., Kanpur and were doing business in cotton in Kanpur."}}, {"text": "Kesardeo Budhia", "label": "RESPONDENT", "start_char": 7322, "end_char": 7337, "source": "ner", "metadata": {"in_sentence": "The second respondent, Kesardeo Budhia, was an employee of M/s M. K. Brothers (P) Ltd. and used to look after the work of taking delivery of cotton bales from the Kanpur railway station.", "canonical_name": "Kesardeo Budhia"}}, {"text": "Devi Prasad Agarwal", "label": "RESPONDENT", "start_char": 7508, "end_char": 7527, "source": "ner", "metadata": {"in_sentence": "The third respondent, Devi Prasad Agarwal, was a representative of J. K. Cotton Mills Kanpur."}}, {"text": "J. K. Cotton Mills Kanpur", "label": "ORG", "start_char": 7553, "end_char": 7578, "source": "ner", "metadata": {"in_sentence": "The third respondent, Devi Prasad Agarwal, was a representative of J. K. Cotton Mills Kanpur."}}, {"text": "K. Brothers", "label": "ORG", "start_char": 8746, "end_char": 8757, "source": "ner", "metadata": {"in_sentence": "The second respondent, an employee of M/ s M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1\n\nand 4 to 6, the Directors of M/s M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on H behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills."}}, {"text": "J. K. Cotton Mills", "label": "ORG", "start_char": 8796, "end_char": 8814, "source": "ner", "metadata": {"in_sentence": "The second respondent, an employee of M/ s M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1\n\nand 4 to 6, the Directors of M/s M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on H behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills."}}, {"text": "M. K. Brothers", "label": "ORG", "start_char": 8867, "end_char": 8881, "source": "ner", "metadata": {"in_sentence": "The second respondent, an employee of M/ s M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1\n\nand 4 to 6, the Directors of M/s M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on H behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills."}}, {"text": "V. K. N. AGARWAL", "label": "JUDGE", "start_char": 9167, "end_char": 9183, "source": "ner", "metadata": {"in_sentence": "In\n\nU.P. sTATE V. K. N. AGARWAL (Vaidialingam, J.) 731\n\nurtherance of the objct of this."}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 9185, "end_char": 9197, "source": "ner", "metadata": {"in_sentence": "In\n\nU.P. sTATE V. K. N. AGARWAL (Vaidialingam, J.) 731\n\nurtherance of the objct of this.", "canonical_name": "VAIDIALINGAM"}}, {"text": "July 12, 1963", "label": "DATE", "start_char": 9905, "end_char": 9918, "source": "ner", "metadata": {"in_sentence": "Similarly, Devi Prasad Agarwal, the tlurd respondent, gave a confessional statement on July 12, 1963."}}, {"text": "section 33", "label": "PROVISION", "start_char": 9994, "end_char": 10004, "source": "regex", "metadata": {"statute": null}}, {"text": "September 27, 1965", "label": "DATE", "start_char": 10246, "end_char": 10264, "source": "ner", "metadata": {"in_sentence": "The Magistrate by' his order dated September 27, 1965, declined to grant pardon and rejected the applications of both the accused."}}, {"text": "April 15, 1966", "label": "DATE", "start_char": 10423, "end_char": 10437, "source": "ner", "metadata": {"in_sentence": "How- .D ever, on behalf of the State its Special counsel filed an application on April 15, 1966, before the District Magistrate, Kanpur, to grant pardon to respondents 2 and 3 on condition of their making a full and true disclosure of the whole of the circumstances."}}, {"text": "District Magistrate, Kanpur", "label": "COURT", "start_char": 10450, "end_char": 10477, "source": "ner", "metadata": {"in_sentence": "How- .D ever, on behalf of the State its Special counsel filed an application on April 15, 1966, before the District Magistrate, Kanpur, to grant pardon to respondents 2 and 3 on condition of their making a full and true disclosure of the whole of the circumstances."}}, {"text": "Kesardeo Budhia", "label": "RESPONDENT", "start_char": 12667, "end_char": 12682, "source": "ner", "metadata": {"in_sentence": "It upheld the plea of the first respondent that the District Magistrate was not competent to grant pardon to Kesardeo Budhia.", "canonical_name": "Kesardeo Budhia"}}, {"text": "section 337", "label": "PROVISION", "start_char": 13037, "end_char": 13048, "source": "regex", "metadata": {"statute": null}}, {"text": "June 16, 1967", "label": "DATE", "start_char": 13209, "end_char": 13222, "source": "ner", "metadata": {"in_sentence": "The Civil and Sessions Judge has further held that the order of the District Magistrate was wholly without jurisdiction and in consequence by his order dated June 16, 1967, referred the matter to the High Court with a recommendation that the order dated_ June 1, 1966, of the District Magistrate granting pardon to the second respon~ dent should be quashed."}}, {"text": "September 11, 1968", "label": "DATE", "start_char": 13566, "end_char": 13584, "source": "ner", "metadata": {"in_sentence": "The High Court by its judgment and order dated September 11, 1968, has held that the District Magistrate has no power to grant pardon after it has been once refused by the First Class Magistrate enquiring 1 into the matter and that the order of the District Magistrate was revisable by the Civil and Ses'Sions Judge."}}, {"text": "June 1, 1966", "label": "DATE", "start_char": 13917, "end_char": 13929, "source": "ner", "metadata": {"in_sentence": "In this view, the High Court accepted the Reference and quashed the order dated June 1, 1966, of the District Magistrate, Kanpur."}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 13972, "end_char": 13976, "source": "ner", "metadata": {"in_sentence": "Mr. Rana, learned counsel for the State, has raised three eontentions :\n\n(1) The power under section 337 of the Criminal Procedure Code exercisable by the various Magistrates mentioned therein is concurrent and the District Magistrate in the circumstances of this case was competent to grant pardon to respon dent No.2. ("}}, {"text": "section 337", "label": "PROVISION", "start_char": 14061, "end_char": 14072, "source": "regex", "metadata": {"statute": null}}, {"text": "section 529", "label": "PROVISION", "start_char": 14557, "end_char": 14568, "source": "regex", "metadata": {"statute": null}}, {"text": "B .. P. Maheshwari", "label": "LAWYER", "start_char": 14743, "end_char": 14761, "source": "ner", "metadata": {"in_sentence": "J.) 733\n\nMr. B .. P. Maheshwari, learned counsel appearing for respondents 5 and 6, has supported the order of the High Court.", "canonical_name": "B .. P. Maheshwari"}}, {"text": "section 3", "label": "PROVISION", "start_char": 14889, "end_char": 14898, "source": "regex", "metadata": {"statute": null}}, {"text": "Maheshwan", "label": "OTHER_PERSON", "start_char": 15646, "end_char": 15655, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nMaheshwan further pointed out that if the State was aggrieved by the order of the Magistrate dated September 27, 1965,."}}, {"text": "section 337", "label": "PROVISION", "start_char": 16089, "end_char": 16100, "source": "regex", "metadata": {"statute": null}}, {"text": "section 338", "label": "PROVISION", "start_char": 16168, "end_char": 16179, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 16583, "end_char": 16600, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 435", "label": "PROVISION", "start_char": 18566, "end_char": 18577, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 18760, "end_char": 18769, "source": "regex", "metadata": {"statute": null}}, {"text": "section 435", "label": "PROVISION", "start_char": 18808, "end_char": 18819, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 529", "label": "PROVISION", "start_char": 18961, "end_char": 18972, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 19370, "end_char": 19381, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 19613, "end_char": 19624, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 20618, "end_char": 20627, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 338", "label": "PROVISION", "start_char": 20945, "end_char": 20956, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 21380, "end_char": 21391, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 21570, "end_char": 21579, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 22016, "end_char": 22042, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 338", "label": "PROVISION", "start_char": 22289, "end_char": 22295, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 22648, "end_char": 22655, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 337", "label": "PROVISION", "start_char": 22894, "end_char": 22900, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 23006, "end_char": 23017, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 23329, "end_char": 23340, "source": "regex", "metadata": {"statute": null}}, {"text": "July 24, 1951", "label": "DATE", "start_char": 23578, "end_char": 23591, "source": "ner", "metadata": {"in_sentence": "From the facts mentioned in the judgment it is seen that on July 24, 1951, the police submitted the charge-sheet against the accused and one Albert."}}, {"text": "Albert. Albert", "label": "OTHER_PERSON", "start_char": 23659, "end_char": 23673, "source": "ner", "metadata": {"in_sentence": "From the facts mentioned in the judgment it is seen that on July 24, 1951, the police submitted the charge-sheet against the accused and one Albert."}}, {"text": "August 4, 1952", "label": "DATE", "start_char": 23760, "end_char": 23774, "source": "ner", "metadata": {"in_sentence": "Albert, however, could not be traced and the other accused were committed to the Sessions on August 4, 1952."}}, {"text": "Albert", "label": "OTHER_PERSON", "start_char": 23776, "end_char": 23782, "source": "ner", "metadata": {"in_sentence": "Albert was arrested on July 28, 1952, and his confession was recorded by the Magistrate after complying with all the necessary formalities required by law."}}, {"text": "July 28, 1952", "label": "DATE", "start_char": 23799, "end_char": 23812, "source": "ner", "metadata": {"in_sentence": "Albert was arrested on July 28, 1952, and his confession was recorded by the Magistrate after complying with all the necessary formalities required by law."}}, {"text": "August 28, 1952", "label": "DATE", "start_char": 23935, "end_char": 23950, "source": "ner", "metadata": {"in_sentence": "On August 28, 1952, he was granted pardon by the District Magistrate, South Kanara."}}, {"text": "District Magistrate, South Kanara", "label": "COURT", "start_char": 23981, "end_char": 24014, "source": "ner", "metadata": {"in_sentence": "On August 28, 1952, he was granted pardon by the District Magistrate, South Kanara."}}, {"text": "section 338", "label": "PROVISION", "start_char": 24282, "end_char": 24293, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 24295, "end_char": 24318, "source": "regex", "metadata": {}}, {"text": "1954 Cr. L.J. 1638", "label": "CASE_CITATION", "start_char": 24826, "end_char": 24844, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 24924, "end_char": 24933, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 337", "label": "PROVISION", "start_char": 25178, "end_char": 25189, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 338", "label": "PROVISION", "start_char": 25201, "end_char": 25212, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 337(1)", "label": "PROVISION", "start_char": 25508, "end_char": 25522, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 25674, "end_char": 25685, "source": "regex", "metadata": {"statute": null}}, {"text": "Part V of Schedule ill of the Code", "label": "STATUTE", "start_char": 25767, "end_char": 25801, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras Government", "label": "ORG", "start_char": 25995, "end_char": 26012, "source": "ner", "metadata": {"in_sentence": "This Court, having regard to the order of Madras Government No."}}, {"text": "September 9, 1949", "label": "DATE", "start_char": 26028, "end_char": 26045, "source": "ner", "metadata": {"in_sentence": "3106 dated September 9, 1949, and entry 7(a) in Part V of Schedule III, rejected this contention."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 26075, "end_char": 26087, "source": "regex", "metadata": {"linked_statute_text": "Part V of Schedule ill of the Code", "statute": "Part V of Schedule ill of the Code"}}, {"text": "s. 337", "label": "PROVISION", "start_char": 26195, "end_char": 26201, "source": "regex", "metadata": {"linked_statute_text": "Part V of Schedule ill of the Code", "statute": "Part V of Schedule ill of the Code"}}, {"text": "s. 337", "label": "PROVISION", "start_char": 26504, "end_char": 26510, "source": "regex", "metadata": {"linked_statute_text": "Part V of Schedule ill of the Code", "statute": "Part V of Schedule ill of the Code"}}, {"text": "section 3", "label": "PROVISION", "start_char": 26697, "end_char": 26706, "source": "regex", "metadata": {"linked_statute_text": "Part V of Schedule ill of the Code", "statute": "Part V of Schedule ill of the Code"}}, {"text": "section 337", "label": "PROVISION", "start_char": 26824, "end_char": 26835, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 27362, "end_char": 27371, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 27375, "end_char": 27386, "source": "regex", "metadata": {"statute": null}}, {"text": "section 338", "label": "PROVISION", "start_char": 28790, "end_char": 28801, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 337 and 338", "label": "PROVISION", "start_char": 29136, "end_char": 29156, "source": "regex", "metadata": {"statute": null}}, {"text": "section 498", "label": "PROVISION", "start_char": 29341, "end_char": 29352, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 29364, "end_char": 29373, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 29835, "end_char": 29844, "source": "regex", "metadata": {"statute": null}}, {"text": "section 436(1)", "label": "PROVISION", "start_char": 30026, "end_char": 30040, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 30291, "end_char": 30300, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 30517, "end_char": 30526, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 30717, "end_char": 30726, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 30782, "end_char": 30791, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 32203, "end_char": 32214, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 435", "label": "PROVISION", "start_char": 32822, "end_char": 32833, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court, Sessions Judge, District Mastrate", "label": "COURT", "start_char": 32915, "end_char": 32960, "source": "ner", "metadata": {"in_sentence": "Section 435, which deals with the power to call for records of inferior courts, takes in the High Court, Sessions Judge, District Mastrate\n\nand any S'!lb-divisional Magistrate emoowered bv the State G()vemment in that behalf."}}, {"text": "section 1A", "label": "PROVISION", "start_char": 33843, "end_char": 33853, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 33857, "end_char": 33868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 435", "label": "PROVISION", "start_char": 34290, "end_char": 34301, "source": "regex", "metadata": {"statute": null}}, {"text": "section 337", "label": "PROVISION", "start_char": 34362, "end_char": 34373, "source": "regex", "metadata": {"statute": null}}, {"text": "section 338", "label": "PROVISION", "start_char": 34383, "end_char": 34394, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 34437, "end_char": 34453, "source": "ner", "metadata": {"in_sentence": "The decision that has been brought to our notice holding that section 435 cannot be invoked in the case or an order made either under section 337 or under section 338 is that of a learned single\n\nJudge of the Delhi High Court in M. M. Kochar v. The State( 1 ) ."}}, {"text": "section 435", "label": "PROVISION", "start_char": 35005, "end_char": 35016, "source": "regex", "metadata": {"statute": null}}, {"text": "September 16, 1968", "label": "DATE", "start_char": 35217, "end_char": 35235, "source": "ner", "metadata": {"in_sentence": "In its judgment dated September 16, 1968, this Court on merits agreed with the High Court that the tender of pardon was proper."}}, {"text": "section 529", "label": "PROVISION", "start_char": 36185, "end_char": 36196, "source": "regex", "metadata": {"statute": null}}, {"text": "section 529", "label": "PROVISION", "start_char": 36277, "end_char": 36288, "source": "regex", "metadata": {"statute": null}}, {"text": "section 529", "label": "PROVISION", "start_char": 36441, "end_char": 36452, "source": "regex", "metadata": {"statute": null}}, {"text": "June 1,\n\n1966", "label": "DATE", "start_char": 36729, "end_char": 36742, "source": "ner", "metadata": {"in_sentence": "The order dated June 1,\n\n1966 ol the District Magistrate, Kanpur, will stand restored."}}]}
{"document_id": "1973_3_742_746_EN", "year": 1973, "text": "COMMERCIAL TAX-OFFICER, BANGALORE, .ETC. ETC.\n\nSRI VENKATESWARA OIL MILLS & ANR. ETC. ETC.\n\nMarch 16, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.] Central Sales Tax (Amendment) A.ct, 1959, s. 10 and Mysore Sales Tax Rules 1957, r. JS-Retrospective amendment-Jn correcting mis takes it is the law as amended that has lo be applied-Rule 38 has to be read with s. 10 of amending Act-A.ssessees cannot have adiantate of s. 10(1) without discharging burden placed on them ins. 10(1).\n\nAfter the decision of this Court in Yadalam Lakshminarasimhiah Setty's case the President 'of India on June 9, 1969 promulgated tbe Cen tral Sales Tax (Amendment) Ordinance 1969 with tbe object of super seding the effect of that decision and to bring to tax sales effected by every dealer in the course of inter State trade or commerce notwithstand\n\ning the fact that no tax could have beeo levied under the sales-tax law ot the appropriate State if that sale had been an intra Sta!IY sale.\n\nThat provision was given retrospective effect but s. 10( 1) df the Amendment Act provided that if during the relevaJll period a dealer had not collected sales-tax on the ground tha~ sales-tax was not leviable on the sale in question under the unamended Act be would not be liable to pay sale .. tax under the amended Act. The burden of proving, however, that no sales-tax had been collected was plad by s. 10(2) on the dealer. The Ordmance was replaced by the Central Sales Tax (Amendment) Act, 1969. After the Amendment Act came into force the sales-tax authorities sought to reopen under r. 38 of the Mysore Sales Tax Rules 1957 the assessments made on certain dealers on the ground that these assessments suffered from mistakes apparent on the record.\n\nIn writ petitions filed by the dealers, the High Court of Mysore accepted their contention that the Sales Tax Officer lsid no jurisdiction to !'e9SSess the asoessees as it was impermissibl• for him to receive any additional evidence with a view to decide the ques tion whether the assessees had collected sales-tax on the turnover in question and consequently he could not take any assistance from rule 38.\n\nAllowing the appeals by special leave filed by the Revenue.\n\nHELD : It is well settled that if a subsequent legislation is given retrospective effect and is deemd to hll)>e been in force at the time when the order to be rectified was made, then the law to be applied is the amended law.\n\nIn other worys, for finding out whether there is a mistake apparent on the record the authority has to look to the amended law and not to the law that was in force at the time the original order \\\\'as made. [748Hl Rule 38 of the Mysore Sales Tax Rules must be read with s. 10 of the Amendment Act.\n\nIf so read it is clear that the assessin2 authorities be 1fore reassessing the dealers should afford them the opportunft}' to S'ltisfy them that they have not co'lected the tax.\n\nIf the impact of s. IO is ignor ed, as the High Court had done, then the assessments in -question afe liable to be reopened whether the assessees had collected tax or not. The assessees cannot have the benefit of s. 10(1) but not the burden of nroof placed on them under s. 10(2). [746E] ·\n\nYadafan1 Laksfuninarasilnhial1 Setty and Sons v. State of Mysore, 13 S.T.C. 583: State of Mysore v. Yada/Qm Lakshminarasimhiah Setty and Sons, 16, S.T.C. 231 (S.C.) M. K .. Venkatachalam, Income-tax Officer and .A.nr. v. Bombcy Dying and Manufacturing Co. Ltd., 34 I.T.R. 143 and\n\n.A Mabwd Arecanut Syndicate (P) Lrd. represented by Its M\"\"\"l'r K.\n\nRania Rao, Arecanut Merchants, Shimoga_ v. Commercial Tax Qfficer, Shimoga and Ors.\n\nWrit Petition No. 5223 of 1969-0.vil Appeal No. 2632 of 1972, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2593, 2594-2596, 2599, 2601-2605, 2609-2614, 2615, 2616, 2618, 8 2619-2627, 2628, 2629-2631, 2632 and 2634 of 1972.\n\nAppeals by special leave from the judgment and order dated\n\nOtober 12 and 13, 1971, November 15, 1971, October 25, and 13, 1971 and November 18, 1971 of the Mysore High Court at Bangalore in Writ Petitions Nos. 3978 of 1970, 1003-1005 of\n\n1971. 5542, 6343, 6428, 6466, 6469, 6790, 6988, 7035, 7057, c 5504, 5514, 5525, 6001, 6082, 6110, 5959, 6111, 6775, 2779, 5538, 5540, 6080, 6081 and 6084 of 1969, 2780, 2925, 2926, 3347170, 5006 of 1970, 997 and 998 of 1971, 844 of 1971, and 699 of 1969.\n\nA. K. Sen, S. S. Javali and M. Veerappa, for the appellants (in C.A. No. 2593).\n\nM. Veernppa, for the appellants (in all other appeals).\n\nK. Srinivasan and Vineet Kumar, for respondent No. 1 (in C.A. Nos. 2624, 2616, 2611, 2614 & 2544 & 2593) for the respondent (in C. A. Nos. 2594-2596 & 2628).\n\nM .. C. Setalvad and K. N. Bhatt, for the respondents (in E C.A. No. 2598 in C.A. No. 2632).\n\nK. R. Chowdhary and K. Rajendra ChowdhtlfY., for respondent No. 1 (in C. A. No. 2598).\n\nS. P. Nayar and R. N. Sachthey, for respondent No. 2 (in C.A.\n\nNos. 2593, 2597-2605, 2606-2608, 2609-2614, 2615-2618, 2619-2627, 2633-2634).\n\nThe Judgment of the Court was delivered by .\n\nHEGDE, J.-In these appeals by special leave, a common question of Jaw arises for decision and that question relates to the scope ancl effect of the Central Sales Ta11 (Amendment) Act, 1969.\n\nThe amendment in question came to be enacted under the following circumstances. The High Court of Mysore in Yadalam Lakshminarasimhiah Setty and Sons v. State of Mysore(1), held that under s. 8 (2) of the Central Sales Ta11 Act, 1956, prior to its amendment by Act 31 of 1958 a \"sale\" in the course of inter- State trade or commerce is to be ta11ed at the same rate and in H the same manner as it would have been tued, under the appropriate State law, if it had been an intra State transaction, but\n\nfl) 13 S.T.C. 583.\n\nwithout taking into consideration lhe mlnimdm twrnover fixed bly the State law for the purpose of determilring the liability of the \"dealer\" to be assessed under the State sales tax law. It further held that the words \"same manner\" in section 8(2) relate to the calculation of the tax and not refer to the procedure to be adopted while assessing the \"dealer.\"\n\nThis decision was affirmed by the Supreme Court in State of Mysore v. Y addalam Lakshminarasimhiah Setty and Sons.(') Thereafter on June 9, 1969, the President of India promulgated the Central Sales Tax (Amendment) Ordinance 1969, with the object of superseding the effect of the decision in Y addalam Lakshminarasimhiah Setzy's case and to bring to tax sales effected by every dealer in the course of intrai State trade or commerce notwithstanding the fact that no tax could have been levied under the sales tax law of the appropriate State if that sale had been an intra State sale. The provision was given retrospective effect but it was provided in s. l 0 ( l ) of the Amendment Act :\n\n\"Where any sale of goods in the course of inter-state trade or commerce has been effected during the period between the 10th day of November, 1964 and the 9th day of June 1969, and the dealer effeating such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turnover relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale.\"\n\nSub-section ( 2) of s. 10 provided :\n\n\"For the purposes of sub-section ( 1), the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub-section (1) or in respect of any portion of the turnover relating to such sale shall be on the dealer effecting such sale.\"\n\nThat Ordinance was replaced the Cen_tral Sales Tax (Amendment) Act, 1969. After the amendment came into force several Sales Tax Officers who had earlier assessed the assessees in accordance with the decision in Y adalam Lakshinaraslmhiah Setty' s case issued notices to those assessees proposing to reotify\n\n(I)\n\nS.T.C. 231.\n\nA their assessments on the ground that the earlier assessments suffered from mistakes . apparent on the record. The respondents in these appeals resisted those notices on the ground that he had no competence to reopen the assessment. The Sales-tax Officers rejected that contention. Thereafter the respondents in these appeals challenged the orders made by the Sales-tax Officers before B the High Court of Mysore l:fy means of petitions under Art. 226 of the Constitution on two grounds viz. ( 1) ihat the Sales-tax Officer had no .iurisdiction to reopen the assessment as there was no mistake apparent on the record and (2) that the said Officer was in error in coming to the conclusion that the assessee had collected tax on the turnover which was earlier considered as c exempted.\n\nThe High Court accepted the first of the two aforementioned contentions viz. that the Sales Tax. Officer had no jurisdiction to reassess the assessees as it was impermissible for him to receive any additional evidence with a view to decide the question whether the assessees had collected sales tax on the turnovers in question and consequently he could not take any assist- D ance from the 38 of the Mysore Sales Tax Rules, 1957.\n\nBefore proceeding to examine the question of law arising for decision, it is necessary to note that in all the cases before us except in one which will be dealt with separately, we are told that\n\nthe assessees had been given opportunity to show that they had not collected sales tax in respect of the turnover with which they were concerned, but according to the OJJjcers concerned, the assessees had failed to discharge their burden. The finding of the assessing officers on this point is a finding of fact and was not open to review by the High Court in petitions under Art. 226 of the Constitution.\n\nRule 38 of the Mysore Sales Tax Rules, 1957 empowers the assessing, appellate or revising authority or the Appellate Tribunal at any time within five years from the date of any order passed by-it to rectify any mistake apparent on the record.\n\nThe High Court opined, in our opinion rightly that in order to attract the .power to rectify, it is not sufficient, ii there is merely a mistake in the order sougnt to be rectified. The mistake to be G rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have bieen in force at the time when the order to be rectified was made then the law to be applied is the amended lawsee M. K. VenkaNichaa/am, Income-tax Officer and Anr. v. •- Bombay Dyeing and Manufacturing Co. Ltd.(1). In other words for finding out whether. there is a mistake apparent on the record, H the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The\n\n0) 34 I.T.R. 143.\n\nHigh Court had accepted this principle but rt proceeded to rule A that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any . evidence whatsoever as the mistake to be rectified must be apparent on the record.\n\nOn that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, It is not open to the B assessing authorities to reopen the assessments.\n\nThis approach is neither !ogical nor sound in law.\n\nSection 10 of ihe Amendment. Act mitigates the rigor of the amendment made to s. 6 ol the Principal Act. But for s. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in GUestiom whether he had collected taJt or not.\n\nIf the impact of s. 10 isignored, as the High Court has done, then the assessments in ques• C tion are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of s. 10(1) but not the burden of proof placed on them under s. 10(2). If the reasoning of the High CoUlt is correct then it is the' assessees who will bie deprived of the benefit ol s. 10(1) of the Amendment Act because there could not have been any finding in the original D assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a farther oppPrtunity to the assessees whose assessments are soµght to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 3 8 of the Mysore Sales Tax Rules must be read with s. 1 a of the E Amendment Act. If so read, it is clear that the assessing authori~ ties before rc::, assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax.\n\nFor the reasons mentioned above, we allow these appeal~. set aside the orders of the High Court and dismiss the Writ Petitions with costs. But in the case of Malnad Arecanut Syndicate (P) F Ltd., represented by its Manager K. Rama Rao, Arecanut Mar. chants, Shimoga v. Commercial Tax Officer, Shimoga and Ors.\n\n(Writ Petition No. 5223 ol 1969-Civil Appeal No. 2632 of\n\n1972) we are informed that rtification proceedings are still pending before the assessing authority.\n\nIf that is so, the sales tax officer shall proceed to dispose of the same according to law.\n\nThe G\" respondents shall pay the costs of the. appellant in these appeals -one hearing fee .\n\nG.C.\n\nAppeals allowed.", "total_entities": 58, "entities": [{"text": "COMMERCIAL TAX-OFFICER, BANGALORE, .ETC.", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "COMMERCIAL TAX-OFFICER, BANGALORE,. ETC. ETC", "offset_not_found": false}}, {"text": "SRI VENKATESWARA OIL MILLS & ANR. ETC. ETC", "label": "RESPONDENT", "start_char": 47, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "SRI VENKATESWARA OIL MILLS & ANR. ETC. ETC", "offset_not_found": false}}, {"text": "March 16, 1973", "label": "DATE", "start_char": 92, "end_char": 106, "source": "ner", "metadata": {"in_sentence": "March 16, 1973\n\n[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]"}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 109, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "P. JAGANMOHAN REDDY", "label": "JUDGE", "start_char": 122, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "P. JAGANMOHAN REDDY", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 146, "end_char": 163, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "s. 10", "label": "PROVISION", "start_char": 207, "end_char": 212, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore Sales Tax Rules 1957", "label": "STATUTE", "start_char": 217, "end_char": 244, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 376, "end_char": 381, "source": "regex", "metadata": {"linked_statute_text": "Mysore Sales Tax Rules 1957", "statute": "Mysore Sales Tax Rules 1957"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 434, "end_char": 442, "source": "regex", "metadata": {"linked_statute_text": "Mysore Sales Tax Rules 1957", "statute": "Mysore Sales Tax Rules 1957"}}, {"text": "Yadalam Lakshminarasimhiah Setty", "label": "OTHER_PERSON", "start_char": 534, "end_char": 566, "source": "ner", "metadata": {"in_sentence": "After the decision of this Court in Yadalam Lakshminarasimhiah Setty's case the President 'of India on June 9, 1969 promulgated tbe Cen tral Sales Tax (Amendment) Ordinance 1969 with tbe object of super seding the effect of that decision and to bring to tax sales effected by every dealer in the course of inter State trade or commerce notwithstand\n\ning the fact that no tax could have beeo levied under the sales-tax law ot the appropriate State if that sale had been an intra Sta!IY sale."}}, {"text": "India", "label": "GPE", "start_char": 592, "end_char": 597, "source": "ner", "metadata": {"in_sentence": "After the decision of this Court in Yadalam Lakshminarasimhiah Setty's case the President 'of India on June 9, 1969 promulgated tbe Cen tral Sales Tax (Amendment) Ordinance 1969 with tbe object of super seding the effect of that decision and to bring to tax sales effected by every dealer in the course of inter State trade or commerce notwithstand\n\ning the fact that no tax could have beeo levied under the sales-tax law ot the appropriate State if that sale had been an intra Sta!IY sale."}}, {"text": "June 9, 1969", "label": "DATE", "start_char": 601, "end_char": 613, "source": "ner", "metadata": {"in_sentence": "After the decision of this Court in Yadalam Lakshminarasimhiah Setty's case the President 'of India on June 9, 1969 promulgated tbe Cen tral Sales Tax (Amendment) Ordinance 1969 with tbe object of super seding the effect of that decision and to bring to tax sales effected by every dealer in the course of inter State trade or commerce notwithstand\n\ning the fact that no tax could have beeo levied under the sales-tax law ot the appropriate State if that sale had been an intra Sta!IY sale."}}, {"text": "s. 10( 1)", "label": "PROVISION", "start_char": 1040, "end_char": 1049, "source": "regex", "metadata": {"linked_statute_text": "Mysore Sales Tax Rules 1957", "statute": "Mysore Sales Tax Rules 1957"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 1393, "end_char": 1401, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax (Amendment) Act", "label": "STATUTE", "start_char": 1450, "end_char": 1483, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "After the Amendment Act", "label": "STATUTE", "start_char": 1491, "end_char": 1514, "source": "regex", "metadata": {}}, {"text": "Mysore Sales Tax Rules 1957", "label": "STATUTE", "start_char": 1593, "end_char": 1620, "source": "regex", "metadata": {}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 1790, "end_char": 1810, "source": "ner", "metadata": {"in_sentence": "In writ petitions filed by the dealers, the High Court of Mysore accepted their contention that the Sales Tax Officer lsid no jurisdiction to !'"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 2712, "end_char": 2717, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 3133, "end_char": 3141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 3191, "end_char": 3199, "source": "regex", "metadata": {"statute": null}}, {"text": "Mabwd Arecanut Syndicate", "label": "RESPONDENT", "start_char": 3495, "end_char": 3519, "source": "ner", "metadata": {"in_sentence": "v. Bombcy Dying and Manufacturing Co. Ltd., 34 I.T.R. 143 and\n\n.A Mabwd Arecanut Syndicate (P) Lrd."}}, {"text": "Mysore High Court at Bangalore", "label": "COURT", "start_char": 4045, "end_char": 4075, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated\n\nOtober 12 and 13, 1971, November 15, 1971, October 25, and 13, 1971 and November 18, 1971 of the Mysore High Court at Bangalore in Writ Petitions Nos."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 4383, "end_char": 4392, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Javali and M. Veerappa, for the appellants (in C.A. No."}}, {"text": "S. S. Javali", "label": "LAWYER", "start_char": 4394, "end_char": 4406, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Javali and M. Veerappa, for the appellants (in C.A. No."}}, {"text": "M. Veerappa", "label": "LAWYER", "start_char": 4411, "end_char": 4422, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Javali and M. Veerappa, for the appellants (in C.A. No.", "canonical_name": "M. Veerappa"}}, {"text": "M. Veernppa", "label": "LAWYER", "start_char": 4464, "end_char": 4475, "source": "ner", "metadata": {"in_sentence": "M. Veernppa, for the appellants (in all other appeals).", "canonical_name": "M. Veerappa"}}, {"text": "K. Srinivasan", "label": "LAWYER", "start_char": 4521, "end_char": 4534, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and Vineet Kumar, for respondent No."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 4539, "end_char": 4551, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and Vineet Kumar, for respondent No."}}, {"text": "M .. C. Setalvad", "label": "LAWYER", "start_char": 4680, "end_char": 4696, "source": "ner", "metadata": {"in_sentence": "M .. C. Setalvad and K. N. Bhatt, for the respondents (in E C.A. No."}}, {"text": "K. N. Bhatt", "label": "LAWYER", "start_char": 4701, "end_char": 4712, "source": "ner", "metadata": {"in_sentence": "M .. C. Setalvad and K. N. Bhatt, for the respondents (in E C.A. No."}}, {"text": "K. R. Chowdhary", "label": "LAWYER", "start_char": 4774, "end_char": 4789, "source": "ner", "metadata": {"in_sentence": "K. R. Chowdhary and K. Rajendra ChowdhtlfY., for respondent No."}}, {"text": "K. Rajendra ChowdhtlfY.", "label": "LAWYER", "start_char": 4794, "end_char": 4817, "source": "ner", "metadata": {"in_sentence": "K. R. Chowdhary and K. Rajendra ChowdhtlfY., for respondent No."}}, {"text": "S. P. Nayar", "label": "OTHER_PERSON", "start_char": 4862, "end_char": 4873, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and R. N. Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 4878, "end_char": 4892, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and R. N. Sachthey, for respondent No."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 5050, "end_char": 5055, "source": "ner", "metadata": {"in_sentence": "HEGDE, J.-In these appeals by special leave, a common question of Jaw arises for decision and that question relates to the scope ancl effect of the Central Sales Ta11 (Amendment) Act, 1969."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 5430, "end_char": 5434, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8(2)", "label": "PROVISION", "start_char": 5996, "end_char": 6008, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 6156, "end_char": 6169, "source": "ner", "metadata": {"in_sentence": "This decision was affirmed by the Supreme Court in State of Mysore v. Y addalam Lakshminarasimhiah Setty and Sons.(')"}}, {"text": "Lakshminarasimhiah Setzy", "label": "OTHER_PERSON", "start_char": 6424, "end_char": 6448, "source": "ner", "metadata": {"in_sentence": "Thereafter on June 9, 1969, the President of India promulgated the Central Sales Tax (Amendment) Ordinance 1969, with the object of superseding the effect of the decision in Y addalam Lakshminarasimhiah Setzy's case and to bring to tax sales effected by every dealer in the course of intrai State trade or commerce notwithstanding the fact that no tax could have been levied under the sales tax law of the appropriate State if that sale had been an intra State sale.", "canonical_name": "Lakshminarasimhiah Setzy"}}, {"text": "10th day of November, 1964", "label": "DATE", "start_char": 6932, "end_char": 6958, "source": "ner", "metadata": {"in_sentence": "The provision was given retrospective effect but it was provided in s. l 0 ( l ) of the Amendment Act :\n\n\"Where any sale of goods in the course of inter-state trade or commerce has been effected during the period between the 10th day of November, 1964 and the 9th day of June 1969, and the dealer effeating such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turnover relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale.\""}}, {"text": "9th day of June 1969", "label": "DATE", "start_char": 6967, "end_char": 6987, "source": "ner", "metadata": {"in_sentence": "The provision was given retrospective effect but it was provided in s. l 0 ( l ) of the Amendment Act :\n\n\"Where any sale of goods in the course of inter-state trade or commerce has been effected during the period between the 10th day of November, 1964 and the 9th day of June 1969, and the dealer effeating such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turnover relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale.\""}}, {"text": "section 9", "label": "PROVISION", "start_char": 7389, "end_char": 7398, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 7616, "end_char": 7621, "source": "regex", "metadata": {"statute": null}}, {"text": "Lakshinaraslmhiah Setty", "label": "OTHER_PERSON", "start_char": 8132, "end_char": 8155, "source": "ner", "metadata": {"in_sentence": "After the amendment came into force several Sales Tax Officers who had earlier assessed the assessees in accordance with the decision in Y adalam Lakshinaraslmhiah Setty' s case issued notices to those assessees proposing to reotify\n\n(I)\n\nS.T.C. 231.", "canonical_name": "Lakshminarasimhiah Setzy"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8682, "end_char": 8690, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore Sales Tax Rules, 1957", "label": "STATUTE", "start_char": 9425, "end_char": 9453, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10028, "end_char": 10036, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Rules, 1957", "statute": "the Mysore Sales Tax Rules, 1957"}}, {"text": "Mysore Sales Tax Rules, 1957", "label": "STATUTE", "start_char": 10074, "end_char": 10102, "source": "regex", "metadata": {}}, {"text": "Section 10", "label": "PROVISION", "start_char": 11671, "end_char": 11681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11749, "end_char": 11753, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 11784, "end_char": 11789, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 11936, "end_char": 11941, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 12138, "end_char": 12146, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 12196, "end_char": 12204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 12318, "end_char": 12326, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 12789, "end_char": 12793, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_747_754_EN", "year": 1973, "text": "COLLECTOR OF ESTATE DUTY\n\nMIS R. KANAKASABAI AND ORS.\n\nMarch 16, 1973 (K. S. HEGDE, P. )AGANMOHAN Rl!DDY AND H. R, KHANNA, JJ.)\n\nEstaie Duty Act, 1953 ss. 10 and 12-Applicability of.\n\nR dies in 1959 leaving behind him four sops, some grandsons, wife and daughter.\n\nThese accountable persons furnished an account of the properties passing on the death di R to the Deputy Controller of Estate Duty.\n\nThe Deputy Controller added to the return made the value of certain properties settled by the deoeased on his wife, sons, grandsons and daughter on the ground that the deceased had reserved to himself an interest for life in the properties comprised in the above settlements, within the meaning of s. 12 of the Estate Duty Act 1953.\n\nThe deed in favour of the sons and the minor grandsons contained a R'rovision to the effect that these would have to pay to the deceased during his lifetime a sum of Rs. 1,000/. a year for his domestic expenses; the deed in favour of the daughter contained a Provision that she would have to maintain him and bi.s wife for their lifetime; the deed in favour of the wife expressed a hope that she would support him in his lifetime.\n\nIn al'peal the Central Board of Direct Taxes held that the settlements fell within the scope of s. 12 or at any rate t s. JO of the Act. The High Court in reference held (I) thats. 12 was wholly inapplicable to the facts of the cue;\n\n(ii) that even under s. IQ, !IOI the entir~_yalue of the property settled on the various beneficiaries but only the value of the interest reserved by the deceased to himself during his life time could he taken into consideration :\n\n(iii) that the deed in favour of the wife did not reserve any benefit in favour of the dtoceased as it expressed only a hope. The Revenue as well as the asmsees appealed to thIS Court.\n\nAllowing the appeal of the assessees, HELD : (i) So far as the stipulation contained in the deed in favour of the wife of the deceased was concerned it was merely a hope and expectation and no enforceable liability as such was created. The High Court was therefore right in holding that no part of the property tied on the wife of the deceased could be taken into consideration in computing the value of the property that passed on the death of the dOC<Oased. [751A-Bl\n\n(ii) The High Court was further right in holding that s. 12 was wholly inapplicable to the facts of the case. It wls n(!body's oase that the beneficiaries became entitled to the properties settled on them after the death of the deceased.\n\nThere was no support for the contention of the Revenue that an interest in the propei-ties settled was reserved to the deceased during his lifetime or fur any period after the properties were settled; nor was. there any provision in the deeds enabling the deceased to reclaim the property or its possession under any circumstances.\n\nNone of the conditions laid down in s. 12(1) were attracted to the provisions contained in the deeds of settlement.\n\n(7510-FJ\n\n(iii) lhe facts of the case also did not come within the scope of s. IO, The provisions for .., niml payments and maintenance made in the deed• were not cha; ged on the prol'°rties settled. Hence the deceased could . not he said to have retained any mterest in tne pro, P; rties settled. Therefore it could not be said that he retained any benefit either in the properties settled or in respect of their possession. !7S4 A-BJ\n\nIf, as contended by the Revenue, the expression \"of any benefit to him by contract or otherwise\" in s. 10 mean any benefit under the gift, the legislature should have said so.\n\nThere was no difficulty in saying so. It is a well accepted rule of construction that if a taxing prgvision i& ambiguous and is reasonably capable of more than one interpretation, that interpretation which is beneficial to . the subjecl must be adopted. It is impermissible for the court to read into a taxing provision any words which are not there or exclude words which are there.\n\nThe. words found in the provisiop must be given their natural meaning. [753F-Gl George De Costa v. Controller of Estate Duty Mysore, 51 I.T.R. 497, considered and applied.\n\nMohammad Bhai and Anr. v. Controller of Estate Duty, Andhra Pradesh, 69 I.T.R. 770, held inapplicable.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1770 of 1970 and 474 1973. Appeals by special leave from the judgment and order dated April 9, 1969 of the Madras High Court in Tax Case No. 2 of 1966 (Referenee No. 1 of 1966).\n\nN. D. Karkh;, is, S. P. 'Nayar and R. N. Sachthey, for the appellant (in C.A. No. 1770170) and for respondents (in No. 474173).\n\nM. C. Setalvad, K. Srinivasan and T. A. Ramachandran, for respondents (in C.A. No. 1770170 and for appeals (in C.A. No. 474/73).\n\nThe Judgement of the Court was delivered by HEGDE, J. Both these appeals, by special leave arise from the judgment of the High Court of Madras in a Reference under s. 64(1) of the Estate Duty Act, 1953 (to be hereinafter referred to as the Act).\n\nThe question of law referred in that case is :\n\n\"Wllether, on the facts and in the circumstances of the case, the properties settled It' the deceased by the six deeds of settlement (two of them dated 26th June, 1951 and four of them dated 30th June 1951) valued at Rs. 7,38,656/- or any part thereof was not liable for inclusion in the estate of the deceased as property deemed to pass on his death.\" The High Court answered that question partly in favour of the Revenue and partly in favour of the assessee. It opined that the value of the property gifted in favour of the wife ol the deceased is not to be taken into consideration in computing the value of the property that passed on the death of the deceased. In respect of the properties gifted to the sons, grandsons and the daughter of the deceased only the annual payments that had to be made to the deceased as well as his right to maintenance should be valued for the purpose of determining the extent of the right that passed .on his death.\n\nThe facts oi the case material for the purpose of deciding the question of law formulated above as could be gathered from the case stated are as follows :\n\nOne Ratnasabapathy Pillai was the owner of the properties with which we are concemed in this case. He died on February 5, 1959 leaving btehind him his four sons, some grandsons, wife and daughter who are the accountable persons. They furnished an account oi the properties passing on the death of the deceased to the Deputy Controller of Estate Duty, Madras who was the assessing authority.\n\nThe Deputy Controller did 1110! accept the correctness of the return made by them. He added to the return made, the value of the following properties settled by the deceased on his wife, sons, grandsons and daughter.\n\nValue of property settled\n\nRs.\n\nI. Deed dated the 26th June, 1951 settling 67.60!\n\nacres ()f agricultura1 lands on Shri D. Na taraja Pillai, son 1,10,408\n\n2. Deed dated the 25th June, 1951 settling 74.91 acres of agricultural lands on Shri R. Ramalingarn Pillai, son 1,12,365\n\n3. Deed dated the 30th June. 1951 settling 80.72 acres of agricultural lands on Shri R. Subramania Pillai, son 1,21,080\n\n4. Deed dated the 30 June, 1951 settling 67.95\n\nacres of agricultural 1ands on Ganapathi PiUai and Sivakumar Pillai, minor grandsons of the deceased 1,01,925\n\n5. J\"ed dated the 30th June, 19SI settling 133.55 acres of agricultural lands of Snit. T. Sivakumu AmmaJ,.daughter l,99,623\n\n6. Deed dated the 26th June, 1951 settling 68.17\n\nacres of agricultural lands on the wife, Smt.\n\nRajambal 1,02,255\n\nTotal 7,38,656\n\nBy the deeds in question the deceased settled the properties in favour of the beneficiaries absolutely and with full power of aliena. tion. The deeds in favour of his sons and the minor grandsons contained a provision as under :\n\n\"You have to pay me during my life time a sum of Rs. 1000/ • per year for my domestic expenses.\" The deed in favour of the daughter contained a provision :\n\n\"You have to maintain myself and my wife during our life time.\" The deed in favour of the wife contained the followil!g words:\n\n\"In the hope that you will support me during my life-time, I do hereby settle .... \"\n\n1he Deputy Controller held that the deceased had reserved to himself an interest for life in the properties comprised in the above settlements, within the meaning of s. 12 of the Act. He accordingly included the value of 'those properties for the purpose of determining the value of the properties that passed on the death of the deceased.\n\nThe accountable persons appealed to the Central Board of Direct Taxes, New Delhi.\n\nThey contended before the Board that the conditions or stipulations contained in the deeds of settlement in faVO!Jr of the sons, minor grandsons and daughter merely amounted to an expression oJ' a desire and hence could not be interpreted as a reservation within '; l; ie meaning of s. 12 as those conditions or stipulations did not detract from the. absolute character of the settlements. With regard to the settlement made in favour of the wife, it was argued before the Board that the deceased had expressed only a hope that his wife would support him and maintain him ducing his lifo time, and the words used in the deed were vague and unenforce_able in law as a stipulation.\n\nThe Board rejected these contentions.\n\nIt opined tha_t the main point in issue in the case was whether an interest in the property was reserved by the deceased. It held that all the settlements fell within the scope of s. 12 or at any rate it came withins. 10 of the Act.\n\nThereafter at the instance of the accountable persons, the question set out earlier was referred to the High Court.\n\nWe have earlier set out the answer given by the High Co)lrt.\n\nThe High Court .held that s. 12 was wholly inapplicable to the facts of the case and the case has to be considered only under , s. 10. Even under that section, the High Court opined, the entire value of the property settled on the various beneficiaries cannot be taken into consideration. All that can be taken into considera\" tion is the value of the interest reserved by the deceased to himself during his life time. Further it held that the value of the properties settled on the wife of the deceased should be wholly excluded from consideration as the expression of a wish that his wife should suppon him during his life time did not amount to a retention of any benefit in the property settled. On behalf of the Revenue, the conclusion reached by the High Coun was challenged. It is contended that the value of the entire property settled by the deceased should have been taken into consideration.\n\nBut, on the other hand it was contended on behalf of the accountable persons that neither s. 12 nor s. I 0 is applicable to the facts of the present case. Before considering whether ss. 10 and 12 or either of them is applicable to the facts of the case, it is necessary to mention that in respect o.f the amount made payable by the sons and grandsons to the deceased, no charge on the property settled was created.\n\nSimilarly no charge was created on the property settled on the daughter in respect of her liability to maintain her father and mother. So far as the stipulation contained in the deed in favour\n\n( I\n\n• ...\n\nof the wife of the deceased, it was merely a hope and expectatioa and no enforceable liabi!fty as such wis created. Hence we are in agreement with the High Court that no part of the property set'lJej on the wife of the deceased can be taken into consideration in computing the value iJf. the property that passed on the death of the deceased. We are also in agreement with the High Court that s. 12 is wholly inapplicable to the facts of the. case.\n\nThat section to the extent material for our present purpose: reads: \"12 ( 1) Property passing under any sett!erii'ent made by the aeceased by deed or. any other instrument not taking effect as a will whereby an interest in such property for life or an'y other period determinable by reference to death is reserved either expressly or !ly implication to the settler or whereby the settlor may have reserved to himself the right by the exercise of any power, to restore to himself or to reclaim the absolute interest in such property shall be deemed to pass on the settler's death.\" D [The provisos to the Section, the explanation as well as sub-s-\n\n(2) of s. 12 are not relevant for our present purpose.] ·\n\nSo far as the applicability of s. 12(1) is concerned, it is no.\" body's case that the beneficiaries became entitled to the properties settled on them after the death of the deceased. There is no support for the contention ct the Revenue that an interest in the properties settled was reserved to the deceased during his. life time or for any period after the properties were settled; nor is there any provision in the deeds enabling the deceased to reclaim the property or its possession under any circumstance.\n\nNone of the. conditions laid down in s. 12 ( 1) are attracted to the provisions contained in the deeds ct settlement.\n\nNow turning to s. 10,' the portion that is material for our pre, ent purpose is found in the main section. . The provisos to that section are not relevant.\n\nThe material part of the section reads : · · ·\n\n''.Property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not\n\nimmediately assumed by !he donee and thenceforward re<ained to the entire exclusion of the donor or of any benefit to him by contract or otherwise.\" This section provides that unless a bona fide possession aiid enjoyment of the property gifted is assumed immediately after the gitt by the donee and thenceforward retained to the entire exclusion of the donor' or of any benefit to him by contract or otherwise,. the said property wil! be deemed to have passed on the death of\n\nthe donor.\n\nIn other words the section has two parts viz. ( 1) the donee must bona-fide liave assumed possession and enjoyment of the property which is the subject matter of the gift to the exclusion of the donor immediately upon the gift and (2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benfit to him by contract or otherwise. Both these conditions are cumulative. Unless each ol. these conditions is satisfied the property would be liable to estate duty under section 10 of the Act-see the decision of this Court in George Da Costa v. Controller of Estate Duty Mysore(1).\n\nTherein the scope of s. fO came up for consideration. Speaking for the Court this is what Ramaswami J. observed in that case :\n\n\"A gift of itnmovae property under s. 10 will. however, be dutiable unless the donee assumes imme-. -diately exclusive and bona fide possession and enjoyment 1lf the subject-matter of the gift and there is no beneficial interest reserved to the donor by contract or otherwise. The section must be grammatically construed as follows: \"Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the doriee immediately upon the gift, and of which property bonafide possession and enjoymei:it shaU not have been thenceforward retained by the :lonee to the entire exclusion of the donor from such possession and enjoyment, or of any benefit to him, by contract or otherwise\". The crux of the section lies in two parts: (1) the donee must bona fide have assumed possession and enjoyment of the , property, which is the subject matter of the .ift, to the exclusion o.f the donor, immediately upon the gift, and\n\n(2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him, by contract or otherwise As a matter of construction we are of opinion that both these conditions are cumulative. Unless each of these conditions is satisfied. the property would be liable to estate duty under s. 10 of the Act\".\n\nProceeding further the learned judge observed :\n\n\"The second part of the section has two limbs: the deceased must be entirely excluded, (i) from the pro- perty, and (ii) from any benefit by contract or otherwise.\n\nIt was argued for the appellant that the expression \"by contract or otherwise\" should lie construed\n\n(I) SJ T.T.R. 497.\n\nejusdem generis and reference was made to the decision of Hamilton J. in Attorney General v. Seccombe (1911 )2, K. B. 688. On this aspect of the case, we think that the argument of the appellant is justified. In the context of the section, the word \"otherwise\" should in our opinion, be construed ejusdem _ generis and it must be interpreted to mean some kind of le.gal obligation or some transaction enforceable at Jaw or in equity which, though not in the form of a contract, may confer a benefit on the donor.\n\nIt was contended on behalf of the assessee that the expression \"of any benefit to him by contract or otherwise\" in s. 10 must be in the property settled and not a benefit arising from the ttansac--\n\ntion resuHing in the gift. To put it differently 'the assessee's contention was that the benefit biy contraot or otherwise must be re-- ferrable to the property gifted because all the earlier conditions stipulated in the section refer to the_ property gifted. If it was otherwise, the Counsel for die assessee urged, s. 10 cannot be considered to have two parts as held in Da Costa's case (supra); but it must be held to have three pans viz. (1) that the donee must bona fide have assumed possession and enjoyment of the property which is the subject matter of the gift to the exclusion of the donor immediately upon the gift; (2) the donee must have retained such possession and enjoyment of the property to the en1ire exclusion of the donor and ( 3) the donor should not have retained any benefit to him by contract or otherwise under the gift. It was further urged that it is impermissible for the court to add the words \"under the gift\" after the words \"of any benefit to him by contract or otherwise\". On the other hand it was contended on behalf of the Revenue that if the donor is entitled to any benefit under the gift, whether the same is charged on the properties settled or not, the properties gifted must be deemed to have passed on his death. The main part of s. 10 is not happily worded. It is difficult to find out the true effect of the expression \"of any benefit to him by contract or otherwise\". Do these words mean any benefit under the gift ? If that was so, the legislature should have said so. There was no difficulty in saying so. If a taxing provision is ambiguous and is reasonably capable of more than one interpretation, that interpretation which is beneficial to the sutect must be adopted. This is a well accepted rule of construction. It is impermissible for the. court to read into a taxing provision any words which are not there or exclude words which are there.\n\nThe words found in the provision must be given their natural meaning. In Da Costa's case, this Court opined that there are only two parts to the section. We have set out those parts earlier. The contention of the Revenue runs counter to the reasoning adopted in Da Costa's case. The contention advanced on be-\n\n'; UPREME COURT REPORTS\n\n[J 973] 3 S.C.R.\n\nhalf of the assessee finds support from some of the observatbns found in Da Costd s case.\n\nThe provisions for annual payments and maintenance made in the deeds as seen earlier are not charged on the properties se'ttled.\n\nHence the deceased cannot be said to have retained any interest in the properties settled. Therefore it cannot be said that he re'tained any benefit either jn the properties settled or in respect of their possession.\n\nHence in our opinion the facts of case (', J not come within the scope of s. 10.\n\nWe, accordingly, allow the appeal of the assessee and hold that the value oi the properties gifted or any part thereof is not liable to be included in computing the value of the estate that passed on the death of the deceased. In this :view, it is not necessary for us to consider the meaning of the word\n\nextent\" found in s. 10. The decision of the Andhra Pradesh High Court in Mohammad Bhai and Anr. v. Controller of Estate Duty, Andhra Pradesh(1) rendered by one of us (Reddy J.) does not bear on the question of law that we have decided.\n\nIn the result we allow the appeal of the assessee (Civil Appeal No. 474 of 1973), vacate the answer given by the High Court and answer the question referred by the Tribunal in the affirmative and in favour of the assessee.\n\nThe appeal of the Revenue (Civil Appeal No. 1770 of 1970) is dismissed. The Revenue shall pay the costs of the assessee-one hj:arlng fee.\n\nG.C C. A. No. 474 of 1973 allowed.\n\nC.A. No. 1770 of 1970 dismissed.", "total_entities": 54, "entities": [{"text": "COLLECTOR OF ESTATE DUTY", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR OF ESTATE DUTY", "offset_not_found": false}}, {"text": "MIS R. KANAKASABAI AND ORS.", "label": "RESPONDENT", "start_char": 26, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "M/S R. KANAKASABAI AND ORS", "offset_not_found": false}}, {"text": "1973 (K. S. HEGDE", "label": "JUDGE", "start_char": 65, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "KHANNA, JJ.", "label": "JUDGE", "start_char": 115, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Estaie Duty Act, 1953", "label": "STATUTE", "start_char": 129, "end_char": 150, "source": "regex", "metadata": {}}, {"text": "ss. 10 and 12", "label": "PROVISION", "start_char": 151, "end_char": 164, "source": "regex", "metadata": {"linked_statute_text": "Estaie Duty Act, 1953", "statute": "Estaie Duty Act, 1953"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 696, "end_char": 701, "source": "regex", "metadata": {"linked_statute_text": "Estaie Duty Act, 1953", "statute": "Estaie Duty Act, 1953"}}, {"text": "Estate Duty Act 1953", "label": "STATUTE", "start_char": 709, "end_char": 729, "source": "regex", "metadata": {}}, {"text": "s. 12", "label": "PROVISION", "start_char": 1260, "end_char": 1265, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act 1953", "statute": "the Estate Duty Act 1953"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2340, "end_char": 2345, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 2894, "end_char": 2902, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 3512, "end_char": 3517, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4408, "end_char": 4425, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated April 9, 1969 of the Madras High Court in Tax Case No."}}, {"text": "N. D. Karkh", "label": "OTHER_PERSON", "start_char": 4480, "end_char": 4491, "source": "ner", "metadata": {"in_sentence": "N. D. Karkh;, is, S. P. 'Nayar and R. N. Sachthey, for the appellant (in C.A. No."}}, {"text": "S. P. 'Nayar", "label": "OTHER_PERSON", "start_char": 4498, "end_char": 4510, "source": "ner", "metadata": {"in_sentence": "N. D. Karkh;, is, S. P. 'Nayar and R. N. Sachthey, for the appellant (in C.A. No."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 4515, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "N. D. Karkh;, is, S. P. 'Nayar and R. N. Sachthey, for the appellant (in C.A. No."}}, {"text": "M. C. Setalvad", "label": "OTHER_PERSON", "start_char": 4609, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, K. Srinivasan and T. A. Ramachandran, for respondents (in C.A. No."}}, {"text": "K. Srinivasan", "label": "OTHER_PERSON", "start_char": 4625, "end_char": 4638, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, K. Srinivasan and T. A. Ramachandran, for respondents (in C.A. No."}}, {"text": "T. A. Ramachandran", "label": "OTHER_PERSON", "start_char": 4643, "end_char": 4661, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, K. Srinivasan and T. A. Ramachandran, for respondents (in C.A. No."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 4783, "end_char": 4788, "source": "ner", "metadata": {"in_sentence": "The Judgement of the Court was delivered by HEGDE, J. Both these appeals, by special leave arise from the judgment of the High Court of Madras in a Reference under s. 64(1) of the Estate Duty Act, 1953 (to be hereinafter referred to as the Act)."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 4861, "end_char": 4881, "source": "ner", "metadata": {"in_sentence": "The Judgement of the Court was delivered by HEGDE, J. Both these appeals, by special leave arise from the judgment of the High Court of Madras in a Reference under s. 64(1) of the Estate Duty Act, 1953 (to be hereinafter referred to as the Act)."}}, {"text": "s. 64(1)", "label": "PROVISION", "start_char": 4903, "end_char": 4911, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 4919, "end_char": 4940, "source": "regex", "metadata": {}}, {"text": "26th June, 1951", "label": "DATE", "start_char": 5186, "end_char": 5201, "source": "ner", "metadata": {"in_sentence": "The question of law referred in that case is :\n\n\"Wllether, on the facts and in the circumstances of the case, the properties settled It' the deceased by the six deeds of settlement (two of them dated 26th June, 1951 and four of them dated 30th June 1951) valued at Rs."}}, {"text": "30th June 1951", "label": "DATE", "start_char": 5225, "end_char": 5239, "source": "ner", "metadata": {"in_sentence": "The question of law referred in that case is :\n\n\"Wllether, on the facts and in the circumstances of the case, the properties settled It' the deceased by the six deeds of settlement (two of them dated 26th June, 1951 and four of them dated 30th June 1951) valued at Rs."}}, {"text": "Ratnasabapathy Pillai", "label": "OTHER_PERSON", "start_char": 6149, "end_char": 6170, "source": "ner", "metadata": {"in_sentence": "The facts oi the case material for the purpose of deciding the question of law formulated above as could be gathered from the case stated are as follows :\n\nOne Ratnasabapathy Pillai was the owner of the properties with which we are concemed in this case."}}, {"text": "February 5, 1959", "label": "DATE", "start_char": 6255, "end_char": 6271, "source": "ner", "metadata": {"in_sentence": "He died on February 5, 1959 leaving btehind him his four sons, some grandsons, wife and daughter who are the accountable persons."}}, {"text": "Madras", "label": "GPE", "start_char": 6496, "end_char": 6502, "source": "ner", "metadata": {"in_sentence": "They furnished an account oi the properties passing on the death of the deceased to the Deputy Controller of Estate Duty, Madras who was the assessing authority."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8336, "end_char": 8341, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Board of Direct Taxes, New Delhi", "label": "ORG", "start_char": 8551, "end_char": 8591, "source": "ner", "metadata": {"in_sentence": "The accountable persons appealed to the Central Board of Direct Taxes, New Delhi."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8877, "end_char": 8882, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 9494, "end_char": 9499, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 9753, "end_char": 9758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 9855, "end_char": 9860, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 10721, "end_char": 10726, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 10 and 12", "label": "PROVISION", "start_char": 10813, "end_char": 10826, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 11646, "end_char": 11651, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 12358, "end_char": 12363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 12441, "end_char": 12449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 12960, "end_char": 12965, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 13057, "end_char": 13062, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 14430, "end_char": 14440, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 14633, "end_char": 14642, "source": "ner", "metadata": {"in_sentence": "Speaking for the Court this is what Ramaswami J. observed in that case :\n\n\"A gift of itnmovae property under s. 10 will."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 14706, "end_char": 14711, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 15999, "end_char": 16004, "source": "regex", "metadata": {"statute": null}}, {"text": "Hamilton", "label": "JUDGE", "start_char": 16412, "end_char": 16420, "source": "ner", "metadata": {"in_sentence": "ejusdem generis and reference was made to the decision of Hamilton J. in Attorney General v. Seccombe (1911 )2, K. B. 688."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 16983, "end_char": 16988, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17384, "end_char": 17389, "source": "regex", "metadata": {"statute": null}}, {"text": "Da Costa", "label": "OTHER_PERSON", "start_char": 17440, "end_char": 17448, "source": "ner", "metadata": {"in_sentence": "If it was otherwise, the Counsel for die assessee urged, s. 10 cannot be considered to have two parts as held in Da Costa's case (supra); but it must be held to have three pans viz. ("}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18340, "end_char": 18345, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 19831, "end_char": 19836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 20162, "end_char": 20167, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 20189, "end_char": 20214, "source": "ner", "metadata": {"in_sentence": "The decision of the Andhra Pradesh High Court in Mohammad Bhai and Anr."}}, {"text": "Reddy", "label": "JUDGE", "start_char": 20312, "end_char": 20317, "source": "ner", "metadata": {"in_sentence": "v. Controller of Estate Duty, Andhra Pradesh(1) rendered by one of us (Reddy J.) does not bear on the question of law that we have decided."}}]}
{"document_id": "1973_3_755_761_EN", "year": 1973, "text": "STATE OF ANDHRA PRADESH\n\nNARAYANA VELUR BEEDI MANUFACTURING FACTORY\n\n& OTHERS March 26, 1973\n\n[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.1\n\nMinimum Wages Act, 1948, s. 9-'Independent persons'-[/ include Government officials.\n\nThe appellant-Government passed an order revising inimum wages in the Bidi industry. It was based on the recommendat10n of a Committee of six members consisting df persons representing employers and employees \"!'d the Chief I~r and Deputy Chief Insptor of Factories.\n\nSection 9 of the Mm1mum Wages Act, 1948, rcqu1res that the Committee shall consist of an equal number of repiesentati\\'es of the employer and the employees and of Independent persons not exceeding one third of its total number. On the question whether the two Government officials could be regarded as independent persons,\n\nHELD : The mere fact that they happened to be Government officials or Government servants will not divest them of the character of independent persons. [76Jq\n\nThe language <if s. 9 does not contain any indication that persons in tile employment of the Government would be excluded from the category of 'independent persons'. These words have essentially been employed in contradistinction to representatives of employers and employees. In other words, apart from the representatives of employers and employees there should be persons who should be independent of them. [760G-HJ\n\nFurther, the presence of high government officials, who may have actual working knowledge about the problems of employers and employees can afford a good deal of guidance and assistance in formulating the advice which is to be tendered. It may be that in .certain circumstances .such persons may cease to have an independent character. iC!he quettion\n\nof fixation of mininium wages in an employment in which the appropiblte Government is directly interested, ari.es. . It would therefore depend upon the facts <if each particular case whether the penons who have been appointed could be regarded as independent or not. It is not correct to say that a Government official will have a bias onhat he may favour the policy which the appropriate Government may be inclined to adopt, because, when he is a member of an Advisory \"Committee he is expected-to give an impartial and independent advice and not merely carry out what e Government may be incHncd to do.\n\nGovernment . officials are responsible persons and are capable of takin~. a detached and impartial vie\\\\',\n\n[760H; 761A-E) Jaswan.t Ra! Beri & Others v. State of Punjab & another,\n\nA.LR. 1958 Pun). 425, D. M. S, Rao & Others v. The State of Kera/a & A\"'?ther, A.LR. 1963 Kerala 115, Bengal Motion Pictures Employees Unwn, C<icutta v. Kohinoor .Pictures Private Ltd. & Ors. A.LR. 1964 Cal. 619, .Ramkrlshna Ramnath Nagpu' & Another v.\n\nThe State of Maharasht; a & Anorber, A.LR. 1964 Born. 51, Chandrabhave Boarding and Lodging & Others v. Stcte of Mysore, A.LR. 1968 Mys. 156 and P. Gangadharan Pillai v. State of Kera/a & Others A.LR. 1968 Kerala 218, approved. '\n\nNorotamdas Harjivandas v. P. V.\n\nGourikar, Inspector, Minimum Wages, A.LR. 1961 M.B. 182 a; nd Kohinoor Pictures (Private) Ltd. v.\n\nState of West Bengal & Others, (1961] 2 L.L.J. 741, over ruled.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1659 to 1662 of 1967.\n\nAppeals by certificate from the judgment and order dated January 31, 1964 of the Andhra Pradesh High Court at Hyderabad in Writ Petition Nos. 337 /63, 746/62, 735/62 and 807 /62, respectively.\n\nP. Ram Reddy and A. V. V. Nair, for the appellant.\n\nM. C. Chagla, H. K. Puri and 'Niranjana Shah, for the respondents (in C. A. No. 1659) respondents 1 to 10, 12 to 14, 16 and 19 to 29 (in C.A. No. 1660), Respondent No. 1 (in C.A. No.\n\n1661) and Respondents Nos. 1 to 5 (in C.A. No. 1662).\n\nThe Judgment of the Court was delivered by\n\nGROVER, J .-The sole question which has to be decided in these appeals by certificate from a judgment of the Andhra Pradesh High Court is the meaning of the word \"independent\" in s. 9 of the Minimum Wages Act, 1948, hereinafter called the \"Act\".\n\nThe Act was enacted to provide for fixing the minimum rates of wages in certain employments. Section 2 gives the definition of various expressions. Clauses (e) (h) and (i) give the meaning of the words \"employer\", \"wages'' and \"employee\" respectively.\n\nSection 3 provides for fixing of the minimum rates of wages by the appropriate government and their review at certain intervals.\n\nSection 5 gives the procedure for fixing and revising minimum wage<s. Section 5 reads :- s. 5 ( 1 ) \"In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate government shall either- ( a) appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or ·\n\n(b) . by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date not less than two months from the date of the notification, on which the proposals will be taken into consideration.\n\n( 2) After considering the advice of the committee or committees appointed under clause (a) of sub-section\n\n( 1) or as the case may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come\n\ninto force on the expiry of three months from the date of its issue : Provided .......................... \" Section 9 relates to composition of committees etc. and is in these terms:\n\nS.9. \"Each of the committees, sub-committees and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate Government.\" The Government Order which was challenged related to the revision of minimum wages in the Bidi industry. It was based on the recommendation of a committee consisting of six m'nbers •. two of whom were Chief Inspector of Factories, Hyderabad, and Deputy Chief Inspector of Factories, Hyderabad; the former being the Chairman. These two officers were to be on the committees from among the category of independent persons mentioned in s. 9. The whole controversy has centered on the question whether the aforesaid two officers could be regarded as independent persons. There are a number of decisions of the High Courts. In majority of them, namely, Jaswant Rai Beri & Others v. State of Punjab & Another;('') D. M. S. Rao & Others v. The State of Kera/a & Another,(') Bengal Motion Pictures Employees Union, Calcutta v. Kohinqor Pictures Private Ltd. & Others;(') Ramkrishna Ramnath Nagpur & Another v. The State of Maharashtra & Another;(') Chandrabhava Boarding & Lodging and Others v.\n\nState of Mysore(') and P. Gangadharan Pillai v. State of Kera/a & Others, (6 ) it has been held that the mere fact that a person happens to be i government servant or that he is an officer, he does not cease to be an independent person within the meaning of s. 9. The only two decisions in which a contrary view has been taken are Narottamdas Harjivandas v. P. V. Gowarikar, Inspector,\n\n(l) A.1.R. 1958 Punj. 425.\n\n(3) A.LR. 1964 Cal. 519.\n\n(5) A.l.R. 1968 Mys. 156. 16-L761Sup.C.l. /73\n\n(2) A.LR. 1963 Kerala 115.\n\n(4) A.LR. 1964 Bom. 51.\n\n(6) A.l.R. 1968 Kerala 218.\n\nMinimum Wages(') and Kohinoor Pictures (Private) Ltd. v.\n\nState of West Bengal & Others;(') the latter is a judgment of the learned single Judge of the Calcutta High Court. It may be mentioned. that in the judgment under appeal the Andhra Pradesh High Court has also taken the same view as the Madhya Pradesh court.\n\n~.1e reasoning of Bishan Narain J .. in the l'unjab case is quite simple. The leai:ned Judge considered that in the context of s. 9 an independent person means a person who is neither an employer nor an employee in the employment for which minimum wages are to be fixed, The presence of independent persons is necessary to safeguard the interests of those whose requirements are met by the trade concerned. In a welfare State, according to him, it is the business of the Government to create conditions wherein private employers can carry on their trade profitably as long as the workmen are not exploited. In such circumstances the appointment of a Labour Commissioner, who is conversant with the employment conditions, cannot be objected to on the ground that he was not an independent -person. In the first Kera la case C. A.\n\nVaidialingam J .. as he then was, gave some additional reasons for supporting the view of Bishan-Narain J. He referred to s. 2(i) of the Industrial Disputes Act 194 7 for illustrating that a person shall be deemed to be independent for the nurnose of his anl'ointment as Chairman or other members of a Board. Court or Tribunal if he was unconnected with the industrial dispute referred to such Board, Court or Tribunal or with any industry directly effected by such dispute. This is what the learned Judge observed with reference to the provisions of s. 9 :\n\n\"When it speaks of persons to be nominated by the Government to the committee representing employers and employees in the scheduled employments and also of nominating an \"independent person\", in my view, the object of the enactment is that the \"independent person\" should be who has nothing to do with the employers or employees in the scheduled employment in question.\n\nIt may that under particular circumstances, when an industry, in which the State Government as an employer may also be vitally interested and in which case it can be considered to be an employer, it may not be proper to nominate an official to the committee treating him as an independent member\".\n\nA division bench of the Calcutta High Court consisting of Bose C. J. and G. K. Mitter J .. as he then was, in Bengal Motion Pictures Employees Union v. Kohinoor Pictures P. Ltd.(\") referred\n\n(t) A.T.R. 1961 M.P. IR2.\n\n(2) 1961 2 LL.I. 741.\n\n(3) A.1.R. 1964 Cal. 519.\n\nto the legislative policy underlying the enactment of the Act. What is aimed at is the statutory fixatiOn of minimum wages with a view to obviating the chances of exploitation of labour. Such being the main object it was natural to expect that the Government would seek the assistance of persons who were well conversant with the conditions of labour, industrial competition, profits from the industry and various other relevant factors which are to be considered in fixing the minimum wages. It could hardly . be doubted tbat persons like the Labour Commissibner or the Deputy Labour Commissioner are most suitable persons to be consulted for the purpose.\n\nThe other reason given in the Calcutta ase was similar to the one which prevailed with Bishan Narain J., -in the Punjab case. In the Bombay case the Division Bench referred to certain rules framed under s. 30 of the Act by the Government of Bombay. According to Rule 4 provision was made for terms of office of members of the Board and a distinction was made in subrules 2 and 3 between the non-official member and the official member of the Board. From the scheme of the rules it was inferred that even Government officials were contemplated tci fall within the category of \"independent persons\".\n\nIt is unnecessary to refer to the other decisions which favour the majority view.\n\nIn the Madhya.Pradesh case P. V. Dixit, C.J., delivering the judgment of the Bench said that the expression \"independent persons\" did not mean persons who were independent only of employers and employees in the scheduled employment and included officials. The ordinary connotation of the word \"independent person\", it was pointed out, is of a person who is not dependent on any body, authority or organisation and who is able to form his own opinion without any control or guidance of any outside agency.\n\nIt appears that in this case the learned Judges were infiuenced by the consideration that the State is actively interested in the wage earners and in the matter of fixation of minimum wages. That precluded Government officials from fall' ing within the class of independent persons provided for by s. 9.\n\nIn Kohinoor Pictures case(') a learned single judge while appreciating that the advisory committees constituted under 5 read with s. 9 of the Act have a purely advisory function, took the view that the appropriate Government in fixing the minimum rates of wages was not at all a disinterested person. He also took into consideration the interest which the Government may have in fixing the minimum waes. According to him the fixation of minimum wages is an operation compelling the employer to make a payment whether he wishes it or not and in most cases contrary to his\n\nwishe~. Three partie1 are involved in such compulsory fixation. namely, the Government, the employer and the employed. If\n\n--(I-) il9611 2 L.LT.741. -\n\nthe advisory committee is really to consist of independent persons they should be independent of all the three categories. A\n\nMr. Chagla for the respondents has relied a great deal on the dictionary meanings of the word \"independent\" as given fn Shorter Oxford English Dictionary. One of the principal meaning given is \"not depending upon the authority of another; not in position n of subordination; not subject to external control or rule\". Accord ing to Mr. Chagla a Government official cannot be regarded as independent because he is to depend upon the authority of the government and is in position of subordination and is subject to external control.\n\nIt has been strenuously urged that the whole object of having an advisory committee is to get an impartial c opinion or advice in the matter of fixing of miniinum wages. The committee has to consist of representatives of employers and the employees in the scheduled employment who have to be equal in number. The presence of independent persons not exceeding one third of the total number of members is necessary to ensure that a proper balance is maintained between the view of the representatives of the employers and the employees respectively. If a D government official and, in particular, one associated either with labour or factories in his official capacity is brought into the committee he is likely to be biased in his views for various reasons.\n\nHe may know the policy of the government or he may himself have participated in the formulation of that policy. He may have certain prediliction because of special knowledge obtained by him E while setving in a department which is connected with labour or industry. All these matters would divest him of the character of an independent person. ·\n\nIn our judgment the view which has prevailed with the majority of the High Courts must be sustained. The committee or the F advisory board can only tender advise which is not binding on the government while fixing the minimum wages or revising the same as the case may be. Of course the government is expected, partii cularly in the present democratic set up, to take that advice seriously into consideration and act on it but it is not bound to do so. The language of s. 9 does not contain any indication whatsoever that persons in the employment of the government would be G excluded from the category of independent persons. These words have essentially been employed in contradistiction to representatives of employers and employees. In other words, apart from the representatives of employers and employees there should be persons who should be independent of them. It does not follow that persons in the service or employ of the government were H meant to be excluded and they cannot be regarded as independent persons vis-a-vis the representatives of the employers and empleyees. Apart from this the presence of high government officials.\n\n'·\n\nwho may have actual working knowledge about the problems of employers and employees can afford a good deal of guidance and assistance in formulating the advice which is to be tendered under\n\n~. 9 to the appropriate government It may be that in certain circumstances such persons who are in the service of the government may cease to have an independent character if the question arises of fixation of minimum wages in a scheduled employment in which the appropriate government is directly interested.\n\nIt would, therefore, depend upon the facts of each particular case whether the persons who have been appointed from out of the class of independent pei:sons can be regarded as independent or not. But the mere fact that they happen to be government officials or government servants will not divest them of the character of independent persons. We are not impressed with the reasoning adopted that a government official will have a bias or that he may favour the policy which the appropriate government may be inclined to adopt because when he is a member of an advisory committee or board he is expected to give an impartial and independent advice and not merely carry out what the Government may be inclinded to do. Government officials are responsible persons and it cannot be said that they are not capable of taking a detached and impartial view_\n\n' For the reasons given above the appeals are allowed and the . judgment of the High Court is hereby set aside. As other matters E were left unecided in the writ petitions c;>ut of which these appeals have arisen the case shall go back to the High Court for disposal in accordance with Jaw. Costs shall abide the event.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 55, "entities": [{"text": "STATE OF ANDHRA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "NARAYANA VELUR BEEDI MANUFACTURING FACTORY\n\n& OTHERS", "label": "RESPONDENT", "start_char": 25, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "NARAYANA VELUR BEEDI MANUFACTURING FACTORY & OTHERS", "offset_not_found": false}}, {"text": "March 26, 1973", "label": "DATE", "start_char": 78, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "STATE OF ANDHRA PRADESH\n\nNARAYANA VELUR BEEDI MANUFACTURING FACTORY\n\n& OTHERS March 26, 1973\n\n[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.1\n\nMinimum Wages Act, 1948, s. 9-'Independent persons'-[/ include Government officials."}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 95, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER*", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 109, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "A. K. MUKHERJEA, JJ.", "label": "JUDGE", "start_char": 126, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "A.K. MUKHERJEA", "offset_not_found": false}}, {"text": "Minimum Wages Act, 1948", "label": "STATUTE", "start_char": 149, "end_char": 172, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9", "label": "PROVISION", "start_char": 174, "end_char": 178, "source": "regex", "metadata": {"linked_statute_text": "Minimum Wages Act, 1948", "statute": "Minimum Wages Act, 1948"}}, {"text": "Section 9", "label": "PROVISION", "start_char": 503, "end_char": 512, "source": "regex", "metadata": {"linked_statute_text": "Minimum Wages Act, 1948", "statute": "Minimum Wages Act, 1948"}}, {"text": "Wages Act, 1948", "label": "STATUTE", "start_char": 527, "end_char": 542, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 1003, "end_char": 1007, "source": "regex", "metadata": {"linked_statute_text": "Wages Act, 1948", "statute": "Wages Act, 1948"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3227, "end_char": 3255, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 3494, "end_char": 3506, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the appellant."}}, {"text": "A. V. V. Nair", "label": "LAWYER", "start_char": 3511, "end_char": 3524, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the appellant."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 3546, "end_char": 3558, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, H. K. Puri and 'Niranjana Shah, for the respondents (in C. A. No."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 3560, "end_char": 3570, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, H. K. Puri and 'Niranjana Shah, for the respondents (in C. A. No."}}, {"text": "Niranjana Shah", "label": "LAWYER", "start_char": 3576, "end_char": 3590, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, H. K. Puri and 'Niranjana Shah, for the respondents (in C. A. 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IR2."}}, {"text": "Calcutta", "label": "GPE", "start_char": 11182, "end_char": 11190, "source": "ner", "metadata": {"in_sentence": "The other reason given in the Calcutta ase was similar to the one which prevailed with Bishan Narain J., -in the Punjab case."}}, {"text": "Punjab", "label": "GPE", "start_char": 11265, "end_char": 11271, "source": "ner", "metadata": {"in_sentence": "The other reason given in the Calcutta ase was similar to the one which prevailed with Bishan Narain J., -in the Punjab case."}}, {"text": "Bombay", "label": "GPE", "start_char": 11285, "end_char": 11291, "source": "ner", "metadata": {"in_sentence": "In the Bombay case the Division Bench referred to certain rules framed under s. 30 of the Act by the Government of Bombay."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11355, "end_char": 11360, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 11379, "end_char": 11399, "source": "ner", "metadata": {"in_sentence": "In the Bombay case the Division Bench referred to certain rules framed under s. 30 of the Act by the Government of Bombay."}}, {"text": "Madhya.Pradesh", "label": "GPE", "start_char": 11841, "end_char": 11855, "source": "ner", "metadata": {"in_sentence": "In the Madhya."}}, {"text": "P. 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{"document_id": "1973_3_762_765_EN", "year": 1973, "text": "MANAGEMENT OF TOURNAMULLA ESTATE v.\n\nWORKMEN March 26, 1973\n\n[A. N. GROVER, S. N. DwlVEDI AND C. A. VAIDIAL!NGAM, JJ.1\n\nia.bour Law-Gratuity Sclienie-Wprkmen clisn1issed for 111isconduc1- Gratui1y whethtr can be forfeitecl.\n\nClause ( 4) of the Scheme of gratuitty applicable to the appellant Estate provided that a dispute regarding a claim for payment c!l gratuity of a workman who had been dismissed for misconduct shall be referred to the Labour Court for decision. One of workmen of the appellant was charge-sheeted in respect of riotous and disorderly behaviour for having assaulted a tea-maker inside the factory of the appellant. A departmental enquiry was held and being found guilty of mi.sconduct he was dismissed.\n\nAs a dispute arose about the payment of gratuity the matter was referred to the Labour Court. Before the Labour Court it was not disputed that the dismissal o'f the workman was on account of .misconduct consisting of riotous and disorderly behaviour and assaulting a tea.maker: The Labour Court, relying upon the decision of this Court in State of Punjab v. Sura; Prakash Kapur, [1962] 2 S.C.R. 711 decided the question in favour of the workman. Appeal by special leave, was filed in this Court. Allowing the appeal,\n\nHELD : According to the decision of this Court in the Delhi Cloth Mills case misconduct could be of three kinds, (I) technical misconduct which leaves no trial of indiscipline; (2) mis.conduct resulting in damage to the employer's property which might be compensated by forfei ture of gratuity or a part thereof, and ( 3) serious misconduct such a• acts of violence against the management or other employees or disorderly behaviour in or near the place of the employmen4 which though not directly causing damage is conJucive to. grave indiscipline.\n\nThe first should involve no forfeiture, the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct, and the third will entail forfeiture of the gratuity payable to the workman.\n\nIn other words, according to this deci5ion, if a workman is guilty of a serious misconduct of the third category, then his gratuity can be forfeited in its entirety. [7640]\n\nThe decision in the Delhi Cloth Mills as applicable to the facts af the present case and the appeal must accordingly be allowed.\n\n\nDtl/Ii Cloth & General Mi!ls Co. Ltd. v. Workmen and Others, etr:. [1969) 2 S.C.R. 307, referred to.\n\n(ii) The contention that the Labour Court did not apply its mind to the nature and degree c!f the misconduct committed and therefore the matter should be remitted to that court for decision iri accordance with\n\nJaw, could not be accepted because the facts were not in dispute before H the Labour Court. (7650]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 698 of 1968. '\n\nTOURNAMULLA ESTATE v. WORKMEN (Gro11er, J,) 763\n\nA Appeal by special leave from the Award dated August I 0. 1'967 of the Labour Court, (Kerala State), Quilon, Camp Dt Calicut, in Industrial Dispute No. 70 of 1965 published in the Kerala Govt. Gazette No. 39 dated 3-10-67.\n\nG. B. Pai, Bhuvanesh Kumari and O. C. Mathur, for the appe]. lant.\n\nB A. S. Nambiyar, for the resJ)Ondent.\n\nThe Judgment of the Court was delivered by\n\nGROVER, J.-This is an appeal by special leave from an award of th~ Labour Court, Quilon (Kerala State) The point before us is simple. The workman concerned was charge-sheeted in respect of riotous and disorderly behaviour for having assaulted a tea maker Shri U. M. Abdul Kadar on May 29, 1965, inside the factory. A departmental enquiry was held wherein, it is said, he was given every opportunity to fully participate. He was found guilty of misconduct by the domestic tribunal and was accordingly dismissed. There was a scheme of gratuity in force, which was and is not challenged by the respondent. Clause 4 of that scheme, which is called \"Terms of Agreement\", provides that if a dispute arises regarding. a laim for l'l':Y\n\nment of gratuity of a workman who has been d1sm1ssed for misconduct, such a dispute shall be referred to the labour court having jurisdiction, for decision. As a dispute arose with regard to the payment of gratuity, the matter was referred to the Labour court. Before that court, in the statement of case submitted by the Secretary of the Malabar Estate Workers' Union, it was stated in clause ( c) as follows :\n\n\"The worker was not paid gratuity on. dismissal, in spite of making a request for the same. There is a gratuity scheme applicable to this estate and p.s. per the terms of the scheme if a dispute arises regarding the payment of gratuity to a dismissed workman, the same is left open to be decided by this Court. The allegations of misconduct levelled against the worker in this case cannot be considered to be one which by its nature disentitles the worker_ to claim gratuity.\n\nEven if the allegation is true the same! does not involve any question of moral turpitude or cause any financial loss to the company. Any allegations of misconduct do not impose\n\n(sic) disentitle the workmen for gratuity. Hence in this particular case it is submitted that the worker is entitled for gratuity as claimed. The worker has put in 18 years of service and as such he is entitled to get at the rate of 15 days wages based on last draw wage rate for every completed years of service.\"\n\nSUPREME COURT REPORTS [l 973] 3 S.C.R.\n\nIn reply, which was filed by the management, the facts which have been set out above and the circumstances in which the dismissal was directed, were fully given.\n\nBefore the Labour court, there seems to have been no dispute whatsoever that the dismissal of the respondent workman was on account of misconduct consisting of behaving in a riotous and disorderly manner and having assaulted a tea maker (supervisor). . The Labour court, however, referred to the judgment of this Court in State of Punjab v. Suraj Parkash Kapur, etc.(') in which the general argument was not accepted that in all cases where services of an employee are tenninated for misconduct, gratuity should not be paid to him. However, this Coiirt has had occasion to considerilf detail the various circumstances in which gratuity \":would tfe\"liable to forfeiture for misconduct of a particular nature. It was laid down in t>elhi\n\nCloth & General Mills Co., Ltd., v. Workmen and Others, etc.(') that the object of Jiaving a gratuity scheme is to provide a retiring benefit to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer, and it is, therefore,. not correct to say . that no misconduct however grave, may not be visited with forfeiture of gratuity. Miseonduct could be of three kinds, ( 1) technical misconduct which 'leaves no trail of indiscipline,\n\n(2) misconduct resulting in damage t!> the employer's property which might be compensated by forfeiture of gratuity or part thereof, and ( 3) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment, which, though not direct}y causing damage, is conducive to grave indiscipline. The first should in volve no fol!feiture, the second may involve forfeiture of the amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third will entail forfeiture of gratuity due to the workman. In other words, according to this decision, if a workman is guilty of a , serious misconduct of the third category, then, his gratuity can be forfeited in its entirety.\n\nIn yet another case in Remington Rand of India Ltd. v. The Workmen,(') one of the questions was whether a provision can be made in a gratuity scheme that if the misconduct is a gross one, involving violence, riotous behaviour, etc., the qualifying period should be limited to fifteen years of continuous service. The earlier decision in Delhi Cloth and General Mills Ltd., was dis' . cussed and reference was made to it. The Court expressed agreement with the decision in the earlier case that matters which had impact on the discipline and the working of the concern, require a different treatment in the matter of forfeiture of gratuity. It is\n\n\nTOURNAMULLA ESTATE v. WORKMEN (Grover, J.) 765\n\nsignificant that ins. 4(6)(b) of the Payment of Gratuity Act, it has been provided as follows : .\n\n\"the gratuity payable to an employee shall be wholly forfeited-( i) if the services of such employee have been terminated for his riotous or disorderly .conduct or any other act of violence on his part, . . . . \" Although the provisions of this statute would not g0vern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi C/Oth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature .mentioned above, has been incorporated in the statute itself. Even otherwise,. such a rule is conducive to industrial hannony and is in consonance with public policy. ·\n\nLearned counsel for the respondents has not been able to show how the rule laid down in the Delhi Cloth Mills case would not be applicable if the concerned workman was guilty of the kind of D misconduct mentioned above. His sole contention has been that the Labour court did not apply its mind to the nature and degree of the disconduct committed, and, therefore, the matter should be i-ernitted to that court for a decision in accordance. with law. In our opinion, it is not necessary to send the matter to the labour court, because the .facts were no_t in dispute before it.\n\nE For the reasons given above, the appeal is allowed and the award of the Labour Court is set aside. Jt is hereby declared that the concerned workman will not be. entitled to .the gratuity earned by him. The respondents will be entitled to costs in view of the order already made by this Court on February 1, 1968. ·\n\nG.C.\n\nAppeal allowed.", "total_entities": 21, "entities": [{"text": "MANAGEMENT OF TOURNAMULLA ESTATE", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "MANAGEMENT OF TOURNAMULLA ESTATE", "offset_not_found": false}}, {"text": "WORKMEN", "label": "RESPONDENT", "start_char": 37, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "WORKMEN", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 62, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Prakash Kapur", "label": "OTHER_PERSON", "start_char": 1090, "end_char": 1103, "source": "ner", "metadata": {"in_sentence": "Before the Labour Court it was not disputed that the dismissal o'f the workman was on account of .misconduct consisting of riotous and disorderly behaviour and assaulting a tea.maker: The Labour Court, relying upon the decision of this Court in State of Punjab v. Sura; Prakash Kapur, [1962] 2 S.C.R. 711 decided the question in favour of the workman."}}, {"text": "[1962] 2 S.C.R. 711", "label": "CASE_CITATION", "start_char": 1105, "end_char": 1124, "source": "regex", "metadata": {}}, {"text": "Delhi Cloth Mills", "label": "ORG", "start_char": 1298, "end_char": 1315, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal,\n\nHELD : According to the decision of this Court in the Delhi Cloth Mills case misconduct could be of three kinds, (I) technical misconduct which leaves no trial of indiscipline; (2) mis.conduct resulting in damage to the employer's property which might be compensated by forfei ture of gratuity or a part thereof, and ( 3) serious misconduct such a• acts of violence against the management or other employees or disorderly behaviour in or near the place of the employmen4 which though not directly causing damage is conJucive to."}}, {"text": "[1969) 2 S.C.R. 307", "label": "CASE_CITATION", "start_char": 2417, "end_char": 2436, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2763, "end_char": 2791, "source": "ner", "metadata": {"in_sentence": "7650]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "3-10-67", "label": "DATE", "start_char": 3091, "end_char": 3098, "source": "ner", "metadata": {"in_sentence": "39 dated 3-10-67."}}, {"text": "G. B. Pai", "label": "OTHER_PERSON", "start_char": 3101, "end_char": 3110, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Bhuvanesh Kumari and O. C. Mathur, for the appe]."}}, {"text": "Bhuvanesh Kumari", "label": "OTHER_PERSON", "start_char": 3112, "end_char": 3128, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Bhuvanesh Kumari and O. C. Mathur, for the appe]."}}, {"text": "O. C. Mathur", "label": "OTHER_PERSON", "start_char": 3133, "end_char": 3145, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Bhuvanesh Kumari and O. C. Mathur, for the appe]."}}, {"text": "B A. S. Nambiyar", "label": "OTHER_PERSON", "start_char": 3169, "end_char": 3185, "source": "ner", "metadata": {"in_sentence": "B A. S. Nambiyar, for the resJ)Ondent."}}, {"text": "GROVER", "label": "JUDGE", "start_char": 3253, "end_char": 3259, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGROVER, J.-This is an appeal by special leave from an award of th~ Labour Court, Quilon (Kerala State) The point before us is simple."}}, {"text": "U. M. Abdul Kadar", "label": "OTHER_PERSON", "start_char": 3513, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "The workman concerned was charge-sheeted in respect of riotous and disorderly behaviour for having assaulted a tea maker Shri U. M. Abdul Kadar on May 29, 1965, inside the factory."}}, {"text": "May 29, 1965", "label": "DATE", "start_char": 3534, "end_char": 3546, "source": "ner", "metadata": {"in_sentence": "The workman concerned was charge-sheeted in respect of riotous and disorderly behaviour for having assaulted a tea maker Shri U. M. Abdul Kadar on May 29, 1965, inside the factory."}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 3856, "end_char": 3864, "source": "regex", "metadata": {"statute": null}}, {"text": "Malabar Estate Workers' Union", "label": "ORG", "start_char": 4322, "end_char": 4351, "source": "ner", "metadata": {"in_sentence": "Before that court, in the statement of case submitted by the Secretary of the Malabar Estate Workers' Union, it was stated in clause ( c) as follows :\n\n\"The worker was not paid gratuity on."}}, {"text": "Delhi Cloth and General Mills Ltd.", "label": "ORG", "start_char": 7940, "end_char": 7974, "source": "ner", "metadata": {"in_sentence": "The earlier decision in Delhi Cloth and General Mills Ltd., was dis' ."}}, {"text": "Payment of Gratuity Act", "label": "STATUTE", "start_char": 8336, "end_char": 8359, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 1, 1968", "label": "DATE", "start_char": 9965, "end_char": 9981, "source": "ner", "metadata": {"in_sentence": "The respondents will be entitled to costs in view of the order already made by this Court on February 1, 1968. ·"}}]}
{"document_id": "1973_3_766_769_EN", "year": 1973, "text": "FATIMA BI & ANR. v.\n\nDEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY.\n\nNEW DELHI March 27, 1973\n\n[A. N. RAY, D. G. PALEKAR AND M. H. BEG, JJ.]\n\nAd111inistra1iorl of Evacuee Property Act, 1950, Sections 2(b), 2(c), 6(2), 7A. 27 and 28-0rder of Assistant Cust.odian declaring appellant 11on-evact1e<·-Rel'1°sion of order by Dy. Custodian General on ground of fraud and illea/it}'-Ortler.r ,\\ought to be revised whetler final under Section 28-Fresh Proceedi11J(s whether barred under section 1A or under Section 21-0rder of Dy.\n\nCustodic .. n General held valiJly 1nade- Ccrtiorari wi!I not lie.\n\nThe first appellant (the wife of the second appellant) alleged that she \\Vas the owner of certain property at Delhi.\n\nBy an ex .. parte order LlatcJ 25-11~1953, th!! Asstt. Custodian declared her as an evacuee and her property to be evacuee property.\n\nOn appea1, the ex .. parte order was set aside and the Asstt. Custodian was directed to decide on merits the appellant's case.\n\nBy an order dated I J.1-1956 the Asst!. Custodian held that the first appellant was non-evacuee owner of the property.\n\nOn 29-4-1964, a notice u/s. 27 of the Act was issued to the first appellant to 'sho\\v cause \\vhy the order dated ll-1·56 should not be revised. The grounds for the notice were (i) that the first appellant .had left for Pakistan in 1947, and it was fraudulently averred that she was a non--evacuee and was residing at Calcutta with the second appellant; and (ii) that in order to establish the first appellant's non-ev.acuee status, as well as to secure the release of the property, forged documents and perjured evidence were tendered before the Asstt. Custodian.\n\nThe first appellant applied for cancellatiort of the show cause notice.\n\nOn t-2-1965, the Dy. Custodian General rejected the objections of the first appellant and authorised\n\nth~ Dy. Custodian to expedite recording of evidence and submiion of report.\n\nThe appellant filed .a \\Vrit petition in the High Court for quashing the two orders dated 29-4-1964 and 1-2-1965 contending (i) that the order dated ll 1-56 had become final by virtue of Sec. 28 of the Act and it could not be re-opened; (ii) that fresh proceedings were barred under section 7A of the Act; and (iii) that the proc;!Cdings u/s. 27 of the Act v.'cre barred by limitation. The High Court rejected these contentions n.rrd dismissed the writ petition.\n\nOn appeal by special leave to this Court, dismissing the appeal.\n\nHELD: (i) The order dated 11-1·56 was not final and it could be re-opened. The power. of revision u/s. 27 was not taken away by s. 2s of the Act.\n\n[768E]\n\n(ii) Sec. 7 A of the Act did not constitute a bar to the issue of notice u/s. 27. The bar in Sec. 7A is that no property shall be declared to be cvac?ee property n or afte~ 7-5-54. The proviso to Sec. ,7A is that not!'mg contaied m the secon shall apply to any property in respect of which proceedJJlgs are pending on 7-5-54.\n\nWhen the •xparle order\n\nlated 25-11-53 was set aside. the High Court held that. the proceedings m respect of the P.roperty were pending on 7-5-54 and that is how an order was passed on 11-1-56 in. favour of the first appellant.\n\n[768F-GJ\n\n(iii) The power u/s. 27 of the Act is not curtailed by any limitation of time. l768G-H]\n\n(iv) The order dated 29-4-1964 was validly made by the Custodian General.\n\nThe relevant authorities have power to call for the record of any proceedings in which any Custodian has passed an order for the purposes of s9tisfying as to the legality or propriety of such an order. Sine.: the order has n questioned by the authorities on the $f0Und tht the. first appellant obtained the order fau<lulently, _and fraud 1s a qesuon ol fact it is open to the first appellant to establish that she obta1ne<l the\n\nordr properly.\n\nCertiorari will not He as the authorities have jurisdiction to issue the notice. (7690-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1279 of 1970.\n\nAppeal by special leave from the judgment and order dated November 21, 1969 of the Delhi High Court at New Delhi, in L.P.A. No. 101-D/66.\n\nS. K. Mehta, A. N. Aurora, K. R. Nagaraja and M. Qamr11ddi11, for the appellants.\n\nP. Parameshwara Rao and S. P. Nayar for Respondent No.\n\nN. C. Sikri, for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nRAY, J.\n\nThis is an appeal by special leave against the judgment dated 21 November, 1969 of the Delhi High Court disinissing the writ petition of the appellants.\n\nThe appellants made an application under Article 226 of the Constitution in the Delhi High Court. The appellants asked for quashing two orders dated 29 April, 1964 and 1 February, 1965.\n\nOn 29 April, 1964 the Deputy Custodian General issued a notice to the appellant Fatima Bi to show cause why the order dated 11 January, 1956 should not be revised as the same was obtained by fraud and was illegal. The appellant Fatima Bi made am application for cancelling the notice requiring her to show cause.\n\nOn I February, 1965 the Deputy Custodian General passed arr order rejecting the objections of the appellant Fatima Bi. By thesd order dated 1 February, 1965 the authorised Deputy Custodian was asked to expedite recording of evidence and submissiorr of repoi:.t.\n\nThe appellant Fatima Bi. is the wife of the appellant Mohd.\n\nSayeed. The appellant Fatima Bi's case is that she is the owner of certain property at Delhi. By an ex-parte order dated 25 November, 1953 the Assistant Custodian declared her as evacuee\n\nan~ her property to be evacuee property. She filed an appeal agamst the ex-parte order.\n\nThe ex-parte order was set aside. The Assistant Custodian was required to decide on merits the appellant\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\nFatima }3i's case. By an order dated 11 Janul!ry, 1956 the A .Assistant Custodian held that the appellant Fatima Bi was a non- evacuee owner of the property. On ~9 April, 1964 a notice under section 27 of the Administration of evacuee Property Act, 1950 ·(hereinafter referred to as the Act) was issued to show cause why the order dated 11 January 1956 should not be revised. The gtounds for the notice were that the appellant Fatima Bi had left B for Pakistan in 1947, and it was fraudulently averred that she was a non-evacuee and was residing at Calcutta with the appellant Mohd. Sayeed. The other ground alleged in the notice was that in order to establish the appellant Fatima Bi's non-evacuee status as well as to secure the release .of the property forged documents and perjured evidence was tendered before the Ar.sistant Cus c todian.\n\nThe appellants raised three contentions in the High Court.\n\nFirst, that the order dated 11 January, 1956 had become final and could not be re-opened, by virtue of section 28 of the Act. ' Second, fresh proceedings were barred under section 7-A of the Act.\n\nThird, the proceedings under section 27 of the Act were D barred by limitation. . ..\n\nThe High Court held that the order dated 11 January, 1956 .\n\nWas not final and it could be re-opened. Section 28 ofthe Act was held by the High Court not to be a bar to the powers of revi- sion under section 27 of the Act. Section 28 makes orders final save as otherwise expressly provided in Chapter V. Sec.lions E '27 and 28 both occur in Chapter V. Therefore, the High Court rightly held that the power of revision under section 27 was not taken away by section 28 of the Act.\n\nThe High Court also held that section 7-A of the Act did not constitute a bar to the issue of notice. under section 27. The bar in section 7-A is that no property shall be declared to be evacuee l' property on or after 7 May, 1954. The proviso to section 7-A is that nothing contained in the section shall apply to any property in respect of which proceedings are pending on 7 May, 1954.\n\nWhen the ex-parte order dated 25 November, 1953 was set aside the High Court held that the proceedings ht respect of the property were pending on 7 May, 1954 and that is how an order was G passed on 11 January 1956 in favour of the appellant Fatima Bi.\n\nThe High Court also held that the notice under section 27 of the Act was issued several years after 11 January, 1956 order had been passed but the power under section 27 of the Act was not curtailed by any limitation of time.\n\nCounsel on behalf of the appellants repeated the contentions H which had been advanced in the High Court. The High Court rightly rejected the appellants' contentions.\n\nAn_additional contention .was advanced, viz., that the order dated 29 April, 1964 was not passed by the Cuodian General.\n\nThe Custodian General is defined in section 2(b) of the Act to mean the Custodian General of Evacuee Property in India appointed by the Central Government under section 5 of the Act.\n\nSection 2 ( c) defines 'Custodian' to mean the Custodian for the State and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed in that State. Section 6(2) of the Act states that subject to the provisions of the Act all Custodians, Additional, Deputy and Assistant Custodian of evacuee property shall discharge the duties imposed on them by or under this Act under the general superintendence and control of the Custodian, General. The order dated 29 April, 1964 was validly made for Custodian General.\n\nThe petition of the appellants was utterly misconceived. The relevant authorities have power to call for the record of any proceeding in which any Custodian has passed an order for the pur- D , pose of satisfying as to the legality or propriety of such order. In the present case the order h<\\S been questioned by the authorities on the ground that the appellant Fatima Bi obtained the order fraudulently.\n\nFraud is a question of fact.\n\nIt is open to the appellant Fatima Bi to establish that she obtained the order properlv, Certiorari will not lie for the ohlvious reason that the E authorities have jurisdiction to issue the notice. There is neither excess of jurisdiction nor usurpation.\n\nIt was said on behalf of the appellants that the order of 1956 was called in question in 1964. _Several years have passed. The relevant authorities will take steps to expedite the hearing In the matter.\n\nFor these reasons, the appeal is dismissed. Each party will pay and bear their own costs.\n\nSRW.\n\nAppeal dismissed,", "total_entities": 65, "entities": [{"text": "FATIMA BI & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "FATIMA BI & ANR", "offset_not_found": false}}, {"text": "DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY.\n\nNEW DELHI", "label": "RESPONDENT", "start_char": 21, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "DEPUTY CUSTODIAN GENERAL EVACUEE PROPERTY, NEW DELHI", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 92, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "D. G. PALEKAR", "label": "JUDGE", "start_char": 103, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "M. H. BEG, JJ.", "label": "JUDGE", "start_char": 121, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Evacuee Property Act, 1950", "label": "STATUTE", "start_char": 159, "end_char": 185, "source": "regex", "metadata": {}}, {"text": "Sections 2(b), 2(c), 6(2), 7A", "label": "PROVISION", "start_char": 187, "end_char": 216, "source": "regex", "metadata": {"linked_statute_text": "Evacuee Property Act, 1950", "statute": "Evacuee Property Act, 1950"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 423, "end_char": 433, "source": "regex", "metadata": {"linked_statute_text": "Evacuee Property Act, 1950", "statute": "Evacuee Property Act, 1950"}}, {"text": "section 1A", "label": "PROVISION", "start_char": 475, "end_char": 485, "source": "regex", "metadata": {"linked_statute_text": "Evacuee Property Act, 1950", "statute": "Evacuee Property Act, 1950"}}, {"text": "Section 21", "label": "PROVISION", "start_char": 495, "end_char": 505, "source": "regex", "metadata": {"linked_statute_text": "Evacuee Property Act, 1950", "statute": "Evacuee Property Act, 1950"}}, {"text": "29-4-1964", "label": "DATE", "start_char": 1091, "end_char": 1100, "source": "ner", "metadata": {"in_sentence": "On 29-4-1964, a notice u/s. 27 of the Act was issued to the first appellant to 'sho\\v cause \\vhy the order dated ll-1·56 should not be revised."}}, {"text": "s. 27", "label": "PROVISION", "start_char": 1113, "end_char": 1118, "source": "regex", "metadata": {"linked_statute_text": "Evacuee Property Act, 1950", "statute": "Evacuee Property Act, 1950"}}, {"text": "Pakistan", "label": "GPE", "start_char": 1307, "end_char": 1315, "source": "ner", "metadata": {"in_sentence": "The grounds for the notice were (i) that the first appellant .had left for Pakistan in 1947, and it was fraudulently averred that she was a non--evacuee and was residing at Calcutta with the second appellant; and (ii) that in order to establish the first appellant's non-ev.acuee status, as well as to secure the release of the property, forged documents and perjured evidence were tendered before the Asstt."}}, {"text": "Calcutta", "label": "GPE", "start_char": 1405, "end_char": 1413, "source": "ner", "metadata": {"in_sentence": "The grounds for the notice were (i) that the first appellant .had left for Pakistan in 1947, and it was fraudulently averred that she was a non--evacuee and was residing at Calcutta with the second appellant; and (ii) that in order to establish the first appellant's non-ev.acuee status, as well as to secure the release of the property, forged documents and perjured evidence were tendered before the Asstt."}}, {"text": "1-2-1965", "label": "DATE", "start_char": 2009, "end_char": 2017, "source": "ner", "metadata": {"in_sentence": "The appellant filed .a \\Vrit petition in the High Court for quashing the two orders dated 29-4-1964 and 1-2-1965 contending (i) that the order dated ll 1-56 had become final by virtue of Sec."}}, {"text": "Sec. 28", "label": "PROVISION", "start_char": 2092, "end_char": 2099, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7A", "label": "PROVISION", "start_char": 2188, "end_char": 2198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2245, "end_char": 2250, "source": "regex", "metadata": {"statute": null}}, {"text": "11-1·56", "label": "DATE", "start_char": 2461, "end_char": 2468, "source": "ner", "metadata": {"in_sentence": "HELD: (i) The order dated 11-1·56 was not final and it could be re-opened."}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2535, "end_char": 2540, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2563, "end_char": 2567, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7", "label": "PROVISION", "start_char": 2595, "end_char": 2601, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2665, "end_char": 2670, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7A", "label": "PROVISION", "start_char": 2683, "end_char": 2690, "source": "regex", "metadata": {"statute": null}}, {"text": "7-5-54", "label": "DATE", "start_char": 2763, "end_char": 2769, "source": "ner", "metadata": {"in_sentence": "7A is that no property shall be declared to be cvac?ee property n or afte~ 7-5-54."}}, {"text": "25-11-53", "label": "DATE", "start_char": 2947, "end_char": 2955, "source": "ner", "metadata": {"in_sentence": "When the •xparle order\n\nlated 25-11-53 was set aside."}}, {"text": "11-1-56", "label": "DATE", "start_char": 3102, "end_char": 3109, "source": "ner", "metadata": {"in_sentence": "the proceedings m respect of the P.roperty were pending on 7-5-54 and that is how an order was passed on 11-1-56 in."}}, {"text": "s. 27", "label": "PROVISION", "start_char": 3174, "end_char": 3179, "source": "regex", "metadata": {"statute": null}}, {"text": "s9", "label": "PROVISION", "start_char": 3461, "end_char": 3463, "source": "regex", "metadata": {"statute": null}}, {"text": "S. K. Mehta", "label": "OTHER_PERSON", "start_char": 4058, "end_char": 4069, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, A. N. Aurora, K. R. Nagaraja and M. Qamr11ddi11, for the appellants."}}, {"text": "A. N. Aurora", "label": "LAWYER", "start_char": 4071, "end_char": 4083, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, A. N. Aurora, K. R. Nagaraja and M. Qamr11ddi11, for the appellants."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 4085, "end_char": 4099, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, A. N. Aurora, K. R. Nagaraja and M. Qamr11ddi11, for the appellants."}}, {"text": "M. Qamr11ddi11", "label": "LAWYER", "start_char": 4104, "end_char": 4118, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, A. N. Aurora, K. R. Nagaraja and M. Qamr11ddi11, for the appellants."}}, {"text": "P. Parameshwara Rao", "label": "LAWYER", "start_char": 4141, "end_char": 4160, "source": "ner", "metadata": {"in_sentence": "P. Parameshwara Rao and S. P. Nayar for Respondent No."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4165, "end_char": 4176, "source": "ner", "metadata": {"in_sentence": "P. Parameshwara Rao and S. P. Nayar for Respondent No."}}, {"text": "N. C. Sikri", "label": "LAWYER", "start_char": 4197, "end_char": 4208, "source": "ner", "metadata": {"in_sentence": "N. C. Sikri, for Respondent No."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4277, "end_char": 4280, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, J.\n\nThis is an appeal by special leave against the judgment dated 21 November, 1969 of the Delhi High Court disinissing the writ petition of the appellants."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 4481, "end_char": 4492, "source": "regex", "metadata": {"statute": null}}, {"text": "Fatima Bi", "label": "PETITIONER", "start_char": 4707, "end_char": 4716, "source": "ner", "metadata": {"in_sentence": "On 29 April, 1964 the Deputy Custodian General issued a notice to the appellant Fatima Bi to show cause why the order dated 11 January, 1956 should not be revised as the same was obtained by fraud and was illegal.", "canonical_name": "FATIMA BI & ANR"}}, {"text": "Mohd.\n\nSayeed", "label": "LAWYER", "start_char": 5258, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "is the wife of the appellant Mohd.", "canonical_name": "Mohd.\n\nSayeed"}}, {"text": "SUPREME COURT REPORTS [1973] 3 s.c.R.\n\nFatima", "label": "COURT", "start_char": 5648, "end_char": 5693, "source": "ner", "metadata": {"in_sentence": "The Assistant Custodian was required to decide on merits the appellant\n\nSUPREME COURT REPORTS [1973] 3 s.c."}}, {"text": "section 27", "label": "PROVISION", "start_char": 5878, "end_char": 5888, "source": "regex", "metadata": {"statute": null}}, {"text": "Administration of evacuee Property Act, 1950", "label": "STATUTE", "start_char": 5896, "end_char": 5940, "source": "regex", "metadata": {}}, {"text": "Mohd. Sayeed", "label": "PETITIONER", "start_char": 6264, "end_char": 6276, "source": "ner", "metadata": {"in_sentence": "The gtounds for the notice were that the appellant Fatima Bi had left B for Pakistan in 1947, and it was fraudulently averred that she was a non-evacuee and was residing at Calcutta with the appellant Mohd.", "canonical_name": "Mohd.\n\nSayeed"}}, {"text": "11 January, 1956", "label": "DATE", "start_char": 6620, "end_char": 6636, "source": "ner", "metadata": {"in_sentence": "First, that the order dated 11 January, 1956 had become final and could not be re-opened, by virtue of section 28 of the Act. '"}}, {"text": "section 28", "label": "PROVISION", "start_char": 6695, "end_char": 6705, "source": "regex", "metadata": {"linked_statute_text": "the Administration of evacuee Property Act, 1950", "statute": "the Administration of evacuee Property Act, 1950"}}, {"text": "section 7", "label": "PROVISION", "start_char": 6764, "end_char": 6773, "source": "regex", "metadata": {"linked_statute_text": "the Administration of evacuee Property Act, 1950", "statute": "the Administration of evacuee Property Act, 1950"}}, {"text": "section 27", "label": "PROVISION", "start_char": 6818, "end_char": 6828, "source": "regex", "metadata": {"linked_statute_text": "the Administration of evacuee Property Act, 1950", "statute": "the Administration of evacuee Property Act, 1950"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 6977, "end_char": 6987, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 7075, "end_char": 7085, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 7098, "end_char": 7108, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 7299, "end_char": 7309, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 7332, "end_char": 7342, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 7386, "end_char": 7395, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 7464, "end_char": 7474, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 7487, "end_char": 7496, "source": "regex", "metadata": {"statute": null}}, {"text": "7 May, 1954", "label": "DATE", "start_char": 7575, "end_char": 7586, "source": "ner", "metadata": {"in_sentence": "The bar in section 7-A is that no property shall be declared to be evacuee l' property on or after 7 May, 1954."}}, {"text": "section 7", "label": "PROVISION", "start_char": 7603, "end_char": 7612, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 8046, "end_char": 8056, "source": "regex", "metadata": {"statute": null}}, {"text": "section 27", "label": "PROVISION", "start_char": 8158, "end_char": 8168, "source": "regex", "metadata": {"statute": null}}, {"text": "29 April, 1964", "label": "DATE", "start_char": 8461, "end_char": 8475, "source": "ner", "metadata": {"in_sentence": "that the order dated 29 April, 1964 was not passed by the Cuodian General."}}, {"text": "section 2(b)", "label": "PROVISION", "start_char": 8552, "end_char": 8564, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 8677, "end_char": 8686, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8700, "end_char": 8709, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(2)", "label": "PROVISION", "start_char": 8875, "end_char": 8887, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_770_776_EN", "year": 1973, "text": "STATE OF MYSORE & ANR. v.\n\nK. G. JAGANNATH March 27, 1973\n\n(A. ALAGIRISWAMI AND C. A. VAIDIALINGAM, JJ.]\n\n/'.lysore Motor Vehicle Rules, 1963, r. 116(1)-Power to fix 111i11i111t1n1 .seating capacity in a vublic service i:ehicle-lf valid.\n\nRule 216(2) of the Mysore Motor Vehicle Rules, 1963, provides for the fixation of minimum seating capacity of a public service vehicle.\n\nUnder a permit granted to hin1 the respondent was running a bus with a seating capacity of 30.\n\nHe wanted to rCplace the bus with a new one and applied for permission to alter t'he seating capacity of the new bus from 40 to 30, but, the permission was refused.\n\nIn a petition tor the issue of a Vr'rit of 111andamus, the High Court struck down the rule and directed the Regional Transport Officer to grant the necessary permission.\n\nAllowing the appeal to this Court, HELD: (i) The power conferred by s. 70 of the Act is wide enough to enable the making of the impugned rule.\n\nThe validity of the rule has to be considered not merely from the . poi:nt of view of the effect it ha.5 on the particular individual like the respondent but from the point of .view of the generality of the motor vehicle operators as welt as the public.\n\nThere is no reason for not accepting the statement made on behalf of the State that passenger traffic on every route in the State had increased considerably, that generally it was found that stage carriage operators were carrying passengers in excess o'f the seating capacity specified in the registration certificate and the permit to the seripus incon~ venience and discomfort of the travelling public\n\n, in additiqo to causing loss of revenue to the State, and that it was with a view to eliminate such evils that the impugned rule had been framed. Jt is true that fhc state has necessary machinery to check such contravention, but it cannot always succeed in doing so.\n\n[774D; 775D; 776B-D]\n\n(2) There is no -difficulty in getting the pern1it amended in order to -allow for the increased capacity, because. under Rule 131. the procedure for replacing any vehicle covered hv a permit by a vehicle of a ditf.erent type or of a different capacity is made simple.\n\n1775B-C]\n\n(3) The tax on a bus with a minimum capacity of 40 is more than the tax on a bus with a minimum capacity of 30; but there is no basis for the contention that the ru1e is intended to secure more revenue indirectly; because, the State can do it directly by increasing the rate of tax.\n\n!776A-B]\n\n( 4) The High Court erred in holding that any regulation rel!.arding the minimum number, being uncommon has to be specially defended.\n\nThe High Court also erred in ho1din~ that the State had not taken into\n\naccount the prevailin~ conditions in the country with regard to the manufacture and availability of bus chassis.\n\nWhen a certain chassis is capable o'f havin~ a body constn1cted on it so that it can carrv a certain number of passengers to construct a lesser number of seats is waste of \\'aluahle transportation facility.\n\n[774E-F; 776D-FJ\n\n(5) Stage carriage operators, exclusively in cities and towns, form a class by themselves and the exemntion in their case has a direct relation to the objectil'es sought to be achieved. Therefore, there is no question\n\nof anv arbitrary -or excessive invnsion of the respondent's rights. The rule iS o:ic of &eneral app'icatiofl' in the interest of the general travelling passengers.\n\n[776F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 141 of 1972.\n\nAppeal by special leave from. the judgment and orde~ date~ April 15, 197 l of the Mysore High Court at Bangalore m Wnt Petition No. 5109 of 1970.\n\nH. B. Datar, and R. B. Datar, for the appellants.\n\nM. C. Setalvad and K. N. Bhatt, for the respondent.\n\nThe Judgment of the Court was devlivered by\n\n ALAGIRISWAMI, J.\n\nThis is an appeal against the judgment ot the High Court of Mysore striking down Rule 216(2) of the Mysore Motor Vehicles Rules, 1963, introduced on 7th October, 1969, on the ground that it violates Article 19( l )(g) of the.\n\nConstitution.\n\nThe respondent, who is a transport operator plying buses between Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one.\n\nUnder the permit granted to him, which was valid up to 30-10-1975, his bus had a seating capacity of 30.\n\nOn 2-11-1970 he applied to the Regional Transport Officer, Bangalore Region, for prnnission to alter the seating capacity of the new bm, which he had acquired. from 40 to 30. This application having been ejected he filed a\n\npetition fori ssue of a writ of Mandamus directing the Regional Transport Officer to grant the necessary permission, and that petition having been allowed the State of Mysore has come on appeal to this Court by special !eave.\n\nThe contention of the operator was that the impugned ruk which fixed the minimum seating capacity of buses is really intended indirectly to compel the operators to pay more taxes. that he is already operating on a narrow margin of profit and if he ;,; compelled to increase the number of scats in his. bus he would incur losses because of the additional tax which.he will have to pay and this is an interference with his right to carry on his business.\n\nAccording to the State the impugned Rule was intended to eliminate the evil of stage-carriage operators carrying passengers in excess of the seating capacitv specified in the regislrution cerlificate and the permit, to the serious inconvenience and discomfort of the travelling public, in addition to causing loss of revenue to the State. There is no dispute that the bus hi question can have a seating capacity of 40.\n\nThe impugned Rule, in so far as it is relevant, reads as follows\n\n\"216 (1) ................... .\n\n(2) The minimum seating capacity of a Public Service vehicle shall be directly proportionate to the wheel base of the vehicle. In all Public Service vehicles other than motor cabs the minimum number of seats to be provided shall be as sp_ecified in column (2) of the Table below :\n\nProvided that the operator may increase the capacity cone\n\nsistent with the other rules rlating to seating capacity and with due regard to the type of the chassis on which the body is fitted :\n\nWheel base\n\n(1)\n\n2S4 to 293 cm.\n\n294 to 305 cm.\n\n306 to 343 cm.\n\n344 to 407 <in.\n\n408 to 432 cm.\n\n433 to 496 cm.\n\n497 to 534 cm.\n\nabove 535 cm\n\nTABLE\n\nNo. of seats (Mini n1um seating capa\n\ncity)\n\n(2)\n\n(3) Nothing in sub-rule (2) shall apply to,-\n\n(i) stage carriages proposed to be operated exclusively in towns and cities; and\n\n(ii) stage carriages registered prior to the coming into force of the Mysore Motor Vehicles (V Amendment) Rules, 1969 :\n\nProvided that when the body of a stage carriage specified in item (ii) is reconstructed, the seats shall be so arranged as to face the front .and maximum number of.seats to the satisfaction of the Registering Autho\n\nrity, shall be provid~.\"\n\nIt is agreed by both the parties that there are only four manufacturers of bus chassis in the cotry '\\Vith wheel bases and number\n\nof seats as given below :\n\nSection 70 of the Motor Vehicles Act enables rul~ to be made regulating the construction, equipment and maintenance of motor vehicles. In addition there is power to make rules regarding the seating arrangements in public service vehicles. Under section 48 ( 3) of. the Act there is provision for fixing the maximum number of passengers that may be carried on , any specified vehicle or on any vehicle of a specified type. One of the conditions that may be attached to a permit under clause (xx) of that section is that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority. Under\n\nsection 60 of the Act a permit may be cancelled or suspended if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the pennit. Under section 123 whoever drives a motor vehicfe or causes or allows a motor vehicle to be used in contravention , of any conditions of a permit in regard to the maximum number of passengers that may be carried on the vehicle is also liable to punishment with a fiiie which .may extend to one thousand rupees for the first offence and imprisonment that may extend to six months or with fine which may extend to two thousand rupees, or with both for subsequent offences. Under Rule 137 of the Mysore Motor Vehicles Rules any of the conditions of the permit (which naturally includes\n\nthe condition regarding the maximum number of passengers that might be carried) can hie varied only alter followil!g the prescribed procedure. In view of these circumstances it is contended on behalf of the respondents that it is not possible for the transport operator to overload his buses in contravention of the conditions of his permit and that that cannot be a reason for fixing a minimum number of seats in a bus, It is also argued that while there is a specific section which enables the maximum number of passengers that can be carried on a biJs to be prescribed, there is no such power to prescribe the minimum number of passengers that can be carried in a bus.\n\nIt must be made .clear that all that is insist~ upon under the impugned Rule is the minimum number of seats to be provided in the bus. It has been urged on behalf of the State that the intention behind provic; ling buses with bigger bodies with lesser number of seats than they can be provided with is really intended to carry a larger number of passengers and pay a lesser tax.\n\nThough it is true that the State has the necessary machinery to check such contravention it cannot always succeed in doing so.\n\nHowever, we do not consider that the mere possibility of such overloading can justify the making of the impugned rule. It has been urged on behalf of the State that the demand for transport has been rising by leaps and bounds every year, whereas on behalf of the respondent it has been contended that the average number of passengers carried in his bus on this route is about 25.\n\nThe great demand for transport and the rush for seats in buses is too well-known to need emphasis. It appears to us that when a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers, to construct on tliat body a lesser number of seats is a waste of valuable transportation facility.\n\nEven on this route there are 14 buses plying between the two points 'in addition to longer distance buses, of which the stage between Doddaballapur and Tumkur forms a section. So it cannot be said that the demand here is as little as is urged on behalf of the respondent. There is no reason to disbelieve the' averment made on behalf of the State on this point.\n\nThe difference in taxation between a bus which carries 30 passengers and a bus carrying 40 passengers is about Rs. 400/ -\n\nper quarter or Rs. 1600/· per year whereas the difference is Rs. 225 /- per quarter between a bus carrying 30 and one carrying 35 passengers. That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 stand ing passengers are allowed in a bus with a carrying capacity of an!I above. The tax payable in respect of standing p11$sengers ts Rs. 10 per quarter. The tax payable under the Mysore Motor\n\nMYSOll v. K, G. JAGANNATH (A/agiriswami, J,) 715\n\nVohicles (Taxation on Passengers and Goods) Act, 1961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.\n\nThe difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the in creased capacity im)l95Cd by Rule 13 7 and provision of section 48 (3 )(xxi) regarding the v?fiation of the conditions of the permit need not detain us for long because under the new section 59(2), as amended by Act 56 of 1969, the holder of a permit may, with the permission of the authority by \\_Vhich the permit was granted replace any vohicle covered by the permit by any other vehicle of the same nature. Under Rule 13.1 the prncedure\n\nfor replacing any vehicle covered by a permit by a vehicle of a different type or of 'a differen~ capacity is also µiade clearly very simple and where it is of the same type or capacity the variation has to be granted within a week. We are also of opinion that the power conferred by section 70 of the Act is wide enough to enable the making of the impugned Rule.\n\nThe validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicles oper.ators as well as the public.\n\nWe have shown . above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the averai:e number of passengers in buses over this route is only 25, the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility.\n\nBuses so released could be used elsewhere to much greater advantage to the travelling public. There :ire many areas and many routes crying for transport facilities and they would be better served. We arc unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest m be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running between Doddaballapur and Tumkur.\n\nIf it is found that the average number of passengers only 25, the proper thing to do would be for him to cut down his buses on this route from four to three.\n\nIn that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on his business.\n\nThough it is not in evidence it may be presumed that the cost of operation of a bus whether it is provided with 30 or 40 seats\n\nmay not be very much different and there will be the additional facility available to the public if the bus has more seats. Moreover, as traffic grows, as it has a tendency to grow everywhere, the public will be better served. . We are 'unable to accept the contention that the Rule providing for minimum number of seats is intended. to secure more revenue indirectly. The State can do it directly by increasing the rate of tax .\n\nIt is really a rule intended for the benefit of the travelling public.\n\nWe see no re; ison not to accept the statement made on behalf of the State that the passenger traffic on every i:oute in the State has increased by leaps and oounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified jo the Registration Certificate and the permit to the serious inconvenience and discomfort of the iravelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned Rule has been framed.\n\nWe are unable to agree with the High Court that as usually there are only replations regarding the maximum number of seats, any regulation regarding the minimum. number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travelling public.\n\nNor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard tc;> the manufacture and availabality of bus chassis.\n\nThe minimum number of seats insisted upon defends upon the chassis.\n\nIn this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us.\n\nApparently the State has decided to make the necessary provision in this regard.\n\nStage carriage operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the dbjective sought to be achieved.\n\nThere is no question here of any arbitrary or excessive invasion of the respondent's rights.\n\nThe Rule is one of general application which can be justified as being in the interest of the generat travelling public.\n\nThe appeal is, therefore. allowed and the order of the Mysore High Court is set aside.\n\nThe respondent will pay the appellants' costs.\n\nV.P.S.\n\nAppeal al/owtd.\n\nL761Sup.(C!)/73-2S00--4·9-74-GIPF.", "total_entities": 30, "entities": [{"text": "STATE OF MYSORE & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE & ANR", "offset_not_found": false}}, {"text": "K. G. JAGANNATH", "label": "RESPONDENT", "start_char": 27, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "K. G. JAGANNATH", "offset_not_found": false}}, {"text": "March 27, 1973", "label": "DATE", "start_char": 43, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "v.\n\nK. G. JAGANNATH March 27, 1973\n\n(A. ALAGIRISWAMI AND C. A. VAIDIALINGAM, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 60, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "Motor Vehicle Rules, 1963", "label": "STATUTE", "start_char": 116, "end_char": 141, "source": "regex", "metadata": {}}, {"text": "Mysore Motor Vehicle Rules, 1963", "label": "STATUTE", "start_char": 258, "end_char": 290, "source": "regex", "metadata": {}}, {"text": "s. 70", "label": "PROVISION", "start_char": 877, "end_char": 882, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Motor Vehicle Rules, 1963", "statute": "the Mysore Motor Vehicle Rules, 1963"}}, {"text": "H. B. Datar", "label": "LAWYER", "start_char": 3626, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "H. B. Datar, and R. B. Datar, for the appellants.", "canonical_name": "H. B. Datar"}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 3643, "end_char": 3654, "source": "ner", "metadata": {"in_sentence": "H. B. Datar, and R. B. Datar, for the appellants.", "canonical_name": "H. B. Datar"}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3677, "end_char": 3691, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and K. N. Bhatt, for the respondent."}}, {"text": "K. N. Bhatt", "label": "LAWYER", "start_char": 3696, "end_char": 3707, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and K. N. Bhatt, for the respondent."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 3776, "end_char": 3788, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was devlivered by\n\n ALAGIRISWAMI, J.\n\nThis is an appeal against the judgment ot the High Court of Mysore striking down Rule 216(2) of the Mysore Motor Vehicles Rules, 1963, introduced on 7th October, 1969, on the ground that it violates Article 19( l )(g) of the."}}, {"text": "Mysore Motor Vehicles Rules, 1963", "label": "STATUTE", "start_char": 3894, "end_char": 3927, "source": "regex", "metadata": {}}, {"text": "Article 19( l )(g)", "label": "PROVISION", "start_char": 3993, "end_char": 4011, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Motor Vehicles Rules, 1963", "statute": "the Mysore Motor Vehicles Rules, 1963"}}, {"text": "Doddaballapur", "label": "GPE", "start_char": 4101, "end_char": 4114, "source": "ner", "metadata": {"in_sentence": "The respondent, who is a transport operator plying buses between Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one."}}, {"text": "Tumkur", "label": "GPE", "start_char": 4119, "end_char": 4125, "source": "ner", "metadata": {"in_sentence": "The respondent, who is a transport operator plying buses between Doddaballapur and Tumkur, wanted to replace one of his buses running on that route with a new one."}}, {"text": "30-10-1975", "label": "DATE", "start_char": 4256, "end_char": 4266, "source": "ner", "metadata": {"in_sentence": "Under the permit granted to him, which was valid up to 30-10-1975, his bus had a seating capacity of 30."}}, {"text": "2-11-1970", "label": "DATE", "start_char": 4310, "end_char": 4319, "source": "ner", "metadata": {"in_sentence": "On 2-11-1970 he applied to the Regional Transport Officer, Bangalore Region, for prnnission to alter the seating capacity of the new bm, which he had acquired."}}, {"text": "Bangalore Region", "label": "GPE", "start_char": 4366, "end_char": 4382, "source": "ner", "metadata": {"in_sentence": "On 2-11-1970 he applied to the Regional Transport Officer, Bangalore Region, for prnnission to alter the seating capacity of the new bm, which he had acquired."}}, {"text": "State of Mysore", "label": "ORG", "start_char": 4690, "end_char": 4705, "source": "ner", "metadata": {"in_sentence": "This application having been ejected he filed a\n\npetition fori ssue of a writ of Mandamus directing the Regional Transport Officer to grant the necessary permission, and that petition having been allowed the State of Mysore has come on appeal to this Court by special !"}}, {"text": "According to the State the impugned Rule", "label": "STATUTE", "start_char": 5212, "end_char": 5252, "source": "regex", "metadata": {}}, {"text": "Section 70", "label": "PROVISION", "start_char": 7056, "end_char": 7066, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 7074, "end_char": 7092, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 48", "label": "PROVISION", "start_char": 7301, "end_char": 7311, "source": "regex", "metadata": {"statute": null}}, {"text": "section 60", "label": "PROVISION", "start_char": 7699, "end_char": 7709, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 7884, "end_char": 7895, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 11693, "end_char": 11703, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59(2)", "label": "PROVISION", "start_char": 11820, "end_char": 11833, "source": "regex", "metadata": {"statute": null}}, {"text": "section 70", "label": "PROVISION", "start_char": 12362, "end_char": 12372, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 16707, "end_char": 16724, "source": "ner", "metadata": {"in_sentence": "allowed and the order of the Mysore High Court is set aside."}}]}
{"document_id": "1973_3_777_782_EN", "year": 1973, "text": "BISHAMBAR NATH AND OTHERS\n\nTIJE AGRA NAGAR MAHAP ALlKA AGRA AND ANO; HER\n\nMarch 28, 1973 ·\n\n[J. M. $HELAT, ACTING C.J., 5. N. DWIVEDI AND B .\n\nY. V. CHANDRACHUD, JJ.] .\n\nu.P. Municipalities Act, Sec. 244, \"An article of food or drink apptars to be intended for tire conswnptio1r of man,\"-Un{it condition ._ fl/ foodstuff i~ to e determine~ by . an objccthe test and not 011\n\nsubjective salls/actlOii of the mspectmg o[Jicer-Whethl!r the order re gu/ating sale of alia for animal consumplioli a/id undu Sec. 244.\n\nThe appellant purchased certain quantity of wheat flour from the\n\n~Jilitary Dairy Farm, Agra. which was declared unfit for human consumption. He exposed it for sale with a sign-board that the wheat flour\n\n11'015 uniit for human consumption.\n\nThe appellant wanted to sell it for lchi or for manure or for animal consumption.\n\nOn complaint by the second respondent, the District l\\(agistrate, Agra, passed an order pro- D hibiting the sale umler section 144 of the Cr. P.C. The appellant was\n\nalso prosecuted under U.P. Prevention of Food Adulteration Act, but was acquitted: The appellant applied to the Corporation for permission to sell the wheat flour.\n\nOn September !7, !945, Respondent No. 1 passed\n\nn order under section 44 of the U.P. Municipalities Act permitting the disposal of the flour under certain conditions.\n\nOn representation made lty the appellant, Respondent No. 1 passed a second order on October_ 8,\n\n19~5. intr alia, directing that tile flour should not be sld for fedm~ E aJJ~J is kept for dairy purposes. The appellant filed. a sm.t fo: damage,\n\naz; r?>t the respondents for stopping the sale and for IIDJ?OSID,!l' illegal restnctJo:JS elfcc:tively preventing the s:J!e, resulting in dctenorattn of tc nour and Ia<..~ of profit,.\n\nThe trial court • decreed . the swt but tnc All;, habad High Court set it aside.\n\nOn app.:al to th1s Court, the ques 1'0:1 for consideration wa5 whether the order purported to be passcJ by ropondt:llt no. 1 under section 2-U was a valid order, and whether res- •. PoJL!ent No. 1 was liable to pay damages.\n\n1. HElD~ The phrase, \"an article of foou or drink appeas t!-> ba:~= f~d fo• conumption of man,\" does not conteptate subJt'C{;~~ 5ellcr ,11ct1011 of the inspecting officer :u held by t.he Htgll Court: Hi~ in-\n\n~tulrJ i.nll:nJ tn sell nn article of food for human consun;;~iJence as a\n\nr~,.'on It <in ohjective fact which shoulJ. be pro~ ny,; ucis intent.kd fc>t {; hu,; nJble rn:.n will believe that lh>! -:rt, de of f ' 111 40 con\\lllnption. (781 11 . f huntan conumption. It ~Iron 244(1) contempbte' a direct safe •'fIJ indirect sal~ for hum not contemplate, a~ the I ligh Court ha~ ~~ t' th~ nour is sold for ftc,/0 conumption. The Ili!:h Court hdd t_ 1 n it would be a sale for\n\n1h~ OJih.:h animal~ or animal'S whoe lles~JS ntt\\; r;:nd prevention or\n\nlle roman consumptio:1.\n\nThe legilature \\. 1 J by sub-section ( 1) 0\n\nSt<: , or con\\umption of animal~ to be regu a.: .\n\n'-44. f7BIHJ\n\n, ~~~ ppeal was partly ·· l1sl snmg the quantum\n\nP. CIJ73\n\naii.Jwed and remanded 0 ( Jamagi:S.\n\nto the High Court for\n\n,· .... ,..-·\n\nI I J\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\nCIVIL APPELLATE JURISDICTION : . Civil Appeal No. 1809 of\n\nJ 967.\n\nAppeal by certificate from the judgment and decree dated May 25, 1962 of the Allahabad High Court in Appeal No. 328 of 1950.\n\nC. K. Daphtary and Rameshwar Nath, for the appellants.\n\nR. N. Sharma and C. P. Lal, for the respondn<ts.\n\nThe Judgment of the Court was delivered by\n\nDWIVEDI, J.-The appellants instituted a suit against the res~ pondents for recovery of Rs. 34,000 as damages.\n\nThe suit wus grounded on tortious liabtility. The trial coun decreed the suit, but the High, Court of Allahabad reversed the decree and dismissed the suit. The present appeal is directed against the decree of the High Court.\n\nThe appellants are the partners of the firm Shiam Lal Radhey Lal. The first respondent is the Agra Mahapalika; the second respondent is the Health Officer of the Mahapalika. The Military Dairy Farm at Agra was in possession of a certain quantity of wheat flour.\n\nIt was declared unfit for human consumption .. It was purchased for the firm.\n\nAccording to the appellants, it was fit for being used as lehi, manure and ratab for consumption by animals. Broadly stated, their case was that the respondents initially stopped them from selling the flour and subsequently im~ posed restriction on its sale, \"which effectively prevented the sale.\" Loss was cause to them on account of delay in sale due to their intervention.\n\nThe respondents denied their liability. They said that their action was bona fide and in the interest of public safety and health and in pursuance of the directions given by the magistrate. According to themt the appellants took no steps to prevent the sale of flour for hl, Iman consumption.\n\nThe two central issues are : ( i) whether the respondents are liable to pay damages in the circumstances of the case; and (2) if so, what is tiJ8. quantum of their liability. On the first issue the High Court has held that the respondents are not liable at alt.\n\nOn the second issue the High Court has given no finding.\n\nThe appeHM!s started selling the flour from March 20, 1945.\n\nOn May 17, f945, the second respondent reported to the Administrator of the Nagarpalika that the flour was in a decomposed and deteriorated condition and was unfit for human consumption. He admitted in the report that the firm of the appellants \"has set up a placard to say it (flour) is condemned atta and unfit for consumotion.\" The Nagarpalika reported the matter to the District\n\nBISHAMBAR NATH v.· AGRA NAGAR MAHAPALIKA (Dwivedi, J.) 779\n\nMagistrate, Agra. On July 26, 1945 an order was issued under s. 144 Cr. P. C. prohibiting the appellants from selling the flour for one month. This order was extended till September 20, 1945 by another order, dated September 18, 1945.\n\nThe appellants were prosecuted for offences under ss. 4 and 14 of the U.P. Prevention of Adulteration Act and s. 273 I.P.C, . The flour was\n\nseized by the order of the magistrate ru1d kept in the custody of the appellants until further orders. the magistrate acquitted the appellants on September 5, 1945. In the operative portion of the judgment he gave this direction : \"Since this Atta is noxious to public health and it is not possible to prevent its reaching consumers (even though the accused had best intention) without effective regulation 1 order that the entire Atta still be taken possession oi by the Municipal medical officer of Health who will kindly regulate its disposal in consonance with considerations to the owner as is necessry to prevent its being used as food. The Atta has already been kept frozen for too long a time and I would request the medical officer to kindly expedite action in this. Copy , of this order may be sent to medical officer of Health immediately.\"\n\nOn September 17, 1945 the second respondent issued an order under s. 244 of the U.P. Municipalities Act. The order was with respect to 2048 bags of Atta seized by the magistrate in connection with the crimmal case. The order permitted the appellants to dispose of the ftour subject to the following conditions, : ( 1) they E should engage a salesman approved by the second respondent to sell the Atta; (2) they should keep -a separate stock book and sales-book in respect of the Atta. In the sales book the nan1.es\n\nand addresses of all buyers should be mentioned. There should be a column for the signature of the buyers; (3) the Atta should be sold onlyfor being used as lehi to recognised book-binders and F shoe-merchants etc.; and ( 4) they should submit weekly return of sale to the Nagarpalika. By their letter, dated September 22, 1945, the appellants replied to this letter. They said that the Atta could also be used for animal food and wanted pennission to :.eH it for animal food after mixing gram dal chuni with it.\n\nThey ended the letter by saying that immediate attention should be paid to their request as they have \"already suffered great loss at their G hands due to wrongful seizure etc. and as the delay affects the quality of the Atta.\" They sent a reminder on September 24,\n\n1945. The respondents, by their letter, dated September 27, 1945. infonned them that the appointment of Nanu Mal as salesman was awroved. It was emohasised in the letter that the directions mentioned in the letter of September 17, 1945 should be carried It out by them .. ; J'hey gave no reply to the request of the appellants for the sale of flour for animal food. By his letter, dated October 6, 1945, the second respondent, however, oennitted them to sell the flour for animal food under certain conditions. By the letter,\n\n\n[1973] 3 S.C, R.\n\ndated October 8, 1945, the second respondent issued the followjng directions to the appellants under s. 244 of the Municipalities Act : (1) The Atta should not be sold for feeding animals kept for dairy purposes; (2) flour less than one full bast should not\n\nbe sold to one individual; (3) there should be a distinctive label on every bag containing the warning that the conte:q.ts could be used for animals only and were unfit for human consumption; and ( 4) any officer of the N agarpalika not below the rank of a Sanitary Inspector would be allowed free access to the shop in which the Atta was stored for the purpose of inspecting sales and examining the account books.\n\nWe do not think that the respondents are liable for the stoppage of sale from July 26 to September 20, 1945. During that period the sale was stopped biY an order of the magistrate under s. 144 Cr. P.C. The question is whether they are liable tor loss incurred by the appellants for any period after September 20,\n\n1945.\n\nThe appellants ground their claim on the respondents' orders passed under section 244 of the Municipalities Act between September 17 and October 8, 1945. They say that the orders arc invalid and malafide.\n\nThe IJ'Spondents seek to escape -liability in two ways : (1) firstly, they acted in accordance with the order of the magistrate, dated September 5, 1945; secondly, their orders under s. 244 were valid and made bonafide.\n\nThe magistrate's order can 'afford them no protection. The magistrate had no power to make that order. Counsel for the respondents did not bring to our notice any provision of law empowering the magistrate to make that order. It is now to be seen whether the respondent's action is protected by the provisions of section 244.\n\nSection 244 finds place in Chapter VIII of the Municipalities Act. Chapter VIII deals with markets, slaughter houses and sale of food etc.\n\nSections 239, 242 and 243 are also included in Chapter VIII.\n\nSection 239 materially provides that \"whenever it appears to the District Magistrate to be necessry for the preservation of the pub1ic peace or order, he may .. ; ... prohibit or regulate, the slaughter within the limits of a municipality of animal or animals of any specified description for purposes other than sale and prescribe the mode and route in and by which such animals shall be brought to, and meat shall be conveyed from, the place of slaughter.'' Section 242 reads : \"Whoever feeds or allows to be fed, an animal which is kept for dairy purposes, or may be used for food, on filthy or deleterious substance, shall be liable to conviction to a fine which may extend to fifty rupees. Section 243 is in these words : \"The President, the executive officer, or the medical officer of health and, if authorised in this behalf by resolutjon, any other member, officer or servant of the board may. without notice, at any period of the day or night, enter into and\n\nBISHAMBAR NATH V. AGilA NAGAR MAHAPALIKA (Dwivedi, J.) 781 . .\n\ninspect a market, shop, stall or place used for the sale of food or drink for man, or as a slaughter-house, or for the sale of drugs and inspect and examine any articles of food or drink, or any animal or drug which may be therein.\" Section 244 reads : ( 1 ) If, in the course of the inspection of a place under the preceding section, an article of food or drink or an animal appears to be intended for the consumption of man and to be unfit therefor, the board may seize and remove the same, or may cause it to be destroyed,. or to be so disposed of as to prevent its bein~ exposed for sale or use for such consumption.\" Section 244( 1) IS not happily worded. However, when the phrase \"an article of food or drink or an animal appears to be intended for the consumption of man\" is read in the context of s. 243, the implication of the phrase becomes plain. It implies that' the sale of an article of food or drink or an animal should appear to be intended for human consumption and should be unfit therefor. Admittedly, th~ flour was unfit for human consumption. So the real issue js as to whether its sale appeared to be intended for human oonsuinption.\n\nAccording to the High Court, the phrase \"appears to hie intend~ ed lor the consumption of man'' connotes that the sale of an article of food should appear to the inspecting officer to be intended for humari consumption. His subjective satisfaction about this matter is decisive. The High Court has also taken the view that sub- E section ( 1 ). aims to prevent a direct as well as an indirect sale for human consumption. According to the High Court, if the flour is sold for feeding milch animals or animals whose flesh is eaten, it would be a :; ale for human consumption. In our opinion, s. 244( 1) is not susceptible of those meanings. e phrase \"an article of food or drink appears to be intended for the consumption of man''\n\ndoes not contemplate any subjective satisfaction. The seller F should intend to sell an article of food for human .consumption.\n\nHis intention is an objective fact. There should be present some facts or circu.nma.nces which would incline a reasonable man to believe that the sale of an article of food or drink or an -animal was intended for human consumption. The language of subsection ( 1) of s. 244 is radically different from the lanuage of G s. 239. Under s. 239 the District Magistrate is empowered to act whenever it appears to him to bte necessary for the preservation of public peace. or order.\n\nThese words are not used in s. 244( 1).\n\nAgain, the phrase \"an article of food or drink or animal appears to be intended for the consumption of man, does not contemplate an indirect purpose of sale. It contemplates sale for human con- H sumption, If an article mentioned in sub-section ( 1) of s. 244 is sold for feeding an animal which is kept for dairy purposes, the seller shall be liable on conviction to a fine which may extend to fifty rupees. (See section 242) . If the Legislature had intanded\n\n\n[1973] 3 S.C, R.\n\nto prevent sale for animal consumption also, it would have clearly said so in sub-section ( 1) of s. 244.\n\nIt is true that the object of s. 244 (1) is laudable. But it is not legitimate to strain the language of the section as the High Court has done in aid of such object. It is open to the legislature to amend the section if it intends to give greater protection to municipal action.\n\nIt is clear from the evidence on record that the appellants had taken steps to inform the buyers that the flour was unfit for human consumption. They had pla<::ed a sign-board in which it was clearly stated that the flour was unfit for human consumption. The oral evidence adduced by the appellants is to the same effect. It is admitted by the respondents that the appellants had placed a placard informing that the flour was unfit for human consumption.\n\nTheir oral evidence does not show that the appellants were selling flour for human consumption. The appellants mixed mai2Je flour with the condemned flour. But this act also would not show thatthey intended to sell the mixed flour for human food. The respondents could not therefore take action under s. 244. The orders passed by them under section 244 are invalid.\n\nIt is immaterial that the respondents had acted bona fide and in the interest of preservation of public health. There motive may be good but their orders are illegal. They would accordingly be liable for agy loss caused to the appeants. by their action.\n\nThe High Court has not recorded any finding on the quantum of their liability. In view of our finding that the respondents are liable, the, case will now have to go back to the High Court for giving a finding on the issue regarding damages.\n\nWe allow the appeal and set aside the judgment and decree of the High Court. The case is remanded to the High Court ior deciding the issue about damages. Costs will abide the decision of the High Court on the question of damages.\n\nS.B.W.\n\nAppeal allowed.", "total_entities": 69, "entities": [{"text": "BISHAMBAR NATH AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "BISHAMBAR NATH AND OTHERS", "offset_not_found": false}}, {"text": "TIJE AGRA NAGAR MAHAP ALlKA AGRA AND ANO; HER", "label": "RESPONDENT", "start_char": 27, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "THE AGRA NAGAR MAHAPALIKA AGRA AND ANOTHER", "offset_not_found": false}}, {"text": "5. N. DWIVEDI", "label": "JUDGE", "start_char": 120, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD, JJ.", "label": "JUDGE", "start_char": 143, "end_char": 165, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Sec. 244", "label": "PROVISION", "start_char": 195, "end_char": 203, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 244", "label": "PROVISION", "start_char": 502, "end_char": 510, "source": "regex", "metadata": {"statute": null}}, {"text": "section 144", "label": "PROVISION", "start_char": 957, "end_char": 968, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act", "label": "STATUTE", "start_char": 1031, "end_char": 1066, "source": "regex", "metadata": {}}, {"text": "section 44", "label": "PROVISION", "start_char": 1231, "end_char": 1241, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Food Adulteration Act", "statute": "Prevention of Food Adulteration Act"}}, {"text": "section 2", "label": "PROVISION", "start_char": 1980, "end_char": 1989, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Food Adulteration Act", "statute": "Prevention of Food Adulteration Act"}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3338, "end_char": 3352, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary and Rameshwar Nath, for the appellants."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 3357, "end_char": 3371, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary and Rameshwar Nath, for the appellants."}}, {"text": "R. N. Sharma", "label": "LAWYER", "start_char": 3394, "end_char": 3406, "source": "ner", "metadata": {"in_sentence": "R. N. Sharma and C. P. Lal, for the respondn<ts."}}, {"text": "C. P. Lal", "label": "LAWYER", "start_char": 3411, "end_char": 3420, "source": "ner", "metadata": {"in_sentence": "R. N. Sharma and C. P. Lal, for the respondn<ts."}}, {"text": "DWIVEDI", "label": "JUDGE", "start_char": 3488, "end_char": 3495, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDWIVEDI, J.-The appellants instituted a suit against the res~ pondents for recovery of Rs.", "canonical_name": "DWIVEDI"}}, {"text": "High, Court of Allahabad", "label": "COURT", "start_char": 3686, "end_char": 3710, "source": "ner", "metadata": {"in_sentence": "The trial coun decreed the suit, but the High, Court of Allahabad reversed the decree and dismissed the suit."}}, {"text": "Shiam Lal Radhey Lal", "label": "OTHER_PERSON", "start_char": 3869, "end_char": 3889, "source": "ner", "metadata": {"in_sentence": "The appellants are the partners of the firm Shiam Lal Radhey Lal."}}, {"text": "Agra Mahapalika", "label": "RESPONDENT", "start_char": 3919, "end_char": 3934, "source": "ner", "metadata": {"in_sentence": "The first respondent is the Agra Mahapalika; the second respondent is the Health Officer of the Mahapalika."}}, {"text": "Agra", "label": "GPE", "start_char": 4026, "end_char": 4030, "source": "ner", "metadata": {"in_sentence": "The Military Dairy Farm at Agra was in possession of a certain quantity of wheat flour."}}, {"text": "March 20, 1945", "label": "DATE", "start_char": 5204, "end_char": 5218, "source": "ner", "metadata": {"in_sentence": "The appeHM!s started selling the flour from March 20, 1945."}}, {"text": "May 17, f945", "label": "DATE", "start_char": 5224, "end_char": 5236, "source": "ner", "metadata": {"in_sentence": "On May 17, f945, the second respondent reported to the Administrator of the Nagarpalika that the flour was in a decomposed and deteriorated condition and was unfit for human consumption."}}, {"text": "Nagarpalika", "label": "ORG", "start_char": 5556, "end_char": 5567, "source": "ner", "metadata": {"in_sentence": "The Nagarpalika reported the matter to the District\n\nBISHAMBAR NATH v.· AGRA NAGAR MAHAPALIKA (Dwivedi, J.) 779\n\nMagistrate, Agra."}}, {"text": "July 26, 1945", "label": "DATE", "start_char": 5686, "end_char": 5699, "source": "ner", "metadata": {"in_sentence": "On July 26, 1945 an order was issued under s. 144 Cr."}}, {"text": "s. 144", "label": "PROVISION", "start_char": 5726, "end_char": 5732, "source": "regex", "metadata": {"statute": null}}, {"text": "September 20, 1945", "label": "DATE", "start_char": 5837, "end_char": 5855, "source": "ner", "metadata": {"in_sentence": "This order was extended till September 20, 1945 by another order, dated September 18, 1945."}}, {"text": "September 18, 1945", "label": "DATE", "start_char": 5880, "end_char": 5898, "source": "ner", "metadata": {"in_sentence": "This order was extended till September 20, 1945 by another order, dated September 18, 1945."}}, {"text": "ss. 4 and 14", "label": "PROVISION", "start_char": 5951, "end_char": 5963, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Adulteration Act", "label": "STATUTE", "start_char": 5976, "end_char": 6006, "source": "regex", "metadata": {}}, {"text": "s. 273", "label": "PROVISION", "start_char": 6011, "end_char": 6017, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Adulteration Act", "statute": "Prevention of Adulteration Act"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6018, "end_char": 6023, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "September 5, 1945", "label": "DATE", "start_char": 6188, "end_char": 6205, "source": "ner", "metadata": {"in_sentence": "the magistrate acquitted the appellants on September 5, 1945."}}, {"text": "September 17, 1945", "label": "DATE", "start_char": 6898, "end_char": 6916, "source": "ner", "metadata": {"in_sentence": "On September 17, 1945 the second respondent issued an order under s. 244 of the U.P. Municipalities Act."}}, {"text": "s. 244", "label": "PROVISION", "start_char": 6961, "end_char": 6967, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "September 22, 1945", "label": "DATE", "start_char": 7720, "end_char": 7738, "source": "ner", "metadata": {"in_sentence": "By their letter, dated September 22, 1945, the appellants replied to this letter."}}, {"text": "September 24,\n\n1945", "label": "DATE", "start_char": 8177, "end_char": 8196, "source": "ner", "metadata": {"in_sentence": "They sent a reminder on September 24,\n\n1945."}}, {"text": "September 27, 1945", "label": "DATE", "start_char": 8238, "end_char": 8256, "source": "ner", "metadata": {"in_sentence": "The respondents, by their letter, dated September 27, 1945."}}, {"text": "Nanu Mal", "label": "OTHER_PERSON", "start_char": 8296, "end_char": 8304, "source": "ner", "metadata": {"in_sentence": "infonned them that the appointment of Nanu Mal as salesman was awroved."}}, {"text": "October 6, 1945", "label": "DATE", "start_char": 8579, "end_char": 8594, "source": "ner", "metadata": {"in_sentence": "By his letter, dated October 6, 1945, the second respondent, however, oennitted them to sell the flour for animal food under certain conditions."}}, {"text": "October 8, 1945", "label": "DATE", "start_char": 8744, "end_char": 8759, "source": "ner", "metadata": {"in_sentence": "By the letter,\n\n[1973] 3 S.C, R.\n\ndated October 8, 1945, the second respondent issued the followjng directions to the appellants under s. 244 of the Municipalities Act : (1) The Atta should not be sold for feeding animals kept for dairy purposes; (2) flour less than one full bast should not\n\nbe sold to one individual; (3) there should be a distinctive label on every bag containing the warning that the conte:q.ts could be used for animals only and were unfit for human consumption; and ( 4) any officer of the N agarpalika not below the rank of a Sanitary Inspector would be allowed free access to the shop in which the Atta was stored for the purpose of inspecting sales and examining the account books."}}, {"text": "s. 244", "label": "PROVISION", "start_char": 8839, "end_char": 8845, "source": "regex", "metadata": {"statute": null}}, {"text": "July 26 to September 20, 1945", "label": "DATE", "start_char": 9491, "end_char": 9520, "source": "ner", "metadata": {"in_sentence": "We do not think that the respondents are liable for the stoppage of sale from July 26 to September 20, 1945."}}, {"text": "s. 144", "label": "PROVISION", "start_char": 9599, "end_char": 9605, "source": "regex", "metadata": {"statute": null}}, {"text": "September 20,\n\n1945", "label": "DATE", "start_char": 9712, "end_char": 9731, "source": "ner", "metadata": {"in_sentence": "P.C. The question is whether they are liable tor loss incurred by the appellants for any period after September 20,\n\n1945."}}, {"text": "section 244", "label": "PROVISION", "start_char": 9808, "end_char": 9819, "source": "regex", "metadata": {"statute": null}}, {"text": "September 17 and October 8, 1945", "label": "DATE", "start_char": 9854, "end_char": 9886, "source": "ner", "metadata": {"in_sentence": "The appellants ground their claim on the respondents' orders passed under section 244 of the Municipalities Act between September 17 and October 8, 1945."}}, {"text": "s. 244", "label": "PROVISION", "start_char": 10123, "end_char": 10129, "source": "regex", "metadata": {"statute": null}}, {"text": "section 244", "label": "PROVISION", "start_char": 10474, "end_char": 10485, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 244", "label": "PROVISION", "start_char": 10488, "end_char": 10499, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VIII of the Municipalities Act", "label": "STATUTE", "start_char": 10515, "end_char": 10553, "source": "regex", "metadata": {}}, {"text": "Sections 239, 242 and 243", "label": "PROVISION", "start_char": 10628, "end_char": 10653, "source": "regex", "metadata": {"linked_statute_text": "Chapter VIII of the Municipalities Act", "statute": "Chapter VIII of the Municipalities Act"}}, {"text": "Section 239", "label": "PROVISION", "start_char": 10690, "end_char": 10701, "source": "regex", "metadata": {"linked_statute_text": "Chapter VIII of the Municipalities Act", "statute": "Chapter VIII of the Municipalities Act"}}, {"text": "Section 242", "label": "PROVISION", "start_char": 11150, "end_char": 11161, "source": "regex", "metadata": {"linked_statute_text": "Chapter VIII of the Municipalities Act", "statute": "Chapter VIII of the Municipalities Act"}}, {"text": "Section 243", "label": "PROVISION", "start_char": 11385, "end_char": 11396, "source": "regex", "metadata": {"linked_statute_text": "Chapter VIII of the Municipalities Act", "statute": "Chapter VIII of the Municipalities Act"}}, {"text": "BISHAMBAR NATH V. AGilA NAGAR MAHAPALIKA", "label": "JUDGE", "start_char": 11660, "end_char": 11700, "source": "ner", "metadata": {"in_sentence": "without notice, at any period of the day or night, enter into and\n\nBISHAMBAR NATH V. AGilA NAGAR MAHAPALIKA (Dwivedi, J.) 781 . ."}}, {"text": "Dwivedi", "label": "JUDGE", "start_char": 11702, "end_char": 11709, "source": "ner", "metadata": {"in_sentence": "without notice, at any period of the day or night, enter into and\n\nBISHAMBAR NATH V. AGilA NAGAR MAHAPALIKA (Dwivedi, J.) 781 . .", "canonical_name": "DWIVEDI"}}, {"text": "Section 244", "label": "PROVISION", "start_char": 11957, "end_char": 11968, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 244( 1)", "label": "PROVISION", "start_char": 12346, "end_char": 12361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 243", "label": "PROVISION", "start_char": 12529, "end_char": 12535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244( 1)", "label": "PROVISION", "start_char": 13471, "end_char": 13481, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244", "label": "PROVISION", "start_char": 14007, "end_char": 14013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 239", "label": "PROVISION", "start_char": 14059, "end_char": 14065, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 239", "label": "PROVISION", "start_char": 14073, "end_char": 14079, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244( 1)", "label": "PROVISION", "start_char": 14245, "end_char": 14255, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244", "label": "PROVISION", "start_char": 14511, "end_char": 14517, "source": "regex", "metadata": {"statute": null}}, {"text": "section 242", "label": "PROVISION", "start_char": 14672, "end_char": 14683, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244", "label": "PROVISION", "start_char": 14837, "end_char": 14843, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244", "label": "PROVISION", "start_char": 14876, "end_char": 14882, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 244", "label": "PROVISION", "start_char": 15884, "end_char": 15890, "source": "regex", "metadata": {"statute": null}}, {"text": "section 244", "label": "PROVISION", "start_char": 15924, "end_char": 15935, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_783_793_EN", "year": 1973, "text": "S. P. WATEL AND OTHERS\n\nSTATE OF U.P. (with connected appeals) March 28, 1973\n\n[S. M. S!KRI C. J., A. N. RAY, 0. G. PALEKAR, S. N. DWIVEDI AND A. K. MUKitERJEA, JJ.]\n\nU.P. Urhan Areas Zamindari Abolition and Land Reforms Act, 1956- Land leasecl for planting a grove, erecting buildings etc.-Dots not fall exclusively under s. 2(1 )(d)-.Secli<>n 2(1 )(d) must be interpretJ<d as relating to agricultural land only-Thus construed if protected by Art. 3 lA of the Constitution-Land in question not proved to be 'agricultural area'-Notification under s. 8 of A.ct cannot be i\"ssued z'n respect of it- Abatement of suits and appeals under Rule 39 of the U.P. Urban Areas 7.amindari Abolition and Land Reforms Rules 1957.\n\nPlot No. 4635A (old number 5199) admeasusing 1 bigha and 2 hiswas and located in the Meerut municipal area was leased by the Lala Nanak Chand Trust to the predecessor-in-interest of the present respondents.\n\nAccording to the lease deed dated June 23, 1926 the lease was granted \"for the purpose of planting a grove, erecting buildin!>' and digging wells etc.\". The period of the lease was 30 years but the lessor agreed that on the expiration of that period he would at the request of the lessee renew the lease for another 30 years.\n\nOn the expiry of the initial period of 30 years on July l, 1956 the lessor Trust instituted a suit for recovery of possession of the alforesaid land. The suit was dismissed by the trial court but decreed by the fir.st appellate court.\n\nThe respondents thereafter, on permission 'granted by the said first appellate court instituted a suit for the specific performance of the agreement to re-let the land for anot1her term of 30 years. The suit was dismisood on the ground of limitation by the trial court, as well as the first appetlate court.\n\nIn hoth the suits the present respondents filed second appeals in the High Court.\n\nWhile these appeals were pending the U.P. Urban Areas Zamin- <lari Abolition and Land Reforms Act, 1956 was enforced in the city of Meerut.\n\nThe land in dispute was declared an 'agricultural area~ under the Act and a notification under s. 8 of the Act! vesting the land in the State was issued on July 16, 1964. Rule 39 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957 provided for abatement of certain suits and appeals.\n\nApplying the rule the High Court abated the two aforesaid appeals filed by the respondents before it.\n\nThe Trustees appealed to this Court by special leave. They also filed a writ petition under Art. 32 of the Constitution praying that the notification under s. 8 of the Act dated July 16, 1964 be quashed a.• violative of Articles 14, 19(1) (f) and 31 of the Constitution. It was further contended that s. 2(1)(d) of the Act whereby land held on lease duly executed before the first day of July 1955 for ihe purposes of erecting buildings thereon was included in the term 'agricultural area' was protect~ cd by Art. 31-A df the Constitution.\n\nHELD: (i) The lease was not exclusively a building lease. Admitted ly no building had been constructed. The respondents claimed to have planted a grove. If so, the land would be covered by s. 2(1)(c)(viii) The lease could not therefore be held to fall exclusively under s. 2(1)(d).,\n\n[790B) .\n\n(ii) In Durga Prasad's case the Allahabad High Court has pointed out the history of cl. (d). Tho High Court has taken the view that s. 2(1)(d) is limited to lands which are being used for agricultural purposes.\n\nThe conclusion must be held to be correct though for different reason•- On this construction of s. 2(l)(d) it cannot be said that this provision is not connected with agricultural reforms.\n\nIt could accordingly receive the protection of ArL 3 lA and would be immune from attack on the llJ'Ound of violation of Articles 14, 19 and 31. [792C]\n\nDurga Prasad v. Board of Reve11ue U.P. Allahabad and others, A.LR. 1970 AIL 159, referred to.\n\n(iii) The report of the Commission: would not show that the land in dispute was a grove within the meaning of s. 2(6) of the U.P. Tenancy Act, 1939. As the appellants had given the old number of the plot in their petition the Government did not reply to the allegation in the petition.\n\nAccordingly it was not possil;>Je to express any concluded opinion on the question whether the land in dispute was an 'agricultural area' on the date specified under s. 2( 1) and was being used for horticulture_ The issue must be decided afresh by the appropriate authority under the Act.\n\nIf it i• held by him that the land in dispute is an 'agricultural area' and the State Government issues a notification under s. 8 of the Act with respect to the land, the appeals will be. disposed of by the High Court in accordance will). the provisions of the Act.\n\n[793C]\n\n[Notification dated Juno 16, 1964 quashed, and orders of the High Court abating the appeals ind suits set aside.]\n\nORIGINAL JURISDICTION : Writ Petition No. 105 of 1969.\n\nPetition under Article 32 of the Constitution of India for the enforcement of fundamental rights and Civil and Appeals Nos.\n\n1402 and 1403 of 1969. ·\n\nAppeali by special leave from the judgmnt and order dated July 25, 1968 of the Allahabad High Court at Allahabad in Second Appeal Nos. 425 of 196() and 1649 of 1962.\n\nR. K. Garg and S. C. Agarwal for the petitioners (in writ petition) and for the ppellants (in appeals)\n\nG. N. Dikshit and 0. P. Rana. for the respondents (in writ petition) ·\n\nC. B. Agirrwala and M. M. Kshatrlya, for the respondents (in appeals).\n\nThe Judgment of the Court was delivered 1fy\n\nDwlvEDI, J.-These three cases have a common origin and are accordingly. being disposed of by a common judgment.\n\nThe city of Meerut iS a mwiicipality in Uttar Pradesh. Plot No. 4635A (old number 5199) ii located therein.\n\nIt. has an area of 1 bigha and 2 biswas. It formed part of the zamindari estate belonging to Lala Nanak Chand Trust.\n\nThe trUSt is a: charitable tntst vested in the Treasurer of Charitable Endowments\n\nand is managed by the Collector of Meerut through a commitJee of ¢rustees. On June 23, 1926, a lease deed was executed on behalf of the trust and in favour of one Bateshwar Dayal.\n\nBy the deed the aforesaid plot was let to Bateshwar Dayal. The lease was granted \"for the purpose of planting a grove, erecting b'Uildings and digging wells etc.\" The yearly rent was fixed at Rs. 12/8/-. The lease was a for a terms of 30 years with effect from June 1, 1926. The Jessee agreed to surrender theland and all buildings standing thereon to the lessor on the expiry of the period of lease. The buildings would biecome the property of the lessor.\n\nHe would have them without paying any compensation to the lessee. The lessor agreed that on the expiration of the period of lease he would at the request of the lessee grant to the lessee a new lease for another term of 30 years. c\n\nThe initial period of 30 years expired on July 1, 1956. Thereupon the trust instituted suit No. 690 of 1956 for recovery of possession over the aforesaid land from Bateshwar Dayal. Durin pendency of this suit Bateshyar Dayal died on March 6, 1958.\n\nThe suit was dismissed by the trial court on October 24, 1958.\n\nIt was, however, decreed by the first appellate court on November\n\n30, 1959. The appellate court granted six months' time to the defendants to institute a suit in the appropriate court tor specific performance of the agreement tore-let for another term of 30 years.\n\nBhagwat Dayal and others, heirs of Bateshwar Dayal, then instituted suit No. 34 of 1960 in the appropriate court for specific performance of the agreement to re-let the land for another term of 30 years. The Trust contested this suit, inter alia, on the ground that it was barred by limitation. This plea was upheld by the trial court and the suit was dismissed on October 30, 1961.\n\nThe first appellate court affirmed. the decree of the trial court on March 23, 1962.\n\nBhagwat Dayal and others filed a secQnd appeal in the Allahabad High Court against the judgment and decree passed in c the suit filed by the Trust on January 5, 1960. They also filed a\n\nsecond appeal against the judgment and decree in their own suit on April 23, 1962.\n\nWhile those appeals were pending, the _U.P.\n\nUrban Area Zamindari Abolition and Land Reforms Act, 1956 (hereinafter called the Act) was enforced i:n the city of Meerut. The land in dispute was declared \"agricultural area\" under the said Act.\n\nThereafter a notification was issued on June 16, 1964 under s. 8 of the Act vesting the land in the State.\n\nBhagwat Dayal then moved an application Q!efore the High Court for abating the two appeals as well as the two suits out of which those appeals had arisen in accordance with the provisions of the Act.\n\nThe High Court passed an order abating both the suits and appeals.\n\nThe order was made on July 25, 1968.\n\nAgainst this order the appellants have filed two appeals in this Court by special leave.\n\nThe appellants say that they have filed the writ petition No. l 05 of 1969 by way of abundant caution. The prayer in the petition is that the notification issued under s. 8 of the Act should be quashed. It is alleged in paragraph 4 of the petition that the disputed plot is a part of Kathi Babu Wali. In paragraph 20 of the writ petition it is reiterated that the disputed plot forms part of a residential Kothi within the municipality of Meerut and is nonagricultural area. It is alleged that the impugned notification is violative of the provisions of Articles 14, 19 ( 1) ( f) and 31 of the Constitution and is accordingly unconstitutional.\n\nBefore mentioning the arguments of Shri R. K. Garg, counsel for the appellants, it is necessary to have a look at the relevant provisions of the Act. The preamble to the Act states that it is expedient to provide for the abolition of Zarnindari system in agricultural areas situate in urban areas in Uttar Pradesh and \"for the acquisition of the rights, title and interest of . intermediaries between the tiller of the soil and the State in such areas and for the introduction of the land reforms therein.\". Section 2 in the definition clause, Sub-section ( l) of it defines the expression \"agricultural area\".\n\nAs this provision is important for this case, we are setting out its relevant portion.\n\n\"Agricultural area\" as respects any uran area means an area which, with reference to such date as the State Government may notify in that behalf, is-\n\n\" (a) in the possession of or held or deemed to be\n\nheld by an intermediary as sir, khudkasht or an intermediary's grove;\n\n(b) held as a grove by or in the personal cultivation\n\nof a permanent lessee in Avadh; or ( c) included in the holding of-\n\n( i) a fixed-rate tenant,\n\n(ii) an ex-proprietary tenant,\n\n(iii) an occupancy tenant,\n\n(iv) a tenant holding on special terms in Avadh.\n\n(v) a rent-free grantee,\n\n(vi) a grantee at a favourabl~ rate of rent.\n\n(vii) a hereditary tenant,\n\n(viii) a grove-holder,\n\n(ix) a sub-tenant referred to in sub-section (4) Of section 4 7 of the U .P. Tenancy Act, 1938, or\n\n(x) a non-occupancy tenant of land other than land referred to in sub-section ( 3) of Section 30 of the U.P. Tenancy Act, 1939, and is used by the holder thereof for purposes of agriculture or horticulture : Provided always that land which on the date aforesaid is occupied by building not being \"improvements\" as defined in Section 3 of the U.P.\n\nTenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area. ( d) held on a lease duly executed before the first day of July, 1955 for the purposes of erecting buildings thereon; or ( e) held or occupied by an occupier ...... \" Section 2(7) defines an \"intermediary\", inter alia, as a proprietor of an agricultural area. Section 2(12) defines \"proprietor\" as a person owning whether in trust or for his own benefits an agricultural area.\n\nSection 2(16) states that the words and expressions, \"grove\", \"grove-holder\", \"groveland\" and \"holding\" shall have the meaning assigned to them in the U.P Tenancy Act, 1939 .. Section 3 provides for demarcation of agricultural area in urban areas. Section 4 provides for publication of preliminary proposals 'Yith respect to -demarcation of agricultural areas. It provides also for inviting objections to the proposals.\n\nFinal demarcation is made by the Commissioner under s. 5. Section 8 provides that after agricultural areas have been demarcated under s. 5, the, State Government may, at any time by notification in the gazette, declare .that as from a date to be specified all such areas situate in the urban area shall vest in the State. From that date all such agricultural areas shall stand transferred to and vest in the State free from all encumbrances.\n\nSection 10 provides for the consequences of vesting. All rights, title and interest of an intermediary in an agricultural area cease and become vested in the State free from all encumbrances. All suits and proteedings of the nature to be prescribed by rules, and pending in any court, H on the date of vesting, shall be stayed.\n\nSection 17 (1) is important for our purposes, and we are quoting the material portion of it.\n\n\"Section 17. Settlement of certain lands with intermediaries or cultivators as bhumidhars-( 1) subject to the proviions of Section 16 and 18- ( a) alI lands in an agricultural area'-\n\n( i) in possession of, or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove,\n\n(ii) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh,\n\n(iii) held by a fixed-rate tenant or a rent-free as ·\n\nsuch, or\n\n(iv) held as such by-\n\n(i) an occupancy tenant, I\n\n(ii) a h':reditary tenant, I possessing the right\n\n(iii) a tenant on paua dawami )-to transfer or istamrari J the holding by sale. or\n\n(iv) held by a grove-hOlder on the date immediately preceding the date of vesting, and\n\n(b) all lands inan agricultural area held on lease duly made before the first day of July, 1955, for the. purpose of. erecting building thereon, shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or groveholder, as the case may be, who shall subject to the provisions of this AClt, be entitled to take or retain possession as a bhumidhar thereof.\" Section 19(j) provides that notwithstanding anything contained in the Act, every person who, on the date immediately preceding the date. of vesting occupied or held land in an agricultural area as a sub.lessee from a person holding land under a lease referred to in cl. (b) of sub-section ( 1) shall be deemed to be an asami thereof. Section 20( 1) provides that a bhumidhar of the land referred to in cl. (b) of sub-s. (1) of. s. 17, inay, within one year from the date of vesting, apply to the Assistant Collector, Incharge of the Sub-Division for ejectment of asami belongiag to the class mentioned ins. 19(j) on the ground that he wants to~ the land held by the asami for the purpose of erecting buildings\n\nthereon. If the Assistant Collector is satisfied after inquiry that the applicant intends to use the land for the purpose of erecting buildings thereon, he may. order ejectment of the asami from such land. After ejectment of the asami, the applicant shall erect a building thereon within three years of the date of the order of .ejectment. If the bhumidhar does not file an applicati!lll !or ejectmellt or if the order of ejectment passed on any applicatmn is not executed within . the prescribed period of. lit1litation, the asami shall become a sirdar of the lauv. The rigi1ts, title and\n\ninterest of the bhumidhar shall be deemed to have been acquired\n\nunder s. 10, \"as if the lilumidhar were an intermediary on the date of vesting.\" If the bhumidhar fails to erect buildings within three years, he shall be liable to pay to the asami or any persoo claiming through him an amount equal to live timos tho rent payable by asami at the time of his ejectm.ont.\n\nAccording to s. 24 an intermediary whose right, title or interest in any agricultural area is acquired under the Act shall be entitled to receive compensation as provided for therein.\n\nRules have been framed under the Act. They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957. Rule 38 provides for stay, inter alia, of suits and appeals arising under s. 180 of the U.P. Tenancy Act or of a similar nature pending in a civil coun. Ruic 39 provides for abatment of such suits and appeals. In the pre!!!nt case the\n\nsecond appeals and the suits from. which they had arisen were abated under this rule tly the High Coun.\n\nSection 2(6) of the U.P. Tenancy Act, 1939 defines \"groveland\" as meaning \"any specific piece of land in a mahal or mahals: having trees planted thereon in such numbers that they preclude, or when full grown will preclude the land or any considerable portion thereof trom being used primarily for any other purpose, and the trees on such land consti'!ute a grove.\" Section 2(7) defines the word \"holding\". It means a parcel or parcels of land held under one lease. Section 2(10) defines the word \"land\" as meaning land which is let or held for growing of crops, or as grove-land or for pasturage. It does not include land for the time\n\nbeing occupied by buildings or appunenant thereto other than the buildings which are improvements. The word \"grove-holder\" is defined in s. 205 of the said Act. A person who has planted a grove on land which was let or granted to him by a landlord for the purpose of planting a grove is called a \"grove-holder\" of the\n\ngrove.\n\nThe first argumcwt of Shri Garg i~ that the lease involved in these cases was a. lease for the purpose. of erecting buildings and that accordingly it falls within the purview of cl. (d) of sub-section\n\n(1) of s. 2 of the Act. It is urged that cl. (d) is violative of.\n\nArticles 14, 19 and 31 of the Constitution and is invalid. On that premise being correct, it is further said that the land in dispute will not be an agricultural area within the mear\\ing of the said expression under the Act. Consequently, the notification of the State Government acquiring the land in dispute is invalid.\n\nThe lease is \"for the purpose of planting a grove, erecting buildings and digging well etc.\" It may be observed that the lease is. not an exclusively building lease. Instead of erecting buildings.\n\nthe lessee could plant a grove. Admittedly no buildings have been A constructed.\n\nThe case of the respondents was that Bateshwar Dayal had planted a grove.\n\nIf Bateshwar Dayal had planted a grove and if the grove was existing on the date specified under s. 2 of the Act and was then being used by the respondents as a grove, the land in dispute would b¢ covered bys. 2(l)(c)(vili) of the f>ct. In that event it will be out of the purview of s. 2 (1) B ( d) of the Act. As the lease is liable to be placed under either of these two classes, it will not be correct to place it exclusively under cl. (d).\n\nThe Act as a whole is protected by Article 3 lA of the Constitution. Shri Garg's contention, however, is that as s. 2 (1) ( d) is not at all connected with agricultural reforms, it cannot receive the protection o.f Article 3 lA and will be open to challenge for violation of Articles 14, 19 and 31. In terms s. 2(l)(d) does not appear to be connected with the object of agricultural reform.\n\nBut a close scrutiny of its context and the object of the Act would reveal that it is so connected.\n\nAll other clauses of s. 2 (1) except cl. ( d) are clearly connected with the object of agriculiural reform.\n\nThey include in an \"agricultural area\" only such land as is being used for growing crop or as a grove or as a pasture land on the date specified in s. 2(1). The proviso to s. 2(1)(c) expressly exch1des from \"agricultural area\" land which is occupied by buildings, not being improvements, and land appurtenant to such buildings. Having regard to this proviso, it is difficult to believe that s. 2 ( 1 )( d) was intended by the legislature to apply to land which is not an agricultural area. \"Agriculture\" means \"the science and the art of cultivating the soil; including the gathering in ol' the crops, and the rearing of live-stock; farming (in the widest sense)\". (Shorter Oxford Dictionary, 3rd Edn. Vol. I, p.37). So, ordinarily \"agricultural area\" would mean an area used for cultivation or farming.\n\nSection 2 (1) includes groves also.\n\nClause ( d) should take its colour from this inherelJI meaning of \"agricultural area\" which is being defined in s. 2 (1). .\n\nSection 17 (1) confers bhumidhari rights on certain classes of persons over certain kinds of lands.\n\nSection 17 ( 1) has two clauses (a) and (b).\n\nLands specified in cl. (a) are used for growing crops or as a grove. It is significant to observe the difference between the language of s. 2 ( 1 ) ( d) and s.17 ( 1) ( b) . While section 2(1 )( d) refers to \"agricultural area\", section 17 (1 )(b) is exnressly limited to \"lands in agricultural area held on lease .. for the purpose of erecting buildings thereon.\" As the subject matter of s. 2(1 )( d) and s. 17 (1 )(b) should be identical, it appears to us that the expression \"agricultural area\" in s. 2(1 )( d) should be construed as \"lands in agricultural area\". If the dcfinic\n\ntion of \"land\" in the U.P. Tenancy Act is _applied to s.17(1), as it should be, section 17 (I )(b) will confer bhumidhari rights on a lessee of land which is used for growing crops or as a grove or as a pasture land although the lease may have been granted for erecting buildings. The marginal note to the section supports this construction.\n\nSection 19(j) provides that a sub-lessee from a person \"holding land under a lease referred to in cl. (b) of sub-section ( 1) of s. 17''. shall be an asami.\n\nThis provision also shows that the agricultural area referred to in s. 2 ( 1) ( d) should on the relevant date bie used for growing crops or as a grove or as a pasture land. c It is not possible to take the view thats. 2(l)(d) compasses\n\na wider geography than s. 17 ( 1) (b). Such a COJ!Struction would create an anomaly. The lessee would become bhurnidhar of only such portion of the land as is being used for growing crops or as a grove or as a pasture land. The rest of the agricultural area let out to him for the purpose of erecting buildings would vest in the Government. But he would get no compensation for that portion, for under s. 24 compensation is payable only to an intermediary. But he is not an \"intermediary\" as defined ins. 2(7), nor a sub-intermediary as dejlned in s. 2( 14). He is deemed to be an intermediary for a limited purpose under s. 20( 4) but that provision is not material for our purpose. This anomaly will not result if \"agricultural area\" in s. 2( 1) ( d) and 'land in an agricultural' area in s. 17 ( 1) (b) are construed as perfec!ly over-lapping.\n\nThe preamble to the Act shows that the obje,:t of the Act is to acquire right, title or interest of intermediaries between the tiller of the soil and the State and for the introduction of land reforms therein.\n\nHaving regard to the context already pointed F out and this object of the Act it seems to us that s. 2(1) (d), though apparently expressed in wide language, is limited to lands which are on the relevant date being used for growing crops or as grove or as pasture land. It does not apply to lands which are not being so used.\n\nThe history of the framing of s. 2 ( 1) ( d) fortifies this inference.\n\nThe Bill which consummated in the Act was introduced in the Legislative Assembly on August 6, 1955. It was referred to a Joint Select Committee. The Joint Select Committee's report and the Bill as amended by it were published in lhe Uttar Pradesh Gazette, dated February 4, 1956. Clause (d) of s. 2(1) was\n\nincorporated in the amended Bill by the Joint Select Committee.\n\nIt read as follows :\n\n\"held on a lease duly executed before the first day of July, 1955 for the purpose of erecting buildings thereon, but which is being\n\nused for the purposes of agriculture either by the holder thereof\n\n7~2 SUPREME COUR'.l' REPORTS 11973] 3 s.c.R.\n\nor by any person claiming under him.\" . Clause ( d) was passed in this form by 'the Legislative Assembly on December 3, 1956. The\n\nBill then went to the Legislative Council. But before reaching there it was pruned by the Secretary of. the Assembly.· He deleted the last part of cl.· ( d) as passed by the Legislative Assembly. The Legislative Council passed cl. ( d) as pruned by the Legislative Secretary. Thereafter the Bill received the assent of the Governor B and of the President. It seems that the Secretary thought that the deleted portion of cl. (d) was redundant; and so he eliminated it.\n\nJn Durga Prasad versus Board of Revenue U.P. Allahabad and . others, ('1) the Allahabad High Court has pointed out 'this history of cl. ( d). The High Court has taken the view that s. 2 ( 1 )( d) is limited to lands which are being used for agricultural purposes.\n\nWe have come to the same conclusion though for different reasons . . On this construction of s. 2 ( 1 )( d) it cannot be said that this provision is not connected with agricultural refo.rms.\n\nIt would accordingly receive the protection of Art. 3 lA and would be immune from attack on d1e ground of violation of Articles 14, 19 and 31.\n\nIt would follow from the foregoing discussion that only such lands as are being used for growing crops or as grove or as pasture land may be acquired under the Act. It is alleged in the writ petition that the land in dispute is a part of kothi Babu Wali and was not used for agricultural purposes.\n\nThe petition mentions the.old number of the plot which was 5199. The new number of the plot is 4635A. The State Government has filed a counteraffidavit. They have assumed that the petition refers to the plot now given the new number 5199. The counter-affidavit does not deal with the disputed plot now numbered 4635A. But the description of the plot in disoute given in the petition leaves no room for. doubt about the identity of. the olot. It is strange that the counter-affidavit did not squarely deal with the allegations in the petition .. The appellants' allegation that the land in dispute is non-agricultural land and forms oart of a residential kothi remains unanswered in the counter-affidavit. ·\n\nIn the suit the respondent's case was that Bateshwar Dayal, their predecessor-in-interest. had planted a grove on the land in dispute. The trial court had aooointed a Commissioner for finding out whether there stood a . grove on the land in dispute. On October 16, 1956, the Commi<sioner submitted his renort to the trial: court. It appears from his report that about a half of the plot towards the western side was then \"quite vacant.\". On the western boundary cf the plot there stood two sheesham and three mango trees; on. the northern boundary_ of the plot there were four\n\n(I) AJ.R. 1970 All 159.\n\nguava trees, one plum tree and a thorny tree. In the eastern half of the plot there were about 18 or 19 \"scattered guava trees\" Trees standing on the boundary of the plot will not prevellt the use of the land for a purpose other than grove. The western half could be used for any other 1mrpose. In the eastern half the 18 or 19 \"scattered\" guava trees could apparently not prevent the use of the land for any other purpose. The report of the Commissioner would not show that the land in dispute was a grove within the meaning of s. 2(6) of the U.P. Tenancy Act, 1939.\n\nAs the appellants had given the old number of the plot in their petition, the Government did not reply to the allegations in the petition. Accordingly, it is not possible to express any concluded opinion on ihe question whether the land in dispute was an \"agricultural area\" on the date specified under s. 2 ( l) and was being used for horticulture.\n\nThe issue should now be decided afresh b'y the appropriate authority under the Act.\n\nIn the result, we allow the writ petition and quash the Governc ment notification under s. 8 of. the Act, dated June 16, 1964 with respect to the land in dispute.\n\nWe direct the Government to proceed afresh with respect to the land in dispute in accordance with ss. 3, 4, 5 and 8 of th Act. If it is found in the course of enquiry under ss. 3, 4, and 5 •that the land in dispute was an \"agricultural area\" and was being used for agriculture or horticulture on the relevant date, it will be open to 1he Government to issue a notification with respect to it under s. 8.\n\nIf, on the other hand, it is found in that enquiry that it was not an \"agricultural-area'' on the said date, no notification under s. 8 should be issued with respect to it. The appeals are also allowed. The orders of the High Court abating the appeals and the suits are set aside.\n\nThe High Court will restore the appeals and the suits to their original numbers.\n\nThe appeals will be decided on merits when the appropriate authority under s. 5 of the Act has held that the land in dispute is not an \"agricultural area\". If it is held by him •that the land in dispute is an \"agricultural area\" and the State Government issues a notification under s. 8 of the Act with respect to the land, the appeals will be disposed of in accordance with the provisions of the Act. In the circumstances of this case parties shall bear their own costs.\n\nG.C.\n\nAppeals allowed.\n\nJ.-LJ97Sup.Cl/71", "total_entities": 156, "entities": [{"text": "S. P. WATEL AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "S. P. WATEL AND OTHERS", "offset_not_found": false}}, {"text": "STATE OF U.P", "label": "RESPONDENT", "start_char": 24, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "March 28, 1973", "label": "DATE", "start_char": 63, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "S. P. WATEL AND OTHERS\n\nSTATE OF U.P. (with connected appeals) March 28, 1973\n\n[S. M. S!KRI C. J., A. N. RAY, 0."}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 99, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "0. G. PALEKAR", "label": "JUDGE", "start_char": 110, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR", "offset_not_found": false}}, {"text": "S. N. DWIVEDI", "label": "JUDGE", "start_char": 125, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956", "label": "STATUTE", "start_char": 172, "end_char": 230, "source": "regex", "metadata": {}}, {"text": "s. 2(1 )(d)", "label": "PROVISION", "start_char": 323, "end_char": 334, "source": "regex", "metadata": {"linked_statute_text": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956", "statute": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 444, "end_char": 450, "source": "regex", "metadata": {"linked_statute_text": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956", "statute": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 547, "end_char": 551, "source": "regex", "metadata": {"linked_statute_text": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956", "statute": "Urhan Areas Zamindari Abolition and Land Reforms Act, 1956"}}, {"text": "Abolition and Land Reforms Rules 1957", "label": "STATUTE", "start_char": 677, "end_char": 714, "source": "regex", "metadata": {}}, {"text": "Lala Nanak Chand Trust", "label": "ORG", "start_char": 842, "end_char": 864, "source": "ner", "metadata": {"in_sentence": "4635A (old number 5199) admeasusing 1 bigha and 2 hiswas and located in the Meerut municipal area was leased by the Lala Nanak Chand Trust to the predecessor-in-interest of the present respondents."}}, {"text": "June 23, 1926", "label": "DATE", "start_char": 959, "end_char": 972, "source": "ner", "metadata": {"in_sentence": "According to the lease deed dated June 23, 1926 the lease was granted \"for the purpose of planting a grove, erecting buildin!"}}, {"text": "July l, 1956", "label": "DATE", "start_char": 1303, "end_char": 1315, "source": "ner", "metadata": {"in_sentence": "On the expiry of the initial period of 30 years on July l, 1956 the lessor Trust instituted a suit for recovery of possession of the alforesaid land."}}, {"text": "Abolition and Land Reforms Act, 1956", "label": "STATUTE", "start_char": 1947, "end_char": 1983, "source": "regex", "metadata": {}}, {"text": "Meerut", "label": "GPE", "start_char": 2012, "end_char": 2018, "source": "ner", "metadata": {"in_sentence": "While these appeals were pending the U.P. Urban Areas Zamin- <lari Abolition and Land Reforms Act, 1956 was enforced in the city of Meerut."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 2116, "end_char": 2120, "source": "regex", "metadata": {"linked_statute_text": "Abolition and Land Reforms Act, 1956", "statute": "Abolition and Land Reforms Act, 1956"}}, {"text": "July 16, 1964", "label": "DATE", "start_char": 2177, "end_char": 2190, "source": "ner", "metadata": {"in_sentence": "vesting the land in the State was issued on July 16, 1964."}}, {"text": "Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "label": "STATUTE", "start_char": 2207, "end_char": 2281, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2531, "end_char": 2538, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 2595, "end_char": 2599, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "Articles 14, 19(1)", "label": "PROVISION", "start_char": 2659, "end_char": 2677, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "s. 2(1)(d)", "label": "PROVISION", "start_char": 2740, "end_char": 2750, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 2948, "end_char": 2955, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "s. 2(1)(c)(viii)", "label": "PROVISION", "start_char": 3169, "end_char": 3185, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "s. 2(1)(d)", "label": "PROVISION", "start_char": 3250, "end_char": 3260, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957", "statute": "the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957"}}, {"text": "Durga Prasad", "label": "OTHER_PERSON", "start_char": 3282, "end_char": 3294, "source": "ner", "metadata": {"in_sentence": "(ii) In Durga Prasad's case the Allahabad High Court has pointed out the history of cl. ("}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3306, "end_char": 3326, "source": "ner", "metadata": {"in_sentence": "(ii) In Durga Prasad's case the Allahabad High Court has pointed out the history of cl. ("}}, {"text": "s. 2(1)(d)", "label": "PROVISION", "start_char": 3406, "end_char": 3416, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(l)(d)", "label": "PROVISION", "start_char": 3582, "end_char": 3592, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14, 19 and 31", "label": "PROVISION", "start_char": 3796, "end_char": 3818, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 2(6)", "label": "PROVISION", "start_char": 4033, "end_char": 4040, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 4053, "end_char": 4070, "source": "regex", "metadata": {}}, {"text": "s. 2( 1)", "label": "PROVISION", "start_char": 4376, "end_char": 4384, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 4625, "end_char": 4629, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4961, "end_char": 4971, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4979, "end_char": 5000, "source": "regex", "metadata": {}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 5264, "end_char": 5274, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwal for the petitioners (in writ petition) and for the ppellants (in appeals)\n\nG. N. Dikshit and 0."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 5279, "end_char": 5292, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwal for the petitioners (in writ petition) and for the ppellants (in appeals)\n\nG. N. Dikshit and 0."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 5368, "end_char": 5381, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwal for the petitioners (in writ petition) and for the ppellants (in appeals)\n\nG. N. Dikshit and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 5386, "end_char": 5396, "source": "ner", "metadata": {"in_sentence": "R. K. Garg and S. C. Agarwal for the petitioners (in writ petition) and for the ppellants (in appeals)\n\nG. N. Dikshit and 0."}}, {"text": "C. B. Agirrwala", "label": "LAWYER", "start_char": 5440, "end_char": 5455, "source": "ner", "metadata": {"in_sentence": "for the respondents (in writ petition) ·\n\nC. B. Agirrwala and M. M. Kshatrlya, for the respondents (in appeals)."}}, {"text": "M. M. Kshatrlya", "label": "LAWYER", "start_char": 5460, "end_char": 5475, "source": "ner", "metadata": {"in_sentence": "for the respondents (in writ petition) ·\n\nC. B. Agirrwala and M. M. Kshatrlya, for the respondents (in appeals)."}}, {"text": "DwlvEDI", "label": "JUDGE", "start_char": 5557, "end_char": 5564, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered 1fy\n\nDwlvEDI, J.-These three cases have a common origin and are accordingly."}}, {"text": "Bateshwar Dayal", "label": "OTHER_PERSON", "start_char": 6143, "end_char": 6158, "source": "ner", "metadata": {"in_sentence": "On June 23, 1926, a lease deed was executed on behalf of the trust and in favour of one Bateshwar Dayal.", "canonical_name": "Bateshwar Dayal"}}, {"text": "June 1, 1926", "label": "DATE", "start_char": 6422, "end_char": 6434, "source": "ner", "metadata": {"in_sentence": "The lease was a for a terms of 30 years with effect from June 1, 1926."}}, {"text": "July 1, 1956", "label": "DATE", "start_char": 6894, "end_char": 6906, "source": "ner", "metadata": {"in_sentence": "c\n\nThe initial period of 30 years expired on July 1, 1956."}}, {"text": "Bateshyar Dayal", "label": "OTHER_PERSON", "start_char": 7061, "end_char": 7076, "source": "ner", "metadata": {"in_sentence": "Durin pendency of this suit Bateshyar Dayal died on March 6, 1958.", "canonical_name": "Bateshwar Dayal"}}, {"text": "March 6, 1958", "label": "DATE", "start_char": 7085, "end_char": 7098, "source": "ner", "metadata": {"in_sentence": "Durin pendency of this suit Bateshyar Dayal died on March 6, 1958."}}, {"text": "October 24, 1958", "label": "DATE", "start_char": 7146, "end_char": 7162, "source": "ner", "metadata": {"in_sentence": "The suit was dismissed by the trial court on October 24, 1958."}}, {"text": "November\n\n30, 1959", "label": "DATE", "start_char": 7222, "end_char": 7240, "source": "ner", "metadata": {"in_sentence": "It was, however, decreed by the first appellate court on November\n\n30, 1959."}}, {"text": "Bhagwat Dayal", "label": "PETITIONER", "start_char": 7432, "end_char": 7445, "source": "ner", "metadata": {"in_sentence": "Bhagwat Dayal and others, heirs of Bateshwar Dayal, then instituted suit No.", "canonical_name": "Bhagwat Dayal"}}, {"text": "October 30, 1961", "label": "DATE", "start_char": 7797, "end_char": 7813, "source": "ner", "metadata": {"in_sentence": "This plea was upheld by the trial court and the suit was dismissed on October 30, 1961."}}, {"text": "March 23, 1962", "label": "DATE", "start_char": 7885, "end_char": 7899, "source": "ner", "metadata": {"in_sentence": "the decree of the trial court on March 23, 1962."}}, {"text": "January 5, 1960", "label": "DATE", "start_char": 8052, "end_char": 8067, "source": "ner", "metadata": {"in_sentence": "Bhagwat Dayal and others filed a secQnd appeal in the Allahabad High Court against the judgment and decree passed in c the suit filed by the Trust on January 5, 1960."}}, {"text": "April 23, 1962", "label": "DATE", "start_char": 8155, "end_char": 8169, "source": "ner", "metadata": {"in_sentence": "They also filed a\n\nsecond appeal against the judgment and decree in their own suit on April 23, 1962."}}, {"text": "Urban Area Zamindari Abolition and Land Reforms Act, 1956", "label": "STATUTE", "start_char": 8217, "end_char": 8274, "source": "regex", "metadata": {}}, {"text": "June 16, 1964", "label": "DATE", "start_char": 8455, "end_char": 8468, "source": "ner", "metadata": {"in_sentence": "Thereafter a notification was issued on June 16, 1964 under s. 8 of the Act vesting the land in the State."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 8475, "end_char": 8479, "source": "regex", "metadata": {"linked_statute_text": "Urban Area Zamindari Abolition and Land Reforms Act, 1956", "statute": "Urban Area Zamindari Abolition and Land Reforms Act, 1956"}}, {"text": "Bhagwat Dayal", "label": "PETITIONER", "start_char": 8523, "end_char": 8536, "source": "ner", "metadata": {"in_sentence": "Bhagwat Dayal then moved an application Q!efore the High Court for abating the two appeals as well as the two suits out of which those appeals had arisen in accordance with the provisions of the Act.", "canonical_name": "Bhagwat Dayal"}}, {"text": "July 25, 1968", "label": "DATE", "start_char": 8814, "end_char": 8827, "source": "ner", "metadata": {"in_sentence": "The order was made on July 25, 1968."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9088, "end_char": 9092, "source": "regex", "metadata": {"linked_statute_text": "Urban Area Zamindari Abolition and Land Reforms Act, 1956", "statute": "Urban Area Zamindari Abolition and Land Reforms Act, 1956"}}, {"text": "Articles 14, 19", "label": "PROVISION", "start_char": 9474, "end_char": 9489, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 9865, "end_char": 9878, "source": "ner", "metadata": {"in_sentence": "The preamble to the Act states that it is expedient to provide for the abolition of Zarnindari system in agricultural areas situate in urban areas in Uttar Pradesh and \"for the acquisition of the rights, title and interest of ."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 10073, "end_char": 10082, "source": "regex", "metadata": {"statute": null}}, {"text": "Avadh", "label": "GPE", "start_char": 10619, "end_char": 10624, "source": "ner", "metadata": {"in_sentence": "\"Agricultural area\" as respects any uran area means an area which, with reference to such date as the State Government may notify in that behalf, is-\n\n\" (a) in the possession of or held or deemed to be\n\nheld by an intermediary as sir, khudkasht or an intermediary's grove;\n\n(b) held as a grove by or in the personal cultivation\n\nof a permanent lessee in Avadh; or ( c) included in the holding of-\n\n( i) a fixed-rate tenant,\n\n(ii) an ex-proprietary tenant,\n\n(iii) an occupancy tenant,\n\n(iv) a tenant holding on special terms in Avadh."}}, {"text": "section 4", "label": "PROVISION", "start_char": 10976, "end_char": 10985, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act, 1938", "label": "STATUTE", "start_char": 11001, "end_char": 11018, "source": "regex", "metadata": {}}, {"text": "Section 30", "label": "PROVISION", "start_char": 11110, "end_char": 11120, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1938", "statute": "Tenancy Act, 1938"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 11133, "end_char": 11150, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11349, "end_char": 11358, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 11372, "end_char": 11389, "source": "regex", "metadata": {}}, {"text": "first day of July, 1955", "label": "DATE", "start_char": 11521, "end_char": 11544, "source": "ner", "metadata": {"in_sentence": "d) held on a lease duly executed before the first day of July, 1955 for the purposes of erecting buildings thereon; or ( e) held or occupied by an occupier ...... \" Section 2(7) defines an \"intermediary\", inter alia, as a proprietor of an agricultural area."}}, {"text": "Section 2(7)", "label": "PROVISION", "start_char": 11642, "end_char": 11654, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 2(12)", "label": "PROVISION", "start_char": 11735, "end_char": 11748, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 2(16)", "label": "PROVISION", "start_char": 11853, "end_char": 11866, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 12008, "end_char": 12025, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12029, "end_char": 12038, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 12101, "end_char": 12110, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12326, "end_char": 12330, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 12332, "end_char": 12341, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12408, "end_char": 12412, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 10", "label": "PROVISION", "start_char": 12717, "end_char": 12727, "source": "regex", "metadata": 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"regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 15954, "end_char": 15959, "source": "regex", "metadata": {"statute": null}}, {"text": "They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957", "label": "STATUTE", "start_char": 16164, "end_char": 16261, "source": "regex", "metadata": {}}, {"text": "s. 180", "label": "PROVISION", "start_char": 16337, "end_char": 16343, "source": "regex", "metadata": {"linked_statute_text": "They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957", "statute": "They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957"}}, {"text": "Section 2(6)", "label": "PROVISION", "start_char": 16604, "end_char": 16616, "source": "regex", "metadata": {"linked_statute_text": "They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957", "statute": "They arc known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land c Refonn Rules, 1957"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 16629, "end_char": 16646, "source": "regex", "metadata": {}}, {"text": "Section 2(7)", "label": "PROVISION", "start_char": 16969, "end_char": 16981, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Section 2(10)", "label": "PROVISION", "start_char": 17069, "end_char": 17082, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 205", "label": "PROVISION", "start_char": 17377, "end_char": 17383, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 17594, "end_char": 17598, "source": "ner", "metadata": {"in_sentence": "The first argumcwt of Shri Garg i~ that the lease involved in these cases was a. lease for the purpose."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17776, "end_char": 17780, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14, 19 and 31", "label": "PROVISION", "start_char": 17836, "end_char": 17858, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18611, "end_char": 18615, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18798, "end_char": 18802, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 18995, "end_char": 19004, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 19073, "end_char": 19077, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 19175, "end_char": 19184, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14, 19 and 31", "label": "PROVISION", "start_char": 19235, "end_char": 19257, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 2(l)(d)", "label": "PROVISION", "start_char": 19268, "end_char": 19278, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 19474, "end_char": 19478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 19710, "end_char": 19717, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)(c)", "label": "PROVISION", "start_char": 19734, "end_char": 19744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", 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"metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 20905, "end_char": 20915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1 )( d)", "label": "PROVISION", "start_char": 21066, "end_char": 21078, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 21083, "end_char": 21088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1 )( d)", "label": "PROVISION", "start_char": 21178, "end_char": 21190, "source": "regex", "metadata": {"statute": null}}, {"text": "s.17(1)", "label": "PROVISION", "start_char": 21314, "end_char": 21321, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 21340, "end_char": 21350, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19(j)", "label": "PROVISION", "start_char": 21603, "end_char": 21616, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 21732, "end_char": 21737, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21829, "end_char": 21833, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 22022, "end_char": 22027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 22401, "end_char": 22406, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2( 14)", "label": "PROVISION", "start_char": 22547, "end_char": 22556, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20( 4)", "label": "PROVISION", "start_char": 22621, "end_char": 22630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2( 1)", "label": "PROVISION", "start_char": 22738, "end_char": 22746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 22790, "end_char": 22795, "source": "regex", "metadata": {"statute": null}}, {"text": "Having regard to the context already pointed F out and this object of the Act", "label": "STATUTE", "start_char": 23058, "end_char": 23135, "source": "regex", "metadata": {}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 23156, "end_char": 23163, "source": "regex", "metadata": {"linked_statute_text": "Having regard to the context already pointed F out and this object of the Act", "statute": "Having regard to the context already pointed F out and this object of the Act"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23414, "end_char": 23418, "source": "regex", "metadata": {"linked_statute_text": "Having regard to the context already pointed F out and this object of the Act", "statute": "Having regard to the context already pointed F out and this object of the Act"}}, {"text": "August 6, 1955", "label": "DATE", "start_char": 23540, "end_char": 23554, "source": "ner", "metadata": {"in_sentence": "The Bill which 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"metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 25054, "end_char": 25058, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 25200, "end_char": 25206, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14, 19 and 31", "label": "PROVISION", "start_char": 25272, "end_char": 25294, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "October 16, 1956", "label": "DATE", "start_char": 26557, "end_char": 26573, "source": "ner", "metadata": {"in_sentence": "On October 16, 1956, the Commi<sioner submitted his renort to the trial: court."}}, {"text": "s. 2(6)", "label": "PROVISION", "start_char": 27436, "end_char": 27443, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 27456, "end_char": 27473, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 27779, "end_char": 27783, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 28000, "end_char": 28004, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "ss. 3, 4, 5 and 8", "label": "PROVISION", "start_char": 28174, "end_char": 28191, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "ss. 3, 4", "label": "PROVISION", "start_char": 28249, "end_char": 28257, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1939", "statute": "Tenancy Act, 1939"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 28474, "end_char": 28478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 28612, "end_char": 28616, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 28920, "end_char": 28924, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 29127, "end_char": 29131, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_794_801_EN", "year": 1973, "text": "GAJRAJ SINGH\n\nTHE STATE OF MADHYA PRADESH & ANR.\n\nMarch 28, 1973\n\n[J. M. SHELAT, ACTING C.J. AND Y. V. CHANDRACHUD, J.]\n\nConstitution, art. 311-Madhya Bharat-Retrenchment Terms in respect of employees of former States merging to form new State-Employees of certain categories provisionally absorbed-Could be retrenched for certain specified reason~When employee is retrenched for one or more of such reasons Art. 311 Is not attracted-Tests ar< obiectlve orul retrenchn1e11t order can be 'defended on otner grounds even if one ground falls.\n\nThe appellant was in 1934 first appointed as a constable in the erstwhile State of Gwalior and was promoted in 1945 to the post of Sublnspector.\n\nIn May 1948 the rulers of Gwalior, Indore and certain other States formed und<lr a covenant executed by them, a new State, called the\n\nUnited States of Madhya Bharat. The appellant was allowed to work as\n\na Sub-Inspector in the new State of Madhya Bharat but his name wa' e.1'!ered from the very beginning, that is from May 1948, in the list of D provisionally absorbed servants,' and remained so during all material times.\n\nBy n notification, dated December 15, 1948, the Madhya Bharat Government published rules, called the 'Retrenchment Terms' which were revised by another notification dated July 9, 1949. In the said notification principles were laid down for the selection of Government Servants for ro trenchment. The appellant was retrenched by an order signed by the Deputy Inspector-General, Central Range, on the ground that the appellant had a consistent bad record under re!renchment category 2 of the Re E trenment Terms.\n\nIn appeal the Inspector-General corillrmed the said order also under categories 4 and 7 of the said Terms, that is, besides the ground of a consistently bad record, also on the ground df the appellant not possessing the minimum qualification prescribed for the post, and on the ground that the appellant for reasons considered adequate by the Government, could not be absorbed in the Madhya Bharat service. The writ petition filed by the appellant challenging this order was dismissed by the High Court on the ground of delay, though Art. 311 of the Constitu- F tion was held to be attracted. In 1960 the appellant filed a suit relying on Art. 311. The trial court decreed the suit. The High Court however allowed the State'• appeal. By special leave the appellant appealed to this Court and contended: (i) that on the construction of the said Retrenchment Terms the impugned order amounted to one of dismissal, attracting the provisions of Art. 311; and (ii) that since the ground of consistent bad record amounted to a stigma, and could not therefore be C relied on in support of the order, the order fell and could not be sustain- -. cd on the ground of lack of minimum educational qualification.\n\nDismissing the appeal,\n\nHELD: (i) The classification of persons in the seven categories was clearly made to select persons 'from out of those who were in excess of the requirements of the new State.\n\nSince they were not to be absorbed, they could not be said to have been the employees of the new State and H Art. 311 therefore could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that rc,1son Art. 311 was attracted was clearly misconceived.\n\n[SOIB]\n\n(ii) The respondent-State hild relied upon the cateaories 2, 4 and 7, as ground for the impugned order. So far as category 4 was concerned, there can be no doubt that the appellant did not have the minimum educa tional qualification required for the post of a Sub-Inspector. Since that was so, he would also fall in cateaory No, 7, that is, as a person who could not, for reasons considered adequate by 'the Government, be ab sorbed in the service of the new State. Eve\" if therefore, category 2 could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. ·; he mere fact that the Government could not avail of cateaory 2 did not mean that it could not rely on the other two grounds. The reason is that this was not a cnse of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds. The tests here were objective ones and if one of the several such test11 failed, but the others were sufficient, the order would still have to be susmined. [SOIE]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1259 of 1967.\n\nAppeal by special leave from the judgment and order dated December 20, 1966 of the Madhya Pradesh High Court, Indor~\n\nBench in First Appeal No. 61 of 1962.\n\nRameshwar Nath, for the appellant.\n\nRam Panjwani, I. N, Shroff and fl. S. Parihar, for the rcspon dents.\n\nThe Judgment of the Court was delivered by\n\nSHELAT, ACTING C.J.-The appellant was in 1934 first appointed as a police constable in the erstwhile State of Gwalior and was promoted in March 1945 to the post of a Sub-Inspector. In May 1948, the rulers of Gwalior, Indore and certain other States formed, µnder a covenant executed by them, a new State, called the United States of Madhya Bharat. The appellant was allowed to work as a Su~-Inspector in the new State of Madhya Bharat, but his name was entered from the very beginning, that is from May 1948, in the list of \"provisionally absorbed servants\", and remained so during all material times.\n\nBy a notification, dated December Hi, 1948, the Madhya Bharat Government published rules, called the \"Retrenchment Terms\". As revised by another notification, dated July 9, 1949, these Retrenchment Terms so far as they are relevant for the purposes of this appeal read as under :\n\n\"Government of the United State of Madhya Bharat:\n\n• • • •\n\nNOTIFICATION After a careful consideration of the Mohan Rau Committee's recommendations regarding the retrench-\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll.\n\nment ct surplus staff of the acceding States of the Madhya Bharat Union and compensation terms to be offered to such staff, the Government of Madhya Bharat have been pleased to sanction tile following principles which will govern the selection of Government servants for discharge from service and tile grant of compensation to them. Owing to wide diversity of rules relating to leave and pension in force in the various acceding Units of Madhya Bharat, the Government are constrained to frame a separate set of rules, modelled on the tenns sanctioned by the Government of India to their retrenchment personnel. . The Government are aware that cessation of employment is bound to cause distress and in order to soften the blow, as far as possible, they have kept in view the need for providing each retrenched servant with a reasonable subsistence which would enable him to tide over the period necessary for building up new associations :\n\nI. Principles to govern the selection of Government Servants for retrenchment :\n\n(a) The retrenchment should embrace 'the fol!owinir\n\ncategories :\n\n(I) Those who have attained the age of superannuation.\n\nNote:-The age of superannuation-shall be taken as 55 years for Government servants in superior service and 60 years for those in inferior service.\n\n(2) Those whose record of service is consistently bad.\n\n(3) Temporary and officiatin)!\n\nGovernment servants.\n\n( 4) Those who do no'l possess the minimum qualification prescribed for 1he post held by them.\n\n\"lote;-It will be the right of Government to retain an exceptionally good person even though be may not be possessed of the minimum qualification prescribed.\n\n( 5) Those who have put in qualifying service for 30 years and more.\n\nGAJRAJ V, M.P. STATE (Shela!, Acting C.J.) 797\n\n( 6) Permanent Government servants who have less. than 3 years' service.\n\n(7) Government servants who are treated as surplus to requirements either because the posts held by them have ceased to exist, or because they cannot, for reasons considered adequate by the Government, be absorbed in Madhya Bharat service .\n\n* • • •\n\nThese orders shall have effect from the 1st of July, 1948.\"\n\nWhile the appellant was working at Bhilsa as the sub-inspector, he received an order signed by the Deputy Inspector-General, Central Range, to the effect that the appellant was \"retrenched .. for consistent bad record under retrenchment category 2\" of the said Retrenchment Terms.\n\nThe order, however, informed the D appellant that he would be given all the benefits of leave, pension etc. due to him under the Rules.\n\nAggrieved by the said order, the appellant filed an appeal before the Inspector-General of Police.\n\nThe Inspector-General issued a notice to the appellant to show cause why the said order should not be made absolute under category 2, as also under categories 4 and 7 of the said E Retrenchment Terms.\n\nThe appellant submitted his explanation showing cause.\n\nBy his order, dated January 2, 1954, the Inspector-General rejected the appeal and confirmed the said order, also under categories 4 and 7 of the said Terms, that is, besides the ground of a consistently bad record, also on the ground of the appellant not possessing the minimum qualification prescribed for F the post, and the ground that the appellant, for reasons considered adequate by the Government, could not be absorbed in the Madhya Bharat service.\n\nResort to departmental authorities for redress against the said order having failed, the appellant filed a writ petition in the High Court of Madhya Pradesh, pleading inter-alia that the impugned order amounted to removal by way of punishment which attracted Art. 311 of the Constitution. On October 22, 1959, the High Court dismissed the writ petition on the ground of delay. Nevertheless, the Hi2h Comt weDt into the question whether the said order amounted to dismissal or removal and attracted Art. 311.\n\nIn doing so, the High Court observed that although the order was\n\nsoue:ht to be sunnorted both on •he !(f()und of the aooellant'~ consistent Iliad record, aS also on the ground of his not possessing the minimum. educational qualification. the State had relied on the first ground only, the second ground not having been pressed either\n\nin its return or in the argument before the High Court. The High A Court observed :\n\n\"~ result is that the adminiStration having gone into the question •Of undersirability or consistent badness of the record, was, under the law obliged to follow the procedure prescribed in Article 311. Having admittedly failed to do so, the removal order, though ostensibly one of trenchment, would be bad.\"\n\nThe High Court also observed that had the appellant a approached it without delay, it would have been possible to grant him relief.\n\nIn 1960, the appellant filed the suit, from which this appeal arises, in the Court of the Additional District Judge, Indore for a C declaration that the said order was bad by reason of failure to hold an inquiry under Art. 311 and that he therefore continued to be i:n service and for a decree for the salary for the entire period.\n\nThe Trial Judge decreed the. suit relying upon the aforesaid observations of the High Court in the said writ petition. The State of Madhya Pradesh thereupon filed an appeal before the High Court\n\nagainst the said judgment and decree.\n\nThe Division Bench of the High Court, which i)eard the appeal, had on it coincidently Krishnan, J., who also was one of the judges on the Bench which had earlier dismissed the appellant's said writ petition in 1959.\n\nE The High Court allowed the State's appeal and set aside the decree passed by the Trial Judl!e. This was done on the. ground that in \"retrenching\" the appellant the State had two grounds; ( 1) a consistent bad record, and ( 2) the appellant not possessing the minimum educational qualification, There being thus two grounds,\n\nalthough the impugned order co!J]d not be supported biy. the first ground by reason of the failure to comply with the provisions of Art. 311, the second ground was a good ground and being a F separate ground, the impugned order, on the baSis of that ground, was justified. This appeal, by special leave, challenges the judgment of the Higli Court.\n\nTwo contentions were pressed upon us by counsel . for the . appellant : · ( 1 ) that on the construction of the said retrenchment\n\nTerms the impugned order amounted to one of dismissal attracting the provisions of Art. 311,\n\n(Z)\n\nan<l fliat since the ground of consistent .bad record' amounted to. a stigma, and could not theore be .. ielied on in support .of the prder, the order fell lllJd eould not. be sustlii!Jed on , the second, grouiicf · ·\n\nThe appellant, without doubt, was a permanent servant of the erstwhile Gwalior State and vi,-a-vis that State, was, therefore, entitled to all the rights obtainiible under the law ot that State wha<tever such rights there were thereunder. On the accession of Gwalior State to the United States of Madhya Bharat, his position, however, totally changed, in that, it was for the new State to absorb B him or not into its service. It may be that the covenant, by and under which Gwalior State acceded to the newly formed State, might have provided for the continuance in the service of the new\n\nStll'te of all the employees of the acceding States. The terms of the covenant were not placed before us, nor before the High Court.\n\nAssuming, however, that the covenant did so 1?fOvide, it being one c between the high parties, no right accrued thereunder to an individual who was not a party to it. Obviously, the appellant could not claim any right to being absorbed or continued in the service of the new State, unless the new State had agreed to or absorbed or retained him in its service. In fact, the new State of Madhya Bharat had not done-50. It would appear, on the contrary, that while the question of how many and who amongst the ex-em- D ployees of the acceding States should be absorbed in the service of the new State was pending and under consideration, the appellant's name was entered in the list of \"the provisionally absotbed\" employees.\n\nIt would seem from the said Retrenchment Terms that the E problem before the new State was as to what to do. with the surplus personnel who were the ex-employees of the varioUs acceding\n\nState~ and how many of them could and should be .absorbed in the service of the new State. To soften the blow which would fall on those who could not be absorbed, the new State framed the said Retrenchment Terms which provided two things, ( 1) F laying down principles for selection of those who were to be absorbed, and ( 2) to grant some benefit by way of a reasonable subsistence to those who would not be absorbed, which would enable them to tide over the period necessary for building up new associations. The rerenchment Terms were frruned on the basi& of the recommendations made biY the Mohan Rau Committee, appointed for goins!; into the question of the surplus personnel, G who until then were in the service of the erstwhile acceding States,\n\nsuch as Gwalior. In order to fair and not to be arbitrary in the matter of selection Of ihotlO who were to be absorbed iri the service of the new State, the Retrenchment Tenils laid down seven categories of persons who were not to be absorbed.\n\nu It is clear from the said Retrenchrileilt Terms themselves that thev dealt with a fold. problem, ( 1 ) of the surplus S'!aff of the\n\niicceding States, and (2) of payment of a rea9o~le. liubsistence to such of the sl!rplus personnel who could n()t be absorbed~\n\nThough the said notification called its provisions \"Retrenchment Terms\", there was no question of any retrenchment in the sense in which that expression is ordinarily understood. '.The question of retrenchment could , arise duly in the case of person~ who had . already been absorbed and continued in the service of the new\n\nState. As aforesaid, the process of absorption was pending and under consideration.\n\nUntil it was completed, the appellant's name figured in the list of the \"provisionally ah'; orbed persons\".\n\nIt was, therefore, not as if the surplus employees of the acceding States had already been absorbed or retained in the service of the new State and then were retrenched or removed from service.\n\nThe seven categories of persons classified i:n the, said Retrenchment Terms also indicate that those persons were not to be absorbed and not that they were to b~ removed or retrenched from the service of the new State. There is nothing on record to show that the new State was bound to absorb in its service all the employees of the acceding States even if they were surplus.\n\nAs aforesaid, even if tl!e covenant under which the acceding States joined the new State so provided, the individual employees of such States did not thereunder acquire any right to be absorbed or continued in service of the new State. The non-absorption of persons falling in the seven categories could not, therefore, amount in law to removal or dismissal from service. They were simply not absorbed. in the service of the new State and had, therefore, not yet become its employees. No question thus of removal or dismissal could possibly arise.\n\nIt is true that of the seven categories of persons, category 2 related to persons whose previous service record was consistently\n\nbad, The decision not to absOrb such persons, however, could not amount to any punishment for the reason that they were not yet absorbed or continued in service of the new State and had, therefore, not become its . employees. It is true that these persons along with persons falling in the other categories continued to work in the new State after its formation. But that was only by way of a provisional arrangement, until the process of absorption was finalised.\n\nNo question of paying subsistence or comoensation also could have arisen if their non-absorption amounted to either removal or dismissal by way of punishment.\n\nCategory 1 consisted Of those who had reached the age of 55 years, if they were in superior service, or 60 years, if they were in inferior service. Their non-ablrorption, surely, could not constitute either removal or dismissal as and by way of. punishment. The same would hie the case of those in categories 3, 5 and 6, namely, temporary and officiating government servants, persons who had put in service for 30 years and more,. and permanent servants who had less than three yean service to their credit.\n\nThese\n\npersons were placed in these categories preswnably for the reason that 'their non-absorption would not work as a hardship or be un, fair as against persons who were permanent i::overnment servants and who had a long period to be in service. The classification of persons in the seven categories was thus clearly made to select persons from out of those who were in excess of the requirements of the new State. Since they were not to be absorbed, they could not be said to have been the employees of the new State and Art. 311, 'therefore, could not apply to their cases. The claim of the appellant that the impugned order amounted to punishment or that for that reason Art. 311 was attracted was clearly misconceived.\n\nThe respondent-State had relied upon categories 2, 4 and 7, as grounds for the impugned order.\n\nSo far a~ category 4 was concerned, there can be no doubt that the appellant did not have the minimum educational qualification required for the post of a Sub-Inspector. Since thart was so, he would also fall in category No. 7, that is, as a person who could not, for reasons considered adequate by the Government, be absorbed in. the service of the new State. Even if, therefore, category (2) could not for some reason or the other be taken into consideration, categories 4 and 7 were relevant and valid. The mere fact that the Government could not avail of category (2) did not mean that it could not rely on the other two grounds. The reason is hat this was not a case of subjective satisfaction, where on failure of one of the grounds it would be impossible to predicate whether the relevant authority could have reached its satisfaction only on the basis of the rest of the grounds.\n\nThe tests here were ob.iectlve ones and if one of the several such tests failed, but the others were sufficient, the order would still have to be sustained.\n\nWe agree, in the circwn!ltances, with the judgment of the High Court, though for the reasons set out above. In the result, the appeal fails, but since the appellant is a person who was not absorbed in service, we make no order as to costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 47, "entities": [{"text": "GAJRAJ SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "GAJRAJ SINGH", "offset_not_found": false}}, {"text": "THE STATE OF MADHYA PRADESH & ANR", "label": "RESPONDENT", "start_char": 14, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADHYA PRADESH & ANR", "offset_not_found": false}}, {"text": "March 28, 1973", "label": "DATE", "start_char": 50, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "March 28, 1973\n\n[J. M. SHELAT, ACTING C.J. AND Y. V. CHANDRACHUD, J.]\n\nConstitution, art."}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 70, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD, J.", "label": "JUDGE", "start_char": 97, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "art. 311", "label": "PROVISION", "start_char": 135, "end_char": 143, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 408, "end_char": 416, "source": "regex", "metadata": {"statute": null}}, {"text": "Gwalior", "label": "GPE", "start_char": 713, "end_char": 720, "source": "ner", "metadata": {"in_sentence": "In May 1948 the rulers of Gwalior, Indore and certain other States formed und<lr a covenant executed by them, a new State, called the\n\nUnited States of Madhya Bharat."}}, {"text": "Indore", "label": "GPE", "start_char": 722, "end_char": 728, "source": "ner", "metadata": {"in_sentence": "In May 1948 the rulers of Gwalior, Indore and certain other States formed und<lr a covenant executed by them, a new State, called the\n\nUnited States of Madhya Bharat."}}, {"text": "December 15, 1948", "label": "DATE", "start_char": 1137, "end_char": 1154, "source": "ner", "metadata": {"in_sentence": "By n notification, dated December 15, 1948, the Madhya Bharat Government published rules, called the 'Retrenchment Terms' which were revised by another notification dated July 9, 1949."}}, {"text": "Madhya Bharat Government", "label": "ORG", "start_char": 1160, "end_char": 1184, "source": "ner", "metadata": {"in_sentence": "By n notification, dated December 15, 1948, the Madhya Bharat Government published rules, called the 'Retrenchment Terms' which were revised by another notification dated July 9, 1949."}}, {"text": "July 9, 1949", "label": "DATE", "start_char": 1283, "end_char": 1295, "source": "ner", "metadata": {"in_sentence": "By n notification, dated December 15, 1948, the Madhya Bharat Government published rules, called the 'Retrenchment Terms' which were revised by another notification dated July 9, 1949."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2158, "end_char": 2166, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2263, "end_char": 2271, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2565, "end_char": 2573, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 3134, "end_char": 3142, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 3284, "end_char": 3292, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court, Indor~", "label": "COURT", "start_char": 4643, "end_char": 4676, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated December 20, 1966 of the Madhya Pradesh High Court, Indor~\n\nBench in First Appeal No."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 4753, "end_char": 4765, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani, I. N, Shroff and fl."}}, {"text": "S. Parihar", "label": "LAWYER", "start_char": 4788, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "S. Parihar, for the rcspon dents."}}, {"text": "SHELAT", "label": "JUDGE", "start_char": 4867, "end_char": 4873, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHELAT, ACTING C.J.-The appellant was in 1934 first appointed as a police constable in the erstwhile State of Gwalior and was promoted in March 1945 to the post of a Sub-Inspector."}}, {"text": "Government of the United State of Madhya Bharat", "label": "ORG", "start_char": 5752, "end_char": 5799, "source": "ner", "metadata": {"in_sentence": "As revised by another notification, dated July 9, 1949, these Retrenchment Terms so far as they are relevant for the purposes of this appeal read as under :\n\n\"Government of the United State of Madhya Bharat:\n\n• • • •\n\nNOTIFICATION After a careful consideration of the Mohan Rau Committee's recommendations regarding the retrench-\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll."}}, {"text": "Mohan Rau", "label": "ORG", "start_char": 5861, "end_char": 5870, "source": "ner", "metadata": {"in_sentence": "As revised by another notification, dated July 9, 1949, these Retrenchment Terms so far as they are relevant for the purposes of this appeal read as under :\n\n\"Government of the United State of Madhya Bharat:\n\n• • • •\n\nNOTIFICATION After a careful consideration of the Mohan Rau Committee's recommendations regarding the retrench-\n\nSUPREME COURT REPORTS (1973] 3 S.C.ll."}}, {"text": "Government of Madhya Bharat", "label": "ORG", "start_char": 6092, "end_char": 6119, "source": "ner", "metadata": {"in_sentence": "ment ct surplus staff of the acceding States of the Madhya Bharat Union and compensation terms to be offered to such staff, the Government of Madhya Bharat have been pleased to sanction tile following principles which will govern the selection of Government servants for discharge from service and tile grant of compensation to them."}}, {"text": "Madhya Bharat", "label": "GPE", "start_char": 6403, "end_char": 6416, "source": "ner", "metadata": {"in_sentence": "Owing to wide diversity of rules relating to leave and pension in force in the various acceding Units of Madhya Bharat, the Government are constrained to frame a separate set of rules, modelled on the tenns sanctioned by the Government of India to their retrenchment personnel. ."}}, {"text": "Government of India", "label": "ORG", "start_char": 6523, "end_char": 6542, "source": "ner", "metadata": {"in_sentence": "Owing to wide diversity of rules relating to leave and pension in force in the various acceding Units of Madhya Bharat, the Government are constrained to frame a separate set of rules, modelled on the tenns sanctioned by the Government of India to their retrenchment personnel. ."}}, {"text": "GAJRAJ V", "label": "JUDGE", "start_char": 7692, "end_char": 7700, "source": "ner", "metadata": {"in_sentence": "GAJRAJ V, M.P. STATE (Shela!,"}}, {"text": "1st of July, 1948", "label": "DATE", "start_char": 8105, "end_char": 8122, "source": "ner", "metadata": {"in_sentence": "• • •\n\nThese orders shall have effect from the 1st of July, 1948.\""}}, {"text": "Bhilsa", "label": "GPE", "start_char": 8161, "end_char": 8167, "source": "ner", "metadata": {"in_sentence": "While the appellant was working at Bhilsa as the sub-inspector, he received an order signed by the Deputy Inspector-General, Central Range, to the effect that the appellant was \"retrenched .. for consistent bad record under retrenchment category 2\" of the said Retrenchment Terms."}}, {"text": "January 2, 1954", "label": "DATE", "start_char": 8923, "end_char": 8938, "source": "ner", "metadata": {"in_sentence": "By his order, dated January 2, 1954, the Inspector-General rejected the appeal and confirmed the said order, also under categories 4 and 7 of the said Terms, that is, besides the ground of a consistently bad record, also on the ground of the appellant not possessing the minimum qualification prescribed for F the post, and the ground that the appellant, for reasons considered adequate by the Government, could not be absorbed in the Madhya Bharat service."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 9490, "end_char": 9518, "source": "ner", "metadata": {"in_sentence": "Resort to departmental authorities for redress against the said order having failed, the appellant filed a writ petition in the High Court of Madhya Pradesh, pleading inter-alia that the impugned order amounted to removal by way of punishment which attracted Art."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 9621, "end_char": 9629, "source": "regex", "metadata": {"statute": null}}, {"text": "October 22, 1959", "label": "DATE", "start_char": 9654, "end_char": 9670, "source": "ner", "metadata": {"in_sentence": "On October 22, 1959, the High Court dismissed the writ petition on the ground of delay."}}, {"text": "Art. 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judgment and decree."}}, {"text": "Krishnan", "label": "JUDGE", "start_char": 11388, "end_char": 11396, "source": "ner", "metadata": {"in_sentence": "The Division Bench of the High Court, which i)eard the appeal, had on it coincidently Krishnan, J., who also was one of the judges on the Bench which had earlier dismissed the appellant's said writ petition in 1959."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 11978, "end_char": 11986, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 12409, "end_char": 12417, "source": "regex", "metadata": {"statute": null}}, {"text": "Gwalior State", "label": "GPE", "start_char": 12903, "end_char": 12916, "source": "ner", "metadata": {"in_sentence": "On the accession of Gwalior State to the United States of Madhya Bharat, his position, however, totally changed, in that, it was for the new State to absorb B him or not into its service."}}, {"text": "United States", "label": "GPE", 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{"document_id": "1973_3_802_810_EN", "year": 1973, "text": "PARKASH CHAND KHURANA ETC. v.\n\nHARNAM SINGH & ORS.\n\nMarch 28, 1973 [S. N. DwlVEDI AND Y. V. CHANDRACHUD,- JJ.] Practice---iA ward of arbitrator-Decree in 1erms of award-Provision for return of property in default of certain payments-Executability.\n\nThe respondent erected a factory on a plot of land allotted to them by the Faridabad Development Board. They agreed to sell their rights in the plot and the factory to the appellants. Disputes :iaving arisen between the parties on certain matters relating to the agreement, they were referred to arbitration.\n\nThe arbitrator gave an award and a decree was passed in terms of the award. . Under the award, the appellants were liable to discharge the liability of the respondents to the Faridabad Development Board In the sum of about Rs. 23,000/-. The appellruits were to pay thi• amount within H years, or, alternatively, to obtain from the Board within that period a complete di.charge for the respondents. In default of such payment, the respondents were entitled to take back possession of the plot and factory. The appellants paid only a sum of. Rs. 8,000/ - to the Board and this sum was shown in the accounts of the Board as lf _paid by the respondents.\n\nAs the appellants committed default the resjloodeoto took out execution. The appellants opposed the application but the High Court, in Letters Patent appeal, directed execution to proceed.\n\nDismissing the appeal to this Cour~ HELD: ( 1) There is no support for the contention of the appellants that the default on their part occurred by reason of the non-cooperation of the respondents. The evidence shows that the appellants were not in a position to make the payment.\n\n[807F-GJ\n\n(2) By the respondents transferring their entire interest in the property to the appellant. there existed a foundation for the creation of privity between the appellants and the Board; but 1he Board never agreed to substitute the appellants as its debtors in place of the respondents. Even after accepting the sum of Rs. 8,000/- from the appellants, ihe Board was entitled to recover the balance from the respondents.\n\n[807H;\n\n808B-DJ Kandarpa Nag v. Banwari Lal Nag and Ors., A.LR. 1921 Cal.. 356(2), Mitha and Ors. v. Remal Dass and Ors., A.I.R. 1937 Lah. 828 and Sheikh\n\nMohidin Tharagan v. Vadiva/agianambia Pillai, 22 J.C. 37, referred to.\n\n(3) The recital in the award that on the failure of the appellants to make the payment the respondents were entitled to take back possession of the plot and the factory has to be considered in the entire scheme of G the award, and so considered, there is no doubt that it was not merely the possession of the property but the title thereto also would pass to the respondents.\n\n[809 C-DJ\n\n(4) The appellants' liability to pay the dues of the Board would operate only if the title to the property is vested in them. [809E-F]\n\n(5) Tho -tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of H the award that if the appellants defaulted in discharging their obligation under the award the respondents would be entitled to apply for execution and obtain possession of the property. [809 F-Hl\n\n( 6) The clause in the award providing 'for the right of th~ espondent\" to obtain possession of the property on. the appellants committing deauit. is not in the nature of a penalty against which the appellants are entitled to be relieved.\n\nMoreover, the term is contained in a decree passed. by the Court in terms of the award and no relief can be granted as agamst the terms of a decree~ The award-decree could not be treated as a consent decree, because, the award was valid on its own, independently of any decision of the parties not to object to it.\n\n[810 A-DJ\n\nKandarpa Nag v. BanwarG Lal Nag and Ors .• AI.R. 1921 Cal., 356(2), Mitha and Ors. v. Renu:I Dass and Ors., A.I.R. 1937 Lab. 828 Sheikh Mohidin Tharagan v. Vadivalagianambia Pillai 22 l.C. 37 and Chanbasappa Gurushantappa Hire111ath v. Basalingayya Gokurnaya, 51\n\nI.L.R.\n\nBorn. 908, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1866 of 1967.\n\nAppeal by certificate from tl).e judgment and decree dated September 15, 1967 of the Punjab & Haryana High Court at Chandigarh in Letters Patent Appeal No. 139 of 1965.\n\nD. V. Patel, G. S. Vohra, R. P. Agarwal and M. V. Goswami;. for the appellants.\n\nG. L. Sanghi, C. S. Rao, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondents.\n\nThe Judgment cf the Court was delivered by\n\nCHANDRACHUD, J.-Plot No. 29-B Industrial Area, Faridabad, was allotted in the year 1952 to the respondents by the Faridabad Development oard. Respondents erected buildings on the plot, mstalled machmery therein and started a factory in the 11ame and style of \"Bharat Rubber Mills\". By an agreement of May, 1955 respondents sold their rights in the plot and the factory to the appellants. Disputes arose between the parties on certain matters relating to the agreement, which the parties referred to an arbitrator.\n\nThe arrtrator gave his award on August 4, 1955 and lhe award became a rule of the court on August 23, 1956.\n\nOne of the principal terms of the award, broadly, was that the appellants were to pay a certain sum of money to the Board in discharge of the liability of the respondents and on their failure to make the payment, they were to give back the possession of the plot and the factory to !he respondents. The appellants not havi:llg paid the amom!t, respondents filed a series of execution\n\napplications the last of which is dated January 15, 1964. Appellants opposed that application on various grounds which were re.iected by the executing court and the execution was directed. to proceed.\n\nAppellants filed an appeal against the judgment of the. executing court, which was allowed by .a learned si:ngle Judge of the High Court of Punjab and Haryana. Respondents challeng-\n\n.ed that judgment in Letters Patent Appeal No. 139 of 1965.\n\nThat appeal was allowed by a Division Bench on September 15 1 ~67 and the judgment of the executing court was restored. Th~ High Coult has granted to the appellants leave to appeal to this Court. frm its judgment under Article 133(1) (a) and (c) of the Constitution.\n\nUnder clause 2 of the award, the appellants were liable to dis- -charge the liability of the respondents to the Faridabad Development Board in the sum of Rs. 23,686-6-0. Under clause. 7, the a plants were to pay this amount within 1 t years or alterntively, to obain from the Board within that period a complete discharge for the respondents. It is common ground that within\n\nthe stated period the appellants had paid a sum of Rs. 8,000/- only to the Board. In addition, they had forwarded to the Board\n\nfor its acceptance verified claims in the sum of Rs. 10,000/- which they held under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.\n\nThe Board was evidently disinclined to accept the verified claims in discharge of the liability of the respondents. Assuming, however, in favour of the appellants that\n\nthe verified claims constituted a valid payment, they had still not paid ro the Board the full amount which they were liable to pay under clause 2 of the award, within the period mentioned in clause 7.\n\nAs the appellants committed default in the payment of the aforesaid amount, the consequence prescribed by clause 7 of the award would follow, namely, that the resnondents would be entitled to take back possession of the property from the appellants.\n\nLearned counsel appearing for the appellants, however, argues that the respondents refused to co-operate with the appellants and in the absence of such co-operation the appellants, though ready 'llld willing to pay the amount, were unable to do so. They cannot. therefore, be visited with the penal consequences provided for by -clause 7 of the award.\n\nOur attention has been drawn to the bulk of the correspondence that transpired between the anpellants and the Board on the <>ne hand and the appellants and the resoondents on the other but we see therein no su&port for the contention that the default on the part of the appellants occurred by reason of the non-i:oo]1Cration of the respondents. Aopellants created imoediments in their\n\nown way by asking the Board to acceot verified claims ln dis- -char11; e of the liability of the respondents. The Board was under no le!!:al obligation to accent the verified claims, not at any rate Without nroner scrutinv. and such scrutinv could notoriously take longer than -the oeriod of It years orovided for bv clause 7 of the award. It was. for the apoellants ro find ways and means to s•tisfy 1he dues of the Board in a fomt acceptable to it but they failed to\n\nA do so.\n\nThe co-operation of the respondents had no place in this picture.\n\nClause 7 of the award, in so far as is relevant on this aspect, reads thus :\n\n\"In case the second party does not make payment to the Faridabad Development Board as mentioned in clause No. 2, mentioned above, for a period of H years or does not take the liability of the Development Board on itself as a result whereof the liabilities of the first party do not come to an end, as mentioned in clause No. 2, .............. the first party shall be entitled to take back the possession.\"\n\nIt is clear that the appellants had a two-fold option under this clause. They had either to make the payment to the Board within the stated period or they had to enter into an arrangement with the Board in order, effectively, to terminate the liability of the respondents to the Board. Tb.e first option was not availed of by the appellants. But the appellants drew our attention to the correspondence between the concerned parties in an effort to estal>lish that by accepting part payment of the amount from, the appellants, the Board had agreed to substitute the appellants as its debtors in place of the respondents, thereby terminating the liability of the respondents.\n\nThe agreement tween the appellants and respondents, where~ by the latter sold their interest in the property to the appellants was executed in May, 1955. The correspondence began with a letter Ex. J.D. 12, dated May 20, 1955 and continued at least till the early part of 1957. By their letter Ex. J.P. 12, tl)e appellants informed the Administrator, Faridabad Development Board, that they had decided to make payment of all the amounts due to the Board. By a letter Ex. J.P. 13 dated October 5, 1955, the appellants informed the Administrator that they had purchased the .factory from the respondents and they inquired of the Administrator\n\nwhether, the verified claims held by them in respect of the property which they owned in Pakistan could be accepted in satisfaction of the liability of the respondents.\n\nFurther corresponden~ ued between the parties and on January 16, 1956 the AdmlWstratoc wrote to \"M/s. Bharat Rubber Mills, Faridabad\" asking them to pay a sum of Rs. 27 ,325-9-0 which had accrued due on account of premium, ground rent and house rent. Appellants place strong reliance on this letter in order to show !hat the Board looked to them for meeting the liability of the respondents, which according to the appellants, must effeotively discharge the respon4ents from their liability to the Board.- We are unllPle to read tile letter as having any such effect.\n\nThe Administrb.tor used to address all'\n\ncorrespondence to \"Ml s. Bharat Rubber Mills Faridabad\" because it is they who were liable to pay the dues f the Board.' The letters, though not specifically intended for the appellants, naturally fell into their hands ause under an agreement with the respondents they had purchased the \"Bharat Rubber Mills\" and were in possession thereof. The particular letter, therefore would be inadequate to establish that the Board had recognised ihe transfer m favour of the respondents or thll't it had agreed to substitute the appellants as its debtors, in place of the respondents.\n\nReliance is then placed on 5 letters : Exhibits J.D. 20, 21. 22, 25 and 23 dated April 10, 1956, October 25, 1956, November 15, 1956, January 7, 1957 and January 30, 1957 respectively, for showing that bly accepting the payment o.f Rs. 8,000/- from the appellants the Board had recognised the appellants as its\n\n.Jeors, discharging thereby the respondents from their liability.\n\nBy Bx. J.D.20, the appellants informed the Board that they had purchased the property from the respondents and that they were teady and willing to pay the entire dues of the Board according to the terms of the award. The Board did not send a reply to this letter and that abstention, though not commendable in a public body, militates against the inference that the Board had recognised 'the appellants as its debtors in place of the respondents.\n\nAlong with the letter Bx. J.D.21, appellants enclosed 7 cheques of Rs. 1,000 each and. agreed to pay the balance in monthly instalments of Rs. 1,000. By their letter Bx, J.D.22 the appellants requested the Board to deposit the aforesaid 7 cheques in the bank, not all at once but one per week. It appears that in course\n\no.f time the Board realised the amount sent by the apoellants through the 7 cheques. By their Jetter Ex. J.D.25, the appellants requested the Board to send an official receipt in respect of the sum of Rs. 7,000. Finally, by the letter Ex. J.D. 23 the appellants sent to the Board yet another cheque in the sum of Rs. 1,000 along with true copies of verified claims in the sum of Rs. 10,000. The cheque for Rs. 1,000 was cashed by the Board in course of time but the verified claims, though not returned, were at no stage :accepted.\n\nIt seems to us difficult from the tenor of this correspondence to 'hold that the Board had accepted the appellants as their debtors\n\nin substitution of the respondents, thereby releasing the Jetter from their primary liability. The Board was interested in recovering its dues and the circumstance that payments made by the appellants were accepted by it cannot have the effect o.f releasing the res- H vondents from the undischarged liability. Normally, a public authority like the Board would not agree to substitute a new debtor in place of the old without at least a formal inquiry into the\n\n'°• solvency of the former. There seems no evidence of such an in quiry; The argument al the appellants that by paying a part of the amount due to the Board they had obtained a v!llid discharge for the respondents in regard to the entire claim of the Board over\n\nlooks that even after accepting the sum of Rs. 8,000 from the ap pellants, the Board would be entitled to recover the balance from B the respondents, who were primarily liable to pay the am~'!°t. It\n\nwould be wrong to hold, in the absence of a formal recogmtton of the appellants by the Board as its debtors, that the liability of the respondents had come to an end.\n\nIn fact, by their letter Ex. J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid. Harnam Singh .\n\nand Tarlok Singh are respondents 'lo this appeal. On March 20, 1960 the Assistant Settlement Commissioner in the Ministry of Rehabilitation, Government of India, wrote a lel'ter Ex. J.D. 5 tO'\n\nthe appellants that the transfer in their favour was never recognised by the Board. It would appear that in the meanwhile., the appellants had sent 3 cheques to the Board but those cheques were returned by the Assistant Settlement Commissioner along with letter Ex.\n\nE J.D. 5. These two letters were undoubtedly written by or on behalf of the Board after February 4, 1957 when the period of U. years .Prescribed by clause 7 of the award expired, but it woql<, i be .\n\nwrong to ignore these letters on the supposition that the Board had : entered into a conspiracy with the respondents in order to defeat' the title of the appellants. Such on inference was pressed upon \\ls F biut there is no basis for it. The attitude Of the Board rather shows that it was interested in recovering its dues and had waited long\n\nenough to enable the appellants to make the payment. . The truth of the matter, as held by the Division Bench of the High Court, seems to be that the appellants were not in a position to make the payment.\n\nG It is interestinl! to note that the appellants had themselves. stated in paragraph 8 of their Objections to the execution application filed by the respondents, that they wanted to make the payment of the entire amount to the Board but that the Board had refused to re cognise them and that the payment of Rs. 8,000 made by them H was shown in the accounts of the Board as if it were made by res\n\npendents. It is clear from this statement that the appellants were conscious that the Board had refused to recognise them as its deb tors, in place of the respondents.\n\nIn this view, it is unnecessary to consider whether the letter , A Ex. D.H. 7 dated February 17, 1956 alleged to be written the respondents to the Board , is genuine or not.\n\nThe decisions in Nochulliyil Euzhuvan Theethi's son Thethalan\n\nv. The Era/pad Rajah Styled Flaya Rajah Avargal of Patinhara Kovilagam & Ors., (1) Saradindu Mukherjee v. Sm. Kunja Kamini Roy and Ors.,(') and Krishna Bhatta v. Narayana Achary and Anr., (8) on which the anpellants' counsel relies can be of no assistance.\n\nIt was held in Nochul/iyil's case that the mortgagee with possession from the lessee is not liable to the lessor for rent as there is neither privily of estate nor privily of. contract between them. It is undoubtedly true that the respondents had transferred their entire interest in the property to the appellants and therefore there existed a foundation for the creation of a privily between the appellants and the Board. However, as indicated abov~, the Board never agreed to substitute the appellants as its debtors in place of the respondents.\n\nIn Saradindu Mukherjee\"s case, it was held that an express or implied recogni1ion by the lessor of a transferee from the original tenant would be effective to discharge the Iiablility of the tenant. In the instant case the evidence of such recognition is lacking.\n\nKrishan Bhatta\"s case is distinguishable for the same reason.\n\nIt is then contended that on the appellants defaulting, the respondents would at the highest be entitled to recover possession of the property from them but their title will not pass with such parting of possession. Clause 7 of the award on which the appellants' counsel relies in suppert of this argument provides that if the appellants committed default in payment of the amount, the respond!)nts \"shall be entitled to take back the possession\". This tenn, tom from the rest of the award, may lend plausibility to the appellants' contention but for a true construction of that tenn. one must have regard to the entire scheme of the award. Clause 7 itself contains a specific recrtal that until such time as the Board's dues remain unsatisfied or the liability of the respondents rmains undischarged, the appellants \"shall not be competent to transfer the rights of Bharat Rubber Mills in the factory, site, buildin!!.\n\nand machinery etc., in any manner by means of mortgage, sale or to remove the same\" and that the possession of the appellants' during the interregnum shall be deemed to be \"in trust\".\n\nThis recital leaves no doubt that if the appellants committed default in discharging their obligations under the award, not merely pessession of the property but the title thereto would pass to the respondents; or else, it was meaningles's to put restraints on the POer of the appellants to deal with the property as owners and to provide\n\n(l) 40 I.LR. Madra• 1111.\n\n(2) A.T.R. 1942 Cal. 514.\n\n(3) A.T.R. 1949 Mad. 618\n\nA that so long as they did not discharge their obligations they would be in possession as trustees. Such a trusteeship can, in the cir -\n\ncumstance~ enure for the benefit of the respondents alone.\n\n1.f the appellants, on defaulting, were liable to handover mere possession to the respondents, it would be difficult to work out the consequent rights and obligations of the parties. There is no provision in the award as to the further period within which the appellants must discharge their obligations, nor ifl4eed is thero any provision as to whether the respondents, after getting back possession from the appellants, would be free to deal with the property in the ordinary course of business. If the title to the property was to remain vested in the appellants and the respondents were to obtain the mere husk of possession, the appll_llan\\s might contend for recovering from the respondents the entire fruit of their labour, 'after discharging the obligations under the award at their leisure and convenience.\n\nWe are therefore clear that on failure of the appellants 10 discharge their obligations under the award within the stated period, the possession of the property and along with it the title thereto must pass to the respondents.\n\nThere is no sense of realism in the apprehension of the appellants that after recovering possession from them, _the respondents could still insist that they should pay the sum ()f Rs. 23,000/- and odd to the Board. Clause 3 of the award which, along with clauses 2 and 7, makeli the appellants liabk to pay the dues of E the Board would operate only if the title to the property is vested in the appellants. The liability to pay the dues of the Board is 311 incident of ownership and would therefore pass with the title to the property.\n\nThe next contention of the apptllants is that the award is. merly declaratory of the rights of the parties and is therefore inexecutable.\n\nThis contention is based on the wording of clause 7 of the award which provides that on the happening of certain events the respondents \"shall be entitled to take back the possession\", we are unabile to appreciate how this clause makes the award merely declaratory. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution applicatio)l for obtaining that relief. The tenor of the award Shows that the arbitrator did not intend merely to declare the rights to the parties. It is a clear intendment of e award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain nossession of the property.\n\nThe last contention of the appellants is that <he particular term of clause 7 of the award providing for the right of the respondents to obtain possession of the property on the appellants committinl! 4-L797Sup.Cl/73\n\ndefault is in the nature of a penalty, against whicJi appellants are entitled to be relieved. One answer to this contention is that it is impossible to treat the particular term as in the nature of a penalty.\n\nSecondly, the term is contained in a decree passed by the court in terms of the award and no relief can be granted as against the terms of a decree stands on the same footing as a consent decree because bloth tlie parties expressly agreed that the award should be made a rule of the court. The failure of the respondents to object to 1he award may stem from several considerations, including the one that an award can be set aside only on the grounds specified in section 30 of the .Arbitration Act, 1940, and none of those grounds may have been available to !hem. We, therefore. see no warrant for the view that the award decree should be treated as a consent decree. The award of the arbitrator did not get its efficacy by reason of the fact lhat the parties agreed to it. The award was valid on its own, independently of the decision of the parties not to object to it. On the other hand, the validity of a compromise decree flows from the consent of th.e parties.\n\nThe decisions in Kandarpa Nag v.\n\nBanwari Lal Nag and Ors.,(') Mitha and Ors. v. Rema/ Dass & Ors\",(') and Ana Sheikh Mohidi11\n\nTharagan v. Vadivalagianambia Pillai(') relate to penal clauses in compromise decrees and are therefore distinguishable.\n\nThe Full Bench decision in Chanbasappa Gurushantappa Hiremath v.\n\nBasalirigayya Gokurnaya Hire math & Ors.,(') can also have no application because that case is an authority for the limited proposition, prior to the enactment of the Arbitration Act, 1940, that where in a suit parties have referred their dispute to an arbitration without an order of the court and an award is made, a decree in terms of the award could be passed by the court under Order XXIlI, Rule 3, of the Code of Civil Procedure. In the instant case, parties agreed to refer their disputes to arbitration when no suit was pending and the award subsequently became a rule of the court.\n\nFor these reasons we cOllfirm the judgment of 1he High Court and dismiss the appeal with costs.\n\nV.P.S.\n\n(I) A.l.R. 1921 Cal 356 (2).\n\n(2) A.I.R. 1937 Lah, 828i\n\n(3) 22 I. c. 37.\n\n(4) 51 I. L. R. Born. 908\n\nAppeal dismissed.", "total_entities": 61, "entities": [{"text": "PARKASH CHAND KHURANA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "PARKASH CHAND KHURANA ETC", "offset_not_found": false}}, {"text": "HARNAM SINGH & ORS", "label": "RESPONDENT", "start_char": 31, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "HARNAM SINGH & ORS", "offset_not_found": false}}, {"text": "March 28, 1973", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "March 28, 1973 [S. N. DwlVEDI AND Y. V. CHANDRACHUD,- JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 86, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Faridabad Development Board", "label": "ORG", "start_char": 324, "end_char": 351, "source": "ner", "metadata": {"in_sentence": "The respondent erected a factory on a plot of land allotted to them by the Faridabad Development Board."}}, {"text": "D. V. Patel", "label": "OTHER_PERSON", "start_char": 4300, "end_char": 4311, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, G. S. Vohra, R. P. Agarwal and M. V. Goswami;."}}, {"text": "S. Vohra", "label": "LAWYER", "start_char": 4316, "end_char": 4324, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, G. S. Vohra, R. P. Agarwal and M. V. Goswami;."}}, {"text": "R. P. Agarwal", "label": "LAWYER", "start_char": 4326, "end_char": 4339, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, G. S. Vohra, R. P. Agarwal and M. V. Goswami;."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 4344, "end_char": 4357, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, G. S. Vohra, R. P. Agarwal and M. V. Goswami;."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 4381, "end_char": 4393, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, C. S. Rao, J. B. Dadachanji, 0."}}, {"text": "C. S. Rao", "label": "LAWYER", "start_char": 4395, "end_char": 4404, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, C. S. Rao, J. B. Dadachanji, 0."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 4406, "end_char": 4422, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, C. S. Rao, J. B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 4424, "end_char": 4436, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, C. S. Rao, J. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4441, "end_char": 4456, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondents."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 4524, "end_char": 4535, "source": "ner", "metadata": {"in_sentence": "The Judgment cf the Court was delivered by\n\nCHANDRACHUD, J.-Plot No."}}, {"text": "Bharat Rubber Mills", "label": "ORG", "start_char": 4784, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "Respondents erected buildings on the plot, mstalled machmery therein and started a factory in the 11ame and style of \"Bharat Rubber Mills\"."}}, {"text": "August 4, 1955", "label": "DATE", "start_char": 5071, "end_char": 5085, "source": "ner", "metadata": {"in_sentence": "The arrtrator gave his award on August 4, 1955 and lhe award became a rule of the court on August 23, 1956."}}, {"text": "August 23, 1956", "label": "DATE", "start_char": 5130, "end_char": 5145, "source": "ner", "metadata": {"in_sentence": "The arrtrator gave his award on August 4, 1955 and lhe award became a rule of the court on August 23, 1956."}}, {"text": "January 15, 1964", "label": "DATE", "start_char": 5573, "end_char": 5589, "source": "ner", "metadata": {"in_sentence": "The appellants not havi:llg paid the amom!t, respondents filed a series of execution\n\napplications the last of which is dated January 15, 1964."}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 5861, "end_char": 5893, "source": "ner", "metadata": {"in_sentence": "executing court, which was allowed by .a learned si:ngle Judge of the High Court of Punjab and Haryana."}}, {"text": "September 15 1 ~67 and", "label": "DATE", "start_char": 6026, "end_char": 6048, "source": "ner", "metadata": {"in_sentence": "That appeal was allowed by a Division Bench on September 15 1 ~67 and the judgment of the executing court was restored."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 6198, "end_char": 6212, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 2", "label": "PROVISION", "start_char": 6253, "end_char": 6261, "source": "regex", "metadata": {"statute": null}}, {"text": "clause. 7", "label": "PROVISION", "start_char": 6423, "end_char": 6432, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 2", "label": "PROVISION", "start_char": 7210, "end_char": 7218, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 7264, "end_char": 7272, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 7381, "end_char": 7389, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 7855, "end_char": 7863, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 8582, "end_char": 8590, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 8812, "end_char": 8820, "source": "regex", "metadata": {"statute": null}}, {"text": "October 5, 1955", "label": "DATE", "start_char": 10457, "end_char": 10472, "source": "ner", "metadata": {"in_sentence": "J.P. 13 dated October 5, 1955, the appellants informed the Administrator that they had purchased the .factory from the respondents and they inquired of the Administrator\n\nwhether, the verified claims held by them in respect of the property which they owned in Pakistan could be accepted in satisfaction of the liability of the respondents."}}, {"text": "Pakistan", "label": "GPE", "start_char": 10703, "end_char": 10711, "source": "ner", "metadata": {"in_sentence": "J.P. 13 dated October 5, 1955, the appellants informed the Administrator that they had purchased the .factory from the respondents and they inquired of the Administrator\n\nwhether, the verified claims held by them in respect of the property which they owned in Pakistan could be accepted in satisfaction of the liability of the respondents."}}, {"text": "January 16, 1956", "label": "DATE", "start_char": 10837, "end_char": 10853, "source": "ner", "metadata": {"in_sentence": "Further corresponden~ ued between the parties and on January 16, 1956 the AdmlWstratoc wrote to \"M/s. Bharat Rubber Mills, Faridabad\" asking them to pay a sum of Rs."}}, {"text": "Bharat Rubber Mills, Faridabad", "label": "ORG", "start_char": 10886, "end_char": 10916, "source": "ner", "metadata": {"in_sentence": "Further corresponden~ ued between the parties and on January 16, 1956 the AdmlWstratoc wrote to \"M/s. Bharat Rubber Mills, Faridabad\" asking them to pay a sum of Rs."}}, {"text": "Ml s. Bharat Rubber Mills Faridabad", "label": "ORG", "start_char": 11413, "end_char": 11448, "source": "ner", "metadata": {"in_sentence": "The Administrb.tor used to address all'\n\ncorrespondence to \"Ml s. Bharat Rubber Mills Faridabad\" because it is they who were liable to pay the dues f the Board.'"}}, {"text": "February 6, 1957", "label": "DATE", "start_char": 14921, "end_char": 14937, "source": "ner", "metadata": {"in_sentence": "J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid."}}, {"text": "Harnam Singh", "label": "RESPONDENT", "start_char": 15090, "end_char": 15102, "source": "ner", "metadata": {"in_sentence": "J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid.", "canonical_name": "HARNAM SINGH & ORS"}}, {"text": "Tarlok Singh", "label": "RESPONDENT", "start_char": 15107, "end_char": 15119, "source": "ner", "metadata": {"in_sentence": "J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid.", "canonical_name": "Tarlok Singh"}}, {"text": "Bharat Rubr Mills", "label": "ORG", "start_char": 15134, "end_char": 15151, "source": "ner", "metadata": {"in_sentence": "J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid."}}, {"text": "Faridabad", "label": "GPE", "start_char": 15153, "end_char": 15162, "source": "ner", "metadata": {"in_sentence": "J.D. 3 d11ted February 6, 1957 the' Board wrote to the appellants in answer to their letter of January\n\n30, 1957 that the payments made by them were \"credited to the account of M/ s. Harnam Singh and Tarlok Singh, Proprietors, Bharat Rubr Mills, Faridabad\" and that the Board could not re' cognise the appellants as transferees of the plot unless and until the' entire sum due from the respondents was paid."}}, {"text": "Tarlok Singh", "label": "RESPONDENT", "start_char": 15335, "end_char": 15347, "source": "ner", "metadata": {"in_sentence": "and Tarlok Singh are respondents 'lo this appeal.", "canonical_name": "Tarlok Singh"}}, {"text": "March 20, 1960", "label": "DATE", "start_char": 15384, "end_char": 15398, "source": "ner", "metadata": {"in_sentence": "On March 20, 1960 the Assistant Settlement Commissioner in the Ministry of Rehabilitation, Government of India, wrote a lel'ter Ex."}}, {"text": "Ministry of Rehabilitation, Government of India", "label": "ORG", "start_char": 15444, "end_char": 15491, "source": "ner", "metadata": {"in_sentence": "On March 20, 1960 the Assistant Settlement Commissioner in the Ministry of Rehabilitation, Government of India, wrote a lel'ter Ex."}}, {"text": "February 4, 1957", "label": "DATE", "start_char": 15880, "end_char": 15896, "source": "ner", "metadata": {"in_sentence": "These two letters were undoubtedly written by or on behalf of the Board after February 4, 1957 when the period of U. years .Prescribed by clause 7 of the award expired, but it woql<, i be ."}}, {"text": "clause 7", "label": "PROVISION", "start_char": 15940, "end_char": 15948, "source": "regex", "metadata": {"statute": null}}, {"text": "February 17, 1956", "label": "DATE", "start_char": 17194, "end_char": 17211, "source": "ner", "metadata": {"in_sentence": "D.H. 7 dated February 17, 1956 alleged to be written the respondents to the Board , is genuine or not."}}, {"text": "Nochulliyil Euzhuvan Theethi", "label": "OTHER_PERSON", "start_char": 17302, "end_char": 17330, "source": "ner", "metadata": {"in_sentence": "The decisions in Nochulliyil Euzhuvan Theethi's son Thethalan\n\nv. The Era/pad Rajah Styled Flaya Rajah Avargal of Patinhara Kovilagam & Ors., ("}}, {"text": "Nochul/iyil", "label": "OTHER_PERSON", "start_char": 17621, "end_char": 17632, "source": "ner", "metadata": {"in_sentence": "It was held in Nochul/iyil's case that the mortgagee with possession from the lessee is not liable to the lessor for rent as there is neither privily of estate nor privily of."}}, {"text": "Saradindu Mukherjee\"s", "label": "OTHER_PERSON", "start_char": 18159, "end_char": 18180, "source": "ner", "metadata": {"in_sentence": "In Saradindu Mukherjee\"s case, it was held that an express or implied recogni1ion by the lessor of a transferee from the original tenant would be effective to discharge the Iiablility of the tenant."}}, {"text": "Krishan Bhatta\"s", "label": "OTHER_PERSON", "start_char": 18421, "end_char": 18437, "source": "ner", "metadata": {"in_sentence": "Krishan Bhatta\"s case is distinguishable for the same reason."}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 18700, "end_char": 18708, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 19125, "end_char": 19133, "source": "regex", "metadata": {"statute": null}}, {"text": "A.T.R. 1942 Cal. 514", "label": "RESPONDENT", "start_char": 19961, "end_char": 19981, "source": "ner", "metadata": {"in_sentence": "(2) A.T.R. 1942 Cal."}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 21468, "end_char": 21476, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 21973, "end_char": 21981, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 22780, "end_char": 22788, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 23603, "end_char": 23613, "source": "regex", "metadata": {"statute": null}}, {"text": "Arbitration Act, 1940", "label": "STATUTE", "start_char": 23622, "end_char": 23643, "source": "regex", "metadata": {}}, {"text": "Ana Sheikh Mohidi11", "label": "OTHER_PERSON", "start_char": 24215, "end_char": 24234, "source": "ner", "metadata": {"in_sentence": "v. Rema/ Dass & Ors\",(') and Ana Sheikh Mohidi11\n\nTharagan v. Vadivalagianambia Pillai(') relate to penal clauses in compromise decrees and are therefore distinguishable."}}, {"text": "Arbitration Act, 1940", "label": "STATUTE", "start_char": 24591, "end_char": 24612, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24831, "end_char": 24858, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1973_3_811_817_EN", "year": 1973, "text": "PATEL INDIA (PRIVATE) LTD.\n\nUNION OF INDIA & OTHER~\n\n(with connected petition) March 28, 1973 [J. M. Sl:IELAT ACTING C.J. AND Y. V. Cl:IANDRACl:IUD, J.]\n\nSea Customs Act, 1878-S. 40-Whether refund of excess ilnport duty comes under the Section.\n\nThe appellant Company was the so1e distributing agent in India for the imported products of an American firm.\n\nThe Customs authorities used to ]evy i1'tport duty on the basi.s of the invoice price under s. 29 read with s. 30 of the Sea Customs Act, 1878, as being the real value of the goods so imported. ·\n\nDuring 1954~55, the appellant Company imported several items set out in. Annexure 'D' o'f the Special Leave Petition. \\Vhen items 1 and 2 arfived in Bombay Port, the Custom authorities, ignoring their hitherto followed practice, refused to accept the invoice price as the real value and Jcvie<l excess duty.\n\nAn appeal to the Customs Collector failed, whereupon the appellant Company lodged a revision application before the Government of India.\n\nPending the disposal of the said revision, several other items set out in Annexure 'D' arrived in Bombay Port and the Customs authorHies charged the Appellant-Company with excess amounts as import duty.\n\nFor fear of demurrage charges, the appellant-Company paid the excess duty under protest.\n\nIn March, 1957, the Government of India disposed of the said revision, accepting the appellants' contention, and directed reassessment of import duty on the said two items 1 and 2 on the basis of their invoice price and also ordered refund of the excess duty charged on them.\n\nThe .appellaht-Company, however, did not file appeals in respect of the other items which had arrived during the pendency of the said revision, although the Customs had levied excess duty thereon. , / The Customs authorities refunded the excess duty levied on those items, for which applicatiort for refund was made within the time prescribed under s. 40, 'but refused refund in respect of the rest of the items., An appeal to the Collector and a revision before the Government of India were both rejected. The appellant c9mpany, thereafter, filed a writ petition before the Delhi High Court for appropriate relief, but was without success.\n\nThe respondent contended' before .the Court that whatever claims were found not in time as required by s. 40 of'the Sea Customs Act have been correctly rejected by the Appraiser df Customs, Bombay, and therefore, the appellant-Company had nd claim.\n\nAllowing the appeal, HELD : (I) After the disposal of the revision by the Government of India, there was no doubt that the invoice prices were the real value of the consi&nments and the Custom authorities bad no right in law to charge extra duty on the rest of the consignments.\n\nIndeed the excess duty was charged in violation of Sections 29 and 30 and ln excess of 811\n\njurisdiction. This position was also accepted by the Custom authorities when they ordered refund of excess duty charged by them in relation to items 22 to 29 and 33 to 35. [815HJ\n\n(ii) Section 40 had no application in the present case. Section 40 clearly applies only to cases where duties have been paid through inadvertence, error or misctruction, and where refund application has to be made within 3 months. The present case is not one where the excess duty was paid through any of the 3 reasons set out in S'.P.ction -40. The excess duty was demanded on the ground that the invoice price was not the real value of the imported goods.\n\nSince s. 40 did not apply to the facts of the case, the respondents could not retain the excess duty illegally. [816 DJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1799 of 1969.\n\nAppeal btY special leave from the judgment and order dated April 5, 1967 of the Delhi High Court at New Delhi in letters Patent Appeal No. 44 of 1967 and Writ Petition No. 181 of 1967.\n\nPetition under Article 32 of the Constitution of India for the enforcement of fundamental rights.\n\nN. S. Bindra, S. K. Dholakia and Vineet Kl!.mar, for the appellant and petitioner.\n\nS. N. Prasad and S. P. Nayar, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nSHELAT, ACTING C.J.-At all material times, the appellantcompany acted as the sole distributing agent in India for the products of Mis. Sawyer's Inc., Portland, U.S.A., and as such used to import Viewmaster stereoscopes, reels etc. The custom authorities used to levy import duty on the basis of the invoice price under s. 29 read with s. 30 -of the Sea Customs Act, 1878 as being the real value of the goods so imported.\n\nDuring the year 19,54-55, the appellant-company imported several items set out in Anne1<.ure 'D' to the appellant's special leave petition, the details of which it is not necessary to set out here. When items I and 2 arrived in Bombay p()rt, the customs authorities, ignoring their hitherto followed pract.ice, refused to accept the invoice price as the real value and levied excess duty in the aggregate sum of Rs. 1356.\n\nAn appeal _to the Customs Collector failed whereupon the appellant-company lodged a revision application before the Government of India.\n\nPending the disposal of the said revision, several other items set out in the said annexure 'D' arrived in Bombay port, in respect of •vhich the CuS'toms, refusing to accept their invoice price,\n\nPATEL IN!)IA PVT. LTD. v. UNION (She/at, Acting C.J.) 813\n\ncharged the appellant-company with excess amounts as import duty. For fear that demurrage charges would have to be incurred, the appellant-company paid the excess duty charged as aforesaid, but under protest.\n\nOn March 20, 1957, the Government of India disposed of the said revision, accepting the appellant's contention, and directed reassessment of import duty on the said two items 1 and 2 on the basis of their invoice pric.e and also ordered refund to the appellant-company of the excess duty charged on them.\n\nIt would seem that since the said revision was pendin.11: before the Government of. India, the appellant-qompany thought that the Customs would follow the principle which would be laid down in the decision in the said revision.\n\nThe appellant-company, therefore, abstained from filing appeals in respect of the other items, which had arrived pending the decision of the said revision although the Customs had levied excess duty thereon. On the said revision being disposed of and the Government having therein ordered refund, the appellant-company applied for refund of the excess duty charged in respect of some of the items, viz., items 22 to 29 and 33-35. This was done under s. 40 of the Act and within the period appointed therein.\n\nThe Customs granted refund on the aforesaid items 22 to 29 and 33-35, although invoice value thereof had not been accepted, and excess duty had been charged.\n\nThe customs authorities, however, declined to refund the excess duty in respect of the rest of the items. The reason given for such refusal was that the application for refund in respect of those items had not bj-.en made within the time prescribed by s. 40. An appeal to the Collector and a revision before the Government of India against the said refusal to grant refund\n\nwere both rejected, the refusal by the Customs appraiser being confirmed on the groimd that refund was not applied for in time under sec. 40.\n\nThe appellant-company thereupon filed a writ petition in the High Court of Punjab (at Delhi) under Art. 226 of the Constitution pleading inter alia that :\n\n(a) Sec. 40 of the Act had no application,\n\n(b) the Union of India was not entitled to appropriate or retain the said excess duty, ( c) the appellant-company had a legal right to the return of the said excess duty, and ( d) that there was an error apparent on the record in the orders refusing return of the excess duty.\n\nThe appellant-company on these pleas prayed that the said orders of refusal should be quashed and an order should be passed directing return of the excess duty.\n\nIn para 16, sub-paras (i) and (j) of its return the Union of India averred as follows :\n\n\"(i) with reference to clause (1) of para No. 16 of\n\nthe petition, H is correct that the Government of India cannot appropriately retain to whatever they are not legally entitled.\n\nBut I submit that the importers are also required to put in the claims in time as required lJy law. I deny that !he petitioner has a legal right to the return of the excess ci'::: ''\"' duty levied on all the consignments. ( j) I deny and controvert the allegations made in clause (J) of para No. 16 of the petition. I say that !he Bombay Cus'IOms House allowed some claims of the petitioner which were in time under section 40 of the Sea Customs Act, out of the list forwarded with weir letter dated 3-4-1957.\"\n\nP\":a 17 of the return was as follows :\n\n\"I deny para No. 17 of the petition. I submit that whatever claims were found not in time as required by section 40 of the Sea Customs Act have been correctly rejected by the Appraiser of Customs, Bombay.\" It is clear from the return by 'the Union of India that :\n\n(a) refund was granted to the appellant-company in respect of the items referred to above without any appeal having been filed by the company relating to those items, ( b) refund was granted in respect of those Hems simply on the ground that an application therefor had been made whhin the time prescribed by sec. 40, and it was refused in respect of the rest of the items only because such an application therefor was not made within the time prescribed by sec. 40, and ( c) there was no plea that !he exce5' duty was rightly charged on those iteins.\n\nThe learned Single Judge of the High Court who heard the '' :'t petition held !hat sec. 40 of the Act did not apply; that it arplied to erroneous payments and not to erroneous assessments.\n\nHe, however, held that the proper remedy for the appellant-compJny was to have filed appeals against such erroneous assessments un.:ler s. 188 of the Act. and that that having not been done, no relief could be j!ranted to the appellant-company.\n\nHe, however, olo-ervecl that the Government was morally bound to !!rant the\n\nrefund and made a recommendation that the refund should be made .to .the appellant-cmpany; A Letters Patent appeal against 1he said 1ulgment was reiected. Hence this appeal by special leave.\n\n. The only qu.estion which arises in this appeal is whether the High Court ought to have granted in the circumstances of the case 1he relief asked for by the appellant-company in its writ petition.\n\nSec. 2~ of the Act casts a duty on the owner of imported goods,\n\nwheter. hable to duty or not, to state the real val11e, quantity and descnphon of such goods in the bill of en1ry or the shipping bill and to subscribe a declaration of the truth of such statement at the foot of such bill. In case of doubt, tht Customs Collector has the power to require such owner or any one else in possession of\n\nmy invoice, broker's note, policy of insurance or other document, .vhereby the real value, quantity and description of any such goods can be ascertained.\n\nAn invoice thus is one of the documents from which the real value of imported goods has to be ascertained where 1he Customs Collector has any doubt as regards their declared Yalue. Sec. 30 then defines 'real value' to be the wholesale cash price, less trade discount, for which goods of the like kind and quality\n\nare sold or are capable of being sold at the time and place of importation. Sec. 31 provides that goods chargeable with duty upon the value thereof but for which a specific value is not fixed by law for the purpose of levying duties thereon, shall, without unnecessary delay, be examined by the officer of customs. If it appears that the real value of such goods is correctly stated in the bill of entry or shipping bill, the goods shall be assessed in accordance therewith.\n\nThere is no dispute that the appellant-company had declared the real value of the articles imported it and in support thereof 'lad produced the manufacturers' invoices. The customs authorities '1ad refused to accept the invoice price as real value and charged excess duty. But any doubt with regard to the real value of the several consignments imported by the company w.as totally eradicated when the Government of India decided the company's revision and directed that the invoice price should be accepted and duty should be assessed accordingly. In respect of th~ two items to which the revision related, the Government had al!; o .directed refund of the excess duty charged and paid under protest. 'f!lere. was t!ius no doubt or dispute left thereafter as regards the mvo1ce pnces being the real value of the consignments. The direction given in its decision in the said revision that the invoice price should be\n\nccepted as real value within the meaning of sec. 30 of the. ct applied to the rest of the consignments. The customs authonl!es, therefore, were not right in law in charging excess duty on te r7st of the consignments. Indeed, the excess .du.ty .ws chrged m vm- Jation of ss. 29 and 30 and in excess of 1unsd1c1Ion, smce, as held\n\nby the Government of India, the real value of the goods was their invoice price.\n\nThe position, indeed, was accepted by the customs authorities when they ordered refund of excess duty charged by them in relation to items 22 to 29 and 33-35. Such relund could only have been ordered on the footing that the excess duty on those consignments had been charged without the authority ot law and therefore without jurisdiction. The fact that an application had been made therefor under sec. 40 was irrelevant to the point that the excess duty was assessed and recovered without the authority of Jaw.\n\nSec. 40, on which the Union of India relied in its return, provides that no customs duties 9r charges which have been paid, and of which repayment , wholly or in part, is claimed in consequence of the same having bieen paid through inadvertence, error or misconstruction, shall be returned, unless such claim is made within three months from the date of such payment. The section clearly applies only to cases where duties have been paid through inadvertence, error or misconstruction, and where relund application has to be made within three months from the date of such payment.\n\nAs rightly observed by the High Court, the present case was not one where the excess duty was paid through any of the three reasons set out in s. 40. The excess-duty was demanded on the ground that the invoice price was not the real value of the imported goods and payment under protest was also made on that footing.\n\nThe ultimate result in the appellant-company's re\\lision was that charging of excess duty was not warranted under the Act, and that the value on which duty should have been assessed was the invoice price and nothing else.\n\nThat being the position, sec.· 40 did not apply and could not have been relied upon by the customs authorities for refusing to refund the excess d.utY unlawfully levied on the appellant-company.\n\nFrom the fact that the customs authorities refunded the excess duty on items 22 to 29 and 33-35, it follows that the customs authorities had fully realised that the excess-duty had been levied without the authority of Jaw, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the customs authorities were not entitled to levy the excess duty and retain it, they were bound to return if to the appellantcompiuly who had paid it under prote8t and only with a view not\n\nto incur demurrage Charges, unless there was some provision of the Act which debarred the appellant'COinpailyJi:om recovering it. H\n\nThe only provision relied on blv the customs-authorities was sec. 40 of the Act. Indeed, their relusa! to refund the excess-duty\n\nboth in their return and in the High Court was on the grounc! of the omission of the appellant-company to apply for the refund wi•thin the time provided by that section. It is necessary to emphasise that it was not their case that !he invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant-company was not entitled to the refund hereof for any reason except the omission to apply for it within.the time prescribed by sec. 40.\n\nBut since sec. 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some o:her provision of Jaw.\n\nNo ather provision was pointed out by them which would disentitle !he appellant-company to the refunc •Jn the ground of its rights being time-barred or otherwise. No ; uch. provision other than sec. 40 which disentitled the appellant-company lo the refund having been put forward and the cuswms authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to retun~ the excess duty and a corresponding legal right in the appellant-ompany to recover it.\n\nBesides, except s. 40 the Acl contains no O'ther provision laying down any limitation within which an importer has to apply for refund.\n\nThe re.fusal to return the excess duty on the ground that the appellant-company had not applied within time provided by the Act was clearly unsustainable. Since there was not and could not [<, any dispute with regard to the invoice price being the real value there was no point in filing any appeal; nor could the omission to file any such appeal be a proper or valid ground for refusing relief to the appellant-company, when there remained no longer any dispute between the parties as to the invoice price being the real value of the imported items.\n\nFor the reason aforesaid, we are satisfied !hat the High Court was not right in refusing the relief, in spite of its being satisfied that the excess duty was charged without any basis in law and also that the respondents could not lawfully retain the excess duty.\n\nIn the circumstances we set aside the judgment of the High Court and allow the appeal. The respondents will pay to the appellantcompany its costs both here and in the High Court. In view of this conclusion no separate order need be passed in writ petition 181 of 1967. The writ petition accordingly stands disposed of.\n\ns.c.\n\nAppeal allowed.", "total_entities": 65, "entities": [{"text": "PATEL INDIA (PRIVATE) LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "PATEL INDIA (PRIVATE) LTD", "offset_not_found": false}}, {"text": "UNION OF INDIA & OTHER", "label": "RESPONDENT", "start_char": 28, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & OTHER", "offset_not_found": false}}, {"text": "March 28, 1973", "label": "DATE", "start_char": 79, "end_char": 93, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA & OTHER~\n\n(with connected petition) March 28, 1973 [J. M. Sl:IELAT ACTING C.J. AND Y. V. Cl:IANDRACl:IUD, J.]\n\nSea Customs Act, 1878-S. 40-Whether refund of excess ilnport duty comes under the Section."}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 154, "end_char": 175, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 40", "label": "PROVISION", "start_char": 176, "end_char": 181, "source": "regex", "metadata": {"linked_statute_text": "Sea Customs Act, 1878", "statute": "Sea Customs Act, 1878"}}, {"text": "India", "label": "GPE", "start_char": 303, "end_char": 308, "source": "ner", "metadata": {"in_sentence": "The appellant Company was the so1e distributing agent in India for the imported products of an American firm."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 449, "end_char": 454, "source": "regex", "metadata": {"linked_statute_text": "Sea Customs Act, 1878", "statute": "Sea Customs Act, 1878"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 465, "end_char": 470, "source": "regex", "metadata": {"linked_statute_text": "Sea Customs Act, 1878", "statute": "Sea Customs Act, 1878"}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 478, "end_char": 499, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay", "label": "GPE", "start_char": 703, "end_char": 709, "source": "ner", "metadata": {"in_sentence": "\\Vhen items 1 and 2 arfived in Bombay Port, the Custom authorities, ignoring their hitherto followed practice, refused to accept the invoice price as the real value and Jcvie<l excess duty."}}, {"text": "Government of India", "label": "ORG", "start_char": 979, "end_char": 998, "source": "ner", "metadata": {"in_sentence": "An appeal to the Customs Collector failed, whereupon the appellant Company lodged a revision application before the Government of India."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 1921, "end_char": 1926, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 2147, "end_char": 2163, "source": "ner", "metadata": {"in_sentence": "The appellant c9mpany, thereafter, filed a writ petition before the Delhi High Court for appropriate relief, but was without success."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 2317, "end_char": 2322, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 2334, "end_char": 2345, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Appraiser df Customs, Bombay", "label": "ORG", "start_char": 2382, "end_char": 2410, "source": "ner", "metadata": {"in_sentence": "The respondent contended' before .the Court that whatever claims were found not in time as required by s. 40 of'the Sea Customs Act have been correctly rejected by the Appraiser df Customs, Bombay, and therefore, the appellant-Company had nd claim."}}, {"text": "Sections 29 and 30", "label": "PROVISION", "start_char": 2795, "end_char": 2813, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 3021, "end_char": 3031, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 3072, "end_char": 3082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 3481, "end_char": 3486, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3596, "end_char": 3624, "source": "ner", "metadata": {"in_sentence": "816 DJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Delhi High Court at New Delhi", "label": "COURT", "start_char": 3739, "end_char": 3768, "source": "ner", "metadata": {"in_sentence": "Appeal btY special leave from the judgment and order dated April 5, 1967 of the Delhi High Court at New Delhi in letters Patent Appeal No."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 3860, "end_char": 3870, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3878, "end_char": 3899, "source": "regex", "metadata": {}}, {"text": "N. S. Bindra", "label": "OTHER_PERSON", "start_char": 3944, "end_char": 3956, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and Vineet Kl!.mar, for the appellant and petitioner."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 3958, "end_char": 3972, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and Vineet Kl!.mar, for the appellant and petitioner."}}, {"text": "Vineet Kl!.mar", "label": "LAWYER", "start_char": 3977, "end_char": 3991, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, S. K. Dholakia and Vineet Kl!.mar, for the appellant and petitioner."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 4028, "end_char": 4040, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad and S. P. Nayar, for the respondents."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4045, "end_char": 4056, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad and S. P. Nayar, for the respondents."}}, {"text": "Portland", "label": "GPE", "start_char": 4274, "end_char": 4282, "source": "ner", "metadata": {"in_sentence": "Sawyer's Inc., Portland, U.S.A., and as such used to import Viewmaster stereoscopes, reels etc."}}, {"text": "U.S.A.", "label": "GPE", "start_char": 4284, "end_char": 4290, "source": "ner", "metadata": {"in_sentence": "Sawyer's Inc., Portland, U.S.A., and as such used to import Viewmaster stereoscopes, reels etc."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 4443, "end_char": 4448, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 4459, "end_char": 4464, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 4473, "end_char": 4494, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 20, 1957", "label": "DATE", "start_char": 5575, "end_char": 5589, "source": "ner", "metadata": {"in_sentence": "On March 20, 1957, the Government of India disposed of the said revision, accepting the appellant's contention, and directed reassessment of import duty on the said two items 1 and 2 on the basis of their invoice pric.e and also ordered refund to the appellant-company of the excess duty charged on them."}}, {"text": "Government of. India", "label": "ORG", "start_char": 5947, "end_char": 5967, "source": "ner", "metadata": {"in_sentence": "It would seem that since the said revision was pendin.11: before the Government of."}}, {"text": "s. 40", "label": "PROVISION", "start_char": 6557, "end_char": 6562, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 7027, "end_char": 7032, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 7282, "end_char": 7289, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab (at Delhi)", "label": "COURT", "start_char": 7353, "end_char": 7384, "source": "ner", "metadata": {"in_sentence": "The appellant-company thereupon filed a writ petition in the High Court of Punjab (at Delhi) under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7391, "end_char": 7399, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sec. 40", "label": "PROVISION", "start_char": 7452, "end_char": 7459, "source": "regex", "metadata": {"statute": null}}, {"text": "Union of India", "label": "ORG", "start_char": 7500, "end_char": 7514, "source": "ner", "metadata": {"in_sentence": "40 of the Act had no application,\n\n(b) the Union of India was not entitled to appropriate or retain the said excess duty, ( c) the appellant-company had a legal right to the return of the said excess duty, and ( d) that there was an error apparent on the record in the orders refusing return of the excess duty."}}, {"text": "section 40", "label": "PROVISION", "start_char": 8618, "end_char": 8628, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 8640, "end_char": 8651, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "3-4-1957", "label": "DATE", "start_char": 8702, "end_char": 8710, "source": "ner", "metadata": {"in_sentence": "he Bombay Cus'IOms House allowed some claims of the petitioner which were in time under section 40 of the Sea Customs Act, out of the list forwarded with weir letter dated 3-4-1957.\""}}, {"text": "section 40", "label": "PROVISION", "start_char": 8859, "end_char": 8869, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 8881, "end_char": 8892, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 9328, "end_char": 9335, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 9477, "end_char": 9484, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 9655, "end_char": 9662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 188", "label": "PROVISION", "start_char": 9898, "end_char": 9904, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 10476, "end_char": 10482, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 30", "label": "PROVISION", "start_char": 11210, "end_char": 11217, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 31", "label": "PROVISION", "start_char": 11419, "end_char": 11426, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 30", "label": "PROVISION", "start_char": 12781, "end_char": 12788, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 29 and 30", "label": "PROVISION", "start_char": 13007, "end_char": 13020, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 13546, "end_char": 13553, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 40", "label": "PROVISION", "start_char": 13661, "end_char": 13668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 14386, "end_char": 14391, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 15699, "end_char": 15706, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 16258, "end_char": 16265, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 16278, "end_char": 16285, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 16628, "end_char": 16635, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 16961, "end_char": 16966, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_818_829_EN", "year": 1973, "text": "UNION OF INDIA v.\n\nMAJ. I. C. LALA ETC. ETC.\n\nMarch 29, 1973 [A. ALAGIRISWAMI, I. D. Dl!A AND C. A. VAID!ALINGAM, JJ;}\n\nIndian Penal Code (Act 45 of 1860), Ss. I2()B, 420 and 511, Preven tion of Corruption Ac; (2 of 1947), s. 5(1)(d), 5(2) and 5A, Criminal law Amendment Act, 1952 Ss. 6 and 7(3) Code of Criminal Procedure Act 5 of 1898), Ss. 196A, 235 and 239-0fjence committed at more than one place-Order of which magistrate necessary--Cognizable and noncognizab/e offences-Crit'erion-Jurisdiction to try non-Government sel'~ vant with Governnient servants.\n\nPractice-Duty of court to decide on genuineness of sanctfion.\n\nTwo army officers and a businessman were put up for trial before the Special Judge under the Criminal Law Amendment Act, 1952.\n\nThey \\\\ere all charged with offences of conspiracy under s. J 20B, I.P.C. read with s. 5(2) of the Prevention of Corruption Act and s. 420 I.P.C. The businessman was charged under s. 42() and ss. 420 and 511, l.P.C. The two army officers were also charged with the offences under s. 420 I.P.C. read withs. 5(1J(d) of the Prevention of Corruption Act. After some \\\\'itnesses were examined by the prosecution, on a petition by the three accused, the High Court quashed the charges and the proceedings on the grounds. ( 1) that the officer who investigated the case was not competent to do so; (2) that the offences were non-eognizable and hence the Special Judge could not take cognizance of them without sanction under s. 196A.\n\nCr.P.C.; and (3) in view of the enormous length of time that elapsed between the date the registration of the case and the examination of the\n\n\\\\'itnesss (about 4! years), to proceed further with the case would be an abuse of the process of Court causing harassment to the accused.\n\nAllowing the appeal to this Court, HELD; (I) (a) Under s. 5A of the Prevention of Corruption Act, before it was amended in 1964, no officer below the rank of Deputy Supe~ rintendent of Police could investigate into .offences punishable under Ss .. 161, 165, 165A l.P.C., or under s. 5 of the Prevention of Corruption Act, without the orders of a Presidency Magistrate or the Magistrate First Class.\n\nWhere an offence is committed in more than one place the order of every Magistrate within \\Vhose jurisdiction the offence or part of the offence was committed was not necessary to enable the investigation to be carried on.\n\nAll that is necessary is that the fagistrate who makes the order under s. 5A should have territorial jurisdiction over the place where any part of the offence took p1ace.\n\nIn the present case; the offence of conspiracy was aileged to h.ave been committed both at Tejpur as well as at Gauhati and the Inspector concerned had obtained the order Of the First Class Magistrate, Tejpur.\n\n[821H; 822A-C]\n\nChinnappa v. State of Mysore, A.LR. 1960 Mysore 242, Chatterjea v.\n\nDelhi Special Police Establish111ent I.L.R. 1969 Assarn and Nagaland 275 and Union of India v. B. N. Ananthdpadn1anabbiah, A.LR. 1971\n\nS.C. 1836, referred to.\n\n(b) The High Court expressed doubt whether the order of the Magis trate of Tejpur was a genuine one.\n\nIf he had any such doubt it was the Juty of the Judge to have gone into the matter thoroughly and satisfied\n\n.lL_ _\n\nhimself whether the order was genuine or not, and given a categorical finding on the matter. There should have been no room allowed for any doubt, or 5uspicion of any underhand dealing or unfair conduct, in a matter of this kind. [823A-Cj\n\n(2) Under Schedule II of the Criminal Procedure Code offences under Ss. 161 to 165, I.P.C. and offences punishable with imprisonment for life or impri\"onment o'f 7 years and up\\vards are shown as cognizable offences.\n\nUnder s. 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years.\n\nTherefore, an offence under s. 5 of the Prevention of Corruption Act is a cognizable offence.\n\nThe words 'notwhhstanding any thing .contained in the Code of Criminal Procedure\", in the section merely carve out a limited exemption from the provisions of Criminal Procedure Code in so far as they limit theclass of_ persons who are competent to investigate, and to arrest without a warrant. The mere fact that under the Act certai, n restrictions are placed as to the officers who are competent to investigate into the offences mentioned in s. SA would not make those 1 offences any the less cognizable. Therefore, the offences under s_ 161, 165 and 165A of the l.P.C. and s. 5, Prevention of Corruption Act, are cognizable offence!; i and there is no question of_ their being cognizab~ i'_[ 'investigated bya Deputy Superintendent of Police and non-cognizable\n\n\\\\hen investigated by an Inspector of Police; nor can there be any question of these offences being cognizable if --investigated under s. 156, Cr.P.C. but not when investigated under s_ SA, Prevention of Corruption Act . It is illogical to say that offences would be cognizable in certain circumstances and nori-cognizable in certain other circumstances. Therefore, the need for a sanction under s. 196A, Cr.P.C. does not arise.\n\n[824A-H;\n\n815A-D; 827]\n\nUni.on of India v. B. N. AnanthapadmGnabhiah, A.I.R . .1960 Mysore 242, Uni@n of India v. Mahesh Chandra, A.I.R. 1957 Madhya Bharat E 43 and Public Prosecutor v. Sheikh Shariff, A.LR. 1965 A.P. 372, referred to. '\n\nTaj Khan v. The Stare, A.I.R .. 1956 Rajasthan 37, Ram Bijhuma/ v.\n\nThe State, A.LR. 1958 Bombay 125 and Gulabsingh v. State, A.I.R. 1962 Bombay 263, approved. . · . •\n\n. G. K. Apte. v. Uio~ of: India, A.I:R. 1970. Assam & Nagal~d 43, F disapproved. .\" .\n\n(3) The need to order re-investigation or to begin the trial° again after the sanction u:ider s_ 196A is _obtained, and the consequent inordinate <lelay and harassment of the officers concerned; do not arise at all. Hence, there is no questin of quashing the charges on that ground. [827G-H] ·\n\n(4) Under s. 6 and 7(3) of the Criminal Law Amendment Act, 1952, and Ss. 235 and 239, Cr.P.C. the businessman (private individual) and the two army officers, (public servants) could be tried together. [829ACC]\n\nThe State of Andhra Pradesh v. Kandimalla Suhbaiah & Anr. [19621 1 S.C.R. 194, followed. . . .\n\nCRIMINAL APPELLATE JuRISDSCTION: Criminal Appeals.Nos. 161 to 163 of 1970. __ . .\n\n. Appeals by certificate from the judgment and order dated May 23, 1969 of the Assam and Nagaland High Conrt at Ganhati in Cr. Rev. Nos. 36, 39 and 46 of 1968. ·\n\nD. Mookherjee, A vtar Singh, G. Das, S. P. Nayar and R. N.\n\nSachthey, for the appellant.\n\nNuruddin Ahmad and N. N. Keswani, for the respondent.\n\nHarbans Singh, for the respondents.\n\nV. M. Tarkunde, A. L. Arora and D. D. Sharma, for the res- B pondent.\n\nThe Judgment of the Coul\"l was delivered by\n\nALAGIRISWAMI, J.-Two o, f the appellants, Major Lala and Lt. Col. Khanna are Army officers and the appellant in the 3rJ .appeal, Gupta, is a businessman of Gauhati.\n\nAll of them were put up for trial b., fore 1he Special Judge appointed under tl:~ Criminal Law Amendment Act 1952.\n\nOne charge which WJ-' common to all the three of them was that between June 1962 and January 1963 all of them agreed to commit or cause to be committed offences under section 5(2) of the Prevention of Corruption Act, and of chealing punishable under section 420 of the Indian Penal Code, and 1hese offences having been committed in pursuance of a conspiracy were punishable under section 120B\n\no.f the Indian Penal Code read with section 5 (2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. Gupta. the businessman was charged under section 420 I.P.C. as well as section 511 read with section 420 I.PcC The two Army officers were al'o charged with offences under section 420 read with section 5 (I) ( d) Qf the Prevention of Corruptioll Act.\n\nThe case was filed before !he Special Judge on 28-6-1963 and the charge was framed on 13-2-65. After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed pe1itions under section 56JA read with section 439 of Code of Criminal Procedure before the High Court of Assam & Nagaland on 28-3-68, 1-4-68 and 10-4-68 respectively lor quashing the charges. A learned Single Judge allowed these petitions on 23-5-1969 and q11ashed the charges and the proceedings before !he learned Spedal Judge. He did this on three , grounds : (I) that the officer who investigated the case was not competent to do so;\n\n(2) that the offences that were ¢ing tried were , noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 196A of the Code of Criminal Procedure, and ( 3 ) tha1 in view of the enormous length of time bet-\n\n'Yeen 2-2-63, the date on which the case was\n\nregistered and 1-4-68, upto which date some witness had been examined, the last witness having been examined on 15-1-67, it entailed undue harassment to the accused persons and the .. proceedings have to be quashed to prevent fur: ther harassment, abuse of the process of the court and vexation to the accused persons.\n\nThese three appeals have, therefore, been filed by the Union of India by certificate grantd by the High Court.\n\nWe shall first oi all deal with the question whether the officer who investigated into these cases was not properly authorized to do so. The officer was an Inspector of the Delhi Special Police Establishment. Under section 5A of the Prevention of Corruption\n\nAt, btefore it was amended in 1964, no officer below the rank of the Deputy fpperintendent of Police could investigate into offences punishable under sections 161, 165 and 165A of the Indian Penal\n\nCode or under section 5 of the Prevention of Corruption Act without the order of a Presidency Magistrate or a Magistrate of the First Class.\n\nIn this case the Inspector concerned had obtained the order of the First Class Magistrate of Tezpur.\n\nThe argument before the High Court, which was accepted by the learned Judge, was that as the offences of conspiracy were alleged to have Geen committed both at Tezpur as well as at Gauhati, the investigation based on the order of the Tezpur Magistrate alone was not a proper one. In other words, the.. argument was thut unless the Inspector had been authorized to investigate not only by the First Class Magistrate of Tezpur but also by the First Class Magistrate of Gauhati district, he could not have done so.\n\nThe learned Judge referred to and relied upon the decision in Chinnappa v. State of Mysore('). It was decided in that case that any First Class Magistrate appoirrte\\I in a district can issue orders under section 5A of the Prevention of Corruption Act for investigation of a case. From this the learned Single Judge drew the conclusion that in respect of an offence said to have been committed at Gauhati as well as at Tezpur the order oi the Tezpur Magistrate was noti enough. He also relied upon the decision of the High Court of Assam and Nagaland in Chatterjee v.\n\nDelhi Special Police Establishment( 2 ), This decision has been upheld by this Court in Union of India v. B. N. Ananthapadmanabhiah(8 ). But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid.\n\nThat decision is no authority for the propositiorr that where an offence is committed in more than one place the order of every Magistrate within whose jurisdiction the offence or part of the offence was committed was necessary in order to\n\n(1) A. I. R. 1960 Mysore 242.\n\n(2) J. L. R. 1969 Assam & Nagaland 275.\n\n()) A. I. R. 1971 S. C. 1836.\n\n822 SUPREME COURT REl'OR TS [1973] 3 s.c.R.\n\nenable the investigation to be carried on. All that is necessary is that the Magistrate who makes the order under section 5A should\n\nave territorial , iurisdiction over the place where any part of the ingredients of the offence took place.\n\nThat criterion is amply satisfied in this case. On principle also such a contention seems to be devoid of any. substance. The offence o.f conspiracy or fo:· that matter any ather offence might consist of a series of 11cts and incidents spread over the whole country. Very often one conspirator or one of the offenders might not have even met the other conspirator or offender.\n\nTo accept this contention would be to hold that the Police should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of the offence has taken place. We have no hesitiition in rejecting it.\n\nHe also seemed to have had some doubt as to wtiether the order of the Magistrate of Tezpur produced before him was a genuine one. To say the least, the attitude of the learned Judge is most surprising. To put it in his own words :\n\n\"It does not appear that any order of a Magistrate form part of the record. But at the time of hearing, such an order was placed before me on behalf of the Prosecution. The application on which the order is said to have been passed by the Magistrate appears to have l*en addressed to the Court of the Magistrate first class at Te2'Pur, wherein it was stated that for preoccupation of the Deputy Superintendent of Police, th~ investigation was sought to be made by an Inspector of Police. The petition is unnumbered undated. What appears curious is that although the application was made before a Magistrate of the first class, the order passed is supported by a seal of the District Magistrate, Darrang. The order of the Magistrate runs as follows :-\n\n\"Paper and F.I.R. seen. Shri H. B. D. Baijal, Inspector is permitted to investigate the case.\"\n\nThere is an illegible signature with date 4-2-63 and below the signature the official designation has not .been stated. It appears that no order-sheet of the Magistrate has been produced in this regard and in above circumstances, it cannot be unequivocally said that this document was obtained in due course of business in compliance with section SA of the Prevention of Corruption Act. Even assuming that the order is free from doubt, learned counsel appearing for the petitioners has urged before me that since the venue of the offences has been clearly stated in the charge, the pennission given by the Magistrate for investigation of the offences at Gauhati is not valid.\"\n\n-..:\n\nIf he had any doubts about the genuineness of the order of sanction it was his duty to have gone into 'the matter thoroughly and satisfied himself whether the order was genuine or not. It was his duty to have given a categorical' finding regarding the matter.\n\nThere should have been no room allowed for any doubt or suspicion of any underhand dealing and unfair conduct in a matter ol this kind. It was even alleged on behalf of the respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution. If that was so it proves a woeful lack of care on the part of the learned Judge. He should have retained th~ order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not. We have 1*[ore us the order_ of the Superintendent of the Special Police Establishment dated 2-2-63 entrusting the invetigation to Inspector Baijal and directing him to obtain the necessary permission from a competent Magistrate for doing so. We have also been shown the papers relating to the prosecution, papers given •to the accused under section 173 of the Code of Criminal Procedure.\n\nItem 71 of those papers relates to the order of santion dated 4-2-1963 given by the Magistrate of Tezpur authorizing the Inspector of the S.P.E. to investigate. Thus, there is no doubt at all that Inspecor Bai.ial had been authorized to in vestigale into this case. It only shows rather superficial way the learned Judge chose to deal with this matter.\n\nThe next question is whether offences under section 161, 165 and 165A of the Indian Penal Code and section 5(2) ol the Prevention of Corruption Act are cognizable or non-cognizable offences.\n\nThis becomes important for the purpose of deciding whether a sanction under section 196A is necessary. The sanction necessary under section 6 of the Prevention of Corruption Act and section 197 of the Code of Criminal Procedure has been accorded by the Government of India. What was contended by the respondents before the High Court and was accepted by that Court was that these offences being non-cognizable offences a sanction under section 196A(2) is necessary and that prosecution without such sanction is bad. Cognizable offence is defined in\n\nection 4(1)(f) of the Code of Criminal Procedure as an offence for which a police officer, within or without the presidency towns, may in accordance with the second schedule, or under any law for the time bieing in force, arrest without warrant. The argument which appealed to the learned Judge of the Higli Court was that as under section SA of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences punishable under section 161, 165 or 165A I.P.C. and section 5 of the Prevention ol Corruption Act, they were not offences for which any police officer can arrest without warrant, and therefore,\n\nthey are not cognizable offences. The same argument was repeated before this Court by Mr. Tarkunde, emphasising that \"a police officer\" means \"any police officer\" and as any police officer cannot, under section SA of the Prevention of CorruJl'lion Act, arrest wilhout warrant but only offipers of and above he rank of Dy.\n\nSuperintendent, the offences mentioned in that section are noncognizabj.e offences. If we pursue the same line of argument and look at the definition of non-cognizable offence in section 4( 1 )(n) which defines non-cognizable offence as an offence for which a police officer, within or withoU't a Presidency-town, may not arrest without warrant, H might mean that as these are cases where a police officer of the rank of Dy. Superintendent and above can arrest without warrant these are not non-cognizable offences either.\n\nHow can there be a case which is neither cognizable nor-cognizable ? It was sought to be argued tha! these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and suprior officers and non-cognizable when they are investigated blY officers below the rank of Deputy Superintendents.\n\nWe fail to see how an offence would be cognizable in certain circumstances and non-cognizable in certain other circumstances. The logical consequences of accej>ting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents o.f Police.\n\nOne supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section SA would not make any difference to this situation. We do not consider that this is a reasonable interpretation to place.\n\nUnder Schedule II of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences. At the end of that Schedule offences punishable with death, imprisonment for lite or imprisonment for 7 years and upwards are also sh6wn as cognizable offences. Under section 5 (2) of the Prevention of Corruption Act the sentence may extend to seven years. Therefore, an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule 1I to the Code o( Criminal Procedure a cognizable offence.\n\nTherefore,· the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would not make those offences any the less cognizable offences.\n\nThe words \"notwithstanding anything corrtained in the Code of Crimi nal Procedure\" found at the beginning of section SA( 1) merely carve out a limited exemption from the provisjons of the Code of Crir.1inal Procedure in so far as they limit the class of persons who\n\nare competent to investigate into offences mentioned in the section and to arrest without a warrant. It does not mean that the whole of. the Code of Criminal Procedure, including Schedule Inhereof, is made inapplicable. Under section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall or> investigated, inquired into, tried, and otherwise dealt with according to the provisions therein contained. Also, all offence> und; ir any other law (which would include the Prevention of Corruption Act) shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time hieing in force regulating the manner or place Cl[ inwstigating, inquiring into, trying or otherwise dealing with such offences.\n\nSection 5A of the Prevention of Corruption Act should be related to this provision in section 5 (2) of the Code of Criminal Procedure, which limits the application of the provisions Of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring\n\ninto, trying or otherwise dealing with such offences.\n\nTI1e only change which section 5A of the Prevention of Corruption Act makes is with reisard to officers competent to investigate and arrest without warrant, in all other respects the Code of Criminal Procedure applies and, therefore, there is no doubt that all offences mentioned in section 5A of the Prevention of Corruption Act are\n\ncognizable offences.\n\nThe Assam High Court seem~ to have taken a line of its own in this matter. In G. K. Apte v.\n\nUnion of India('1) curiously enough the Bench, of which the learned Judge who dealt with this case was a member, took the view that though an offence under section 161 is a cogni:z:able offence, if investigations were made under section 156 of the Code of Criminal Procedure. there would be no need for a sanction under section 196A of the Code of Criminal Procedure, and there can be a conviction under section 161 of the Indian Penal Code, but if the investigation is mad~ under section 5A of the Prevention of Corruption Act it will b~ an investigation into a non-cognizable offence and there should be\n\na sanction under section 196A for the trial following such investigation. For this conclusion the decision of this Court in H. N.\n\nRishbud & Inder Singh v. The State of Delhi(') was relied upon.\n\nWe can see nothing in that case to support this conclusion.\n\nNor are we able to see how if the investigation into an offence of misconduct punishable under section 5 (2) is done by a police officer of high rank the offence is cognizable and if inves'tigated by an officer of a lower rank it is non-cognizable.\n\nThat cannot be a proper criterion for deciding whether an offence is cognizable or non-cognizable.\n\nUnless there are clear and compelling reason>\n\n(I) A.I. R.1970 Assm & Nagaland 43. 5-L 797Sup.C. I. /73\n\n(Cl A. I. R. 1965 S. C. 196.\n\nto hold otherwise the division of offences given in the Code of Criminal Procedure as cognizable and non-cognizabje should be given effeot to.\n\nWhen the same Code makes sanction undr s. 196A necessary for trial of non-cognizable offences it clearly contemplates non-cognizable offences as defined in the Code.\n\nTher~ is no justification for relying upon extraneous considerations mid far-fe_tched reasoning in order to get over !he effect of these pro-\n\n• • l vmons.\n\nWe may now refer to certain decisions oJ' various High Courts on this point. In Taj Khan v. The State(') it was held :\n\n\"The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment at !he hands of subordinate police officers) under the proviso to S. 3 of the said Act cannot lead to the conclusion that such offence is non-cognizable.\"\n\nIn Ram Rijhumal v. The State(') it was held :\n\n\"The provisions of S. 3, Prevention of Corruption Act can only have one meaning, and the meaning is that an offence under S. 16SA of the Penal Code has to be deemed to be a cognizable. offence for the purpose of 'the Code of Criminal Procedure. It is only (1ecause the Legislature enacted S. S-A of the Prevention of Corruption Act that, so far as the Presidency town of Bombay was concerned, no police officer below the rank of a Superintendent of Police could in the case cif an offence under S. l 6S A of the Penal Code, investigate it without the order of a Presidency Magistrate.\n\nThere is nothing in the language of S. S-A which would suggest that an offence under S. 16S-A oJ' the Penal Code is not to be treated as a cognizable offence.\"\n\nIn Gulabsingh v. State(') it was held that:\n\n\"Offencjl under S. 161, I.P.C. is a cognizable offence.\n\nIts nature is not affected by either S. 3 or S.\n\nSA of the Prevention of Corruption Act. The requirement that in a cognizable offence, a police officer should be able to arrest without warrant, is without any limitation and section SA cannot be split up to mean that an offence can be cognizablle in reference to one officer and nO! in reference to another.\"\n\n( 1) A. I .R. 1956 Rajasthan 37.\n\n(3) A. I .R. 1962 Bombay 263.\n\n(2) A. I .R. t958 Bombay 125.\n\nThe learned Judges specifically dissented from the decision in Union of India v. Mahesh Chandra(1). In Public Prosecutor v.\n\nShaik Sheriff(') it was held that \"these offences cannCYt be treated as non-cognizable offences when investigated by an officer below the rank of Del?uty Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presidency Magistrate or a Magistrate of th~ First Class. In the same way, offences under section 5 of the Act cannot be treated as non-cognizable even when investigated by a low rank officer.\n\nThus, the provision .in S. SA is of the nature of a special provision which applies to offences specified therein which are cognizable offences including 1hose under section S under all circumstances.\" They also referred to the deciSion in Union of India v. Mahesh\n\nChandra (supra) to the effect that an offence under S. 161 l.P.C. and under sub. s. 2 of S. S, Prevention of Corruption Act is cognizable so far as officers of the rank of a Deputy Superintendent o4' Police and above are concerried, but so far as the officers .below\n\nthe rarik of Deputy Superintendent of Police are concerned the said ,11Iences are non-cognizable in so far as they cannot investiga1e them without the permission of a Magistrate of the Fil ; t Class, and held that :\n\n\"the learned Judges only intended to emphasise the provision in S.S-A and chose to refer to it as a noncognizable aspect of the offences comprise.ct in the Act and to describe that aspect also as non-cognizable for the limited purpose of the provision in S. S-A.\" Thus, the preponderance of opinion. of the various High CouPts is in favour of the view we are taking.\n\nWe are, therefore, clearly of opinion that the offences under sections 161, 16S and 16SA of the Indian Penal Code and section 5 of 1he Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non-cognizable when investigated by an Inspector of Police. Nor can there be any question of those offences being cognizable if they are investioated under section 1S6 of the Cr. P.C. but not when investigated in accordance with the provisions of section SA of the Prevention of Corruption Act.\n\nThe question, therefore, of the need for a sanction under section 196A does not arise.\n\nConsequently, the need to order re-investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delav and harassment of the officers concerned, reasons that weiihed with the learned Single Judge for quashing the charges, does not arise. It may incidentally be mentioned that the respondents took nearly three years before they moved the High\n\n(1) A. I. R. 1957 Madhya Bharat 43.\n\n(2) A. I. R. 1965 A. P. 372.\n\nCourt for quashing the charges and are, thus, to a considerable extent responsible for the delay.\n\nOn hlehalf of Mr. Gupta it was argued that he cannot be tried along with the two Anny officers. Under section 6 of the Criminal Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under section 161, 165 or 165A of the Indian Penal Code or sub-section ( 2) of section 5 of the Prevention of Corruption Act, and under sub-section ( 3) of section 7 of the same Act a special judge, when trying any case, may also try a.ny offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Proce dure, 1898, be charged at the same trial. Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to fonn the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, and under section 239 persons accused of the same offence committed in the course of. the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence may be charged and tried together. In The State of Andhra Pradesh v. Kandimalla Subbaih & Anr.(1), this Court observed :\n\n\"No doub.t, the offence mentioned in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is whether aJI these persons can be jointly tried in resoect of all these offences.\n\nTo this kind of charge s. 239 would apply.\n\nThis section provides that the following persons may be charged and tried together. namely : ( 1 ) persons accused of the same offence committed in the course of the same transaction;\n\n(2) persons accused of an' offence and persons accus\n\ned of abetment or an attempt to commit such an offence;\n\n(3) persons accused of different offences committed in the course of the same transaction.\n\nClearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1.\"\n\nIn that case the first accused was a public servant and the other accused were private individuals to whom the first accuoed was alleged to have sold transport permit books intended to be issued\n\n(I) [1962] I S. C. R. 194.\n\nUl<ION v. I. c. LALA (Alagiriswami, I.) 829\n\nto Central Excise Officers for granting permits to perSQns applying bona fidie for licences to transpoit to1*tcco.\n\nThis Coun also pointed out that \"sub-s. (3) of s. 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in s. 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial, and clearly, therefore, accused no. 1 could be triec; I by the Special Judge for offences under s. 12()B read with ss. 466, 467 and 420 I.P.C., and similarly the other accused who are said to have abetted these offences could also be tried by the Special Judge.\"\n\nThere is, therefore, no objection to Mr. Gupta being tried along with the two Army officers.\n\nThough in the revision petitions filed before the _High Court the question as to whether on the evi<!ence produced before the\n\nSpecial Judge the offences with which the respondents had been charged coulq be said to have been prima facie established, was raised, the learned Single Judge has not dealt with that question apparently because it was not argued before him.\n\nWe do not, therefore, propose to say anything about the merits of the case.\n\nIt is not necessary to refer to the decision in Madan Lal v. state of Punjab(1 ) and Bhanwar Singh v. Rajasthan(2 ) which are relied upon on behalf of the appellants in the view that we have taken that all the offences with which the accused are charged are cogn.izable offences, and therefore, the question whether charges which requ.ire sanction under s. 196A could be tried alongwith charges whichdid not require such sanction and the entire charges are vitiated for want of sanction, as held by the learned Single Judge, does not arise.\n\nThe appeals are allowed and the order of the learned Single Judge is set aside.\n\nThe Special Judge will now proceed to deal with the cases aiid dispose of them as expeditiously as possible as the matter has been pending for a long time.\n\nV.P.S.\n\nAppeals allvwed.\n\n(I) [1967] 3 S. C. R. 439.\n\n(2) [1968] 2 S. C. R 528.", "total_entities": 229, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "MAJ. I. C. LALA ETC. ETC", "label": "RESPONDENT", "start_char": 19, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "MAJ. I. C. LALA ETC. ETC", "offset_not_found": false}}, {"text": "March 29, 1973", "label": "DATE", "start_char": 46, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "March 29, 1973 [A. ALAGIRISWAMI, I. D. Dl!A AND C. A. VAID!ALINGAM, JJ;}\n\nIndian Penal Code (Act 45 of 1860), Ss."}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 62, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "A. 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the enormous length of time bet-\n\n'Yeen 2-2-63, the date on which the case was\n\nregistered and 1-4-68, upto which date some witness had been examined, the last witness having been examined on 15-1-67, it entailed undue harassment to the accused persons and the .. proceedings have to be quashed to prevent fur: ther harassment, abuse of the process of the court and vexation to the accused persons."}}, {"text": "Union of India", "label": "ORG", "start_char": 9073, "end_char": 9087, "source": "ner", "metadata": {"in_sentence": "These three appeals have, therefore, been filed by the Union of India by certificate grantd by the High Court."}}, {"text": "section 5A", "label": "PROVISION", "start_char": 9345, "end_char": 9355, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 161, 165 and 165A", "label": "PROVISION", "start_char": 9539, "end_char": 9565, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 9601, 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{"document_id": "1973_3_830_834_EN", "year": 1973, "text": "SAXBY AND FARMER. (INDIA l PVT. LTD. v.\n\nTHEIR WPRKMEN\n\nMarch 29, 1973\n\n(A. N, GROVER AND C. A. VA!DIALANOAM, JJ.]\n\nLubour Law-Conipany producing essential goodi for ratlways- Wliether workmen entitled to unpaid festival holida, vs In addition to ren paid holidays.\n\nThe appellant company was a unit of the Engineering Industry in West Bengal having three factories in varibus parts of Calcutta. It was solely engaged in the production of brakes and signalling equipment for the railways.\n\nThe Government of West Bengal declared the appellant to be a public utility service in exercise of power conferred by s. 2(c) (vi-) of the Industrial Disputes Act, 1947, and also an 'essential service' under the Defence of India Rules..\n\nAt the instance of the appellant company the Government of West Bengal re\n\n1ferred to the Industrial Tribunal the question \\Vhether the nine unpaid festival holidays allowed by the COIDw pany to its workmen in addition to paid festival and other holidays should be continued.\n\nThe Tribunal, impressed by the fact that unpaid festival\n\nholidys had been enjoyed by the workmen for a long time gave its award in fa, nur of the workmen.\n\nAllowing the company's appeal,\n\nHELD : The Tribunal was whoijy oblivious of .the present day conditions and the necessity for increased producti.on, particularly, in the n1attcr of utility companies and the companij!s that are producing goods E. for essential services like those carried on by the Indian Railways.\n\nThis Court has observed on more than one occasion that it is generally accepted that there .are too many public holidays in our country, and that when _the need for industrial production is urgent and paramount, it may be advisable to reduce the nu.mber of such holidays in industrial concerns.\n\nIndeed it cannot be disputed that a necessary step in the direction of increasing the country's productivity is the reduction of number of ~~~.\n\nTher~ was accordingly no reason or justification for unpaid holidays not being curtailed in the present case.\n\nAll the conditions which were necessary had been satisfied and the appellant was carrying on the kind of \\vork which requires efficiency and increased productio:o. ![833E, 834AJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1923 of !968.\n\nAppeal by special leave from the Award dated March 11, 1968 of the VIIth Industrial Tribunal, West Bengal Calcutta in Case No. VHI-287 of 1966 published in the Calcutta Gazette dated April 18, 1968.\n\nD. N. Mukherjee, for the appellant.\n\nThe respondent did not appear.\n\nSAXBY & PARMBR PVT. LTD, V; WORKMBN ( GrO\\'tr, J.) 8 31\n\nThe Judgment of the Court was delivered by ,\n\nGROVER, J.\n\nThis is a .. appeal by special leave from the award of the Seventh Industrial Tribunal, West Bengal.\n\nThe appellant company is a unit of the Engineering Industry in West Bengal having three Factories in various parts of Calcutta.\n\nThe company employs about 1650 workmen in all these factories.\n\nAccording to the appellant, it is solely engaged in the production of brakes and signalling equipment for the railways.\n\nIts products, it is claimed, are essential for tile smooth working of the railways, which are its sole customers.\n\nIn order to ensure smooth production and uninterrupted flow of supply, the government of West Bengal declared the appellant to be a public utility service in exercise of the power conferred by sub-clause (vi) of clause (c) of s. 2 of the Industrial Disputes Act, 194 7, and also as 'essential service' under the De.fence of India Rules.\n\nIt is said as a unit of engineering industry, the appellant was a party to certain omnibus major awards made in 1958 and the earlier awards of 1949 and 1950. Ln these awards, the service conditions, including leave and holidays of the workmen were standardised.\n\nThe appellant has been granted leave and holidays as per those awards and in accordance with the provisions of the Factories Act, the Shops and Establishment Act and the Employees State Insurance Act. The paid holidays which are being granted are ten in a year.\n\nThere used to be a system in the appellant company's establishment of granting nine days unpaid festival holidays in addition to the paid festival and other holidays.\n\nIt is pointed out that in no other major industry in the region this system of unpaid festival holidays is being followed any longer.\n\nAt the instance of the appellant-company, the government of F West Bengal referred the following issue by an order dated June 7, 1966 to the industrial tribunal for adjudication.\n\n\"Curtailment of unpaid festival holidays\".\n\nIn the written statement, which was filed by the appellant, it was stated in para. 8 that the company allows nine festival unpaid holidays, and the conti- G nuance of the said holidays would not only entail loss of wages to the workmen but also Joss of production and would prejudicially affect the country's economy. It was also asserted that the system of granting unpaid holidays was no longer being followed in the engineering industry.\n\nMoreover, other holidays enjoyed by the! workmen along with the workmen of other similar units were far H in excess of what prevails in other countries.\n\nThe union filed a written statement on behalf of the workmen.\n\nIn reply, the position takenup was that the assertion of the com-\n\nSUPRE11E COURT REPORTS\n\n(1973] 3 S.C.R.\n\npany that the nine unpaid holidays should be discontinued, was in clear disregard of the principle and practice followed so far in the matter of giving benefits in the industrial concerns.\n\nIt was said that the trend of the decisions of the Industrial Tribunals in respect of major Engineering concerns has always been against the curtailment of the existing facilities, and that the management of the appellant-company had made an unfair attempt to curtail those benefits, relating to unpaid festival holidays.\n\nThe main ground given was that in the interest of industrial peace, production and better relations between the workmen and the management, the workmen should be kept contented.\n\nAny attempt to curtail the existing benefits according to time, honoured practice, would pro voke discontent and labour unrest.\n\nEach side examined one witness, P.W. I, Gobind Day, who appeared on behalf of the appellant, supported the assertions made in the written statement filed on behalf of the appellant.\n\nIn other words, he stated that 19 holidays were being given to the workers at present, out of which ten were paid holidays and the rest, without pay.\n\nTen festival holidays were allowed on the basis of the award made by the tribunals.\n\nHe admitted in his cross-examina tion that in Bengal holidays for certain days like Netaji's birthday or for religious festivals, were considered very essential. O.P.W.!, who appeared on behalt of the workers and who was the working president of the Union at the time he gave evidence, merely con tented himself by saying that nine unpaid festival holidays had been enjoyed by the workers since he joined the factory and prior to\n\nthat time.\n\nAccording to him, even on festival holidays, 11orkers attended the factory and worked there and drew wages.\n\nOvertime wages were paid at the rate of 150% of the basic wages.\n\nThe industrial tribunal does not appear to have given any substantial reasons for coming to the conclusion that the unpaid holidays should not be curtailed.\n\nAccording to it, there was no evidence to show to what extent the Railways which were the sole customers of the company, depended on the company to meet their requirements.\n\nThe tribunal proceeded to say that the company might be solely engaged in the production of signalling equipment, but that was not sufficient to show the nature and extent of the dependence of the Railways on the supplies of the company. The representative of the company had argued that because the number of the holidays was large, the production was suffering and the company was unable to meet the demands of the Railways in time.\n\nThe Tribunal, however, thought that in the absence of any evidence to that effect, it could not be held that the production was not adequate or was suffering because of the number of holi-\n\nSAXBY & FARMER PVT, LTD. v. WORKMEN (Grover,!.) 833\n\ndays for the workers.\n\nThis is how the Tribunal reasoned in the matter:\n\n\" .... in my humble opinion without reducing the number of important festival holidays of any community in India-which is the home of different communities and religions the number of working holidays can be increased as a compensatory measure by converting a good many Sundays to working days.\n\nI think this is quite a feasible proposition and can be offered as a suggestion to those who take the view that as festival and religious holidays are quite large in number they should be reduced without reference to the feelings of the affected religious group or community. But then this is too wide and too large a question for my embarkation and perhaps such views will not find favour with the west oriented intellect and so-called cosmopolitan outlook.\n\nAnyway, that I say is that there is no good ground to cut down the number of festival holidays simply because the number of overall holidays is large.\" The tribunal appears to have been impressed by the contention raised on behalf of the workmen that they had enjoyed the facilities for a long time.\n\nIt appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production, particularly, in the matter of utility companies and the companies \\hat are producing goods for essential services like those carried on by the Indin Railways. This Court has observed on m.ore than one occasion that it is generally accepted that there are too many public holidays in our country, and that when the need for industrial production, is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns.\n\nIndeed, it cannot be disputed that a necessary step in the direction of increasing the country's productivity is the reduction of number of holidays.\n\nSee Pfizer (P) Ltd. Bombay v. The Workmen (1) and Associated Cement Staff Union and another v.\n\nAssociated Cement Company and others. (2 ) In Pfizer's case, the holidays which were being granted were reduced lo ten .from the inumber\n\nwhich the workers were enjoying previously in accordance with those sanctioned under the Negotiable Instruments Act i.e., 16 holidays.\n\n(l) [1963) Supp, 2 S. C.R. 627, 651. (2l [1964) 1 L L.J. 12. 15.\n\n, .. ,,\n\nSUPRBME COURT REPORTS [1973] 3 s.c.R.\n\nOn giving the matter careful consideration, we find no reason or justification for unpaid holid11ys not being cllrtailed in the present caso. All the conditions which are necessary have been satisfied and the appellant is carrying on the kind of work which requires efficiency and iqcreased production.\n\nThere should be more concentration 011 increase of production and efficiency than on enjoying the holidays if this country is to march ahead on the road to prosperity. We would, accordingly, allow this appeal and set aside the award. In other words, the system of unpaid holidays will not continue with effect from the 1st January, 1973.\n\nThere will be no order as to costs.\n\nG.C.\n\nAppeal allowed.", "total_entities": 28, "entities": [{"text": "SAXBY AND FARMER. (INDIA l PVT. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "SAXBY AND FARMER (INDIA) PVT. LTD", "offset_not_found": false}}, {"text": "March 29, 1973", "label": "DATE", "start_char": 56, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "v.\n\nTHEIR WPRKMEN\n\nMarch 29, 1973\n\n(A. N, GROVER AND C. A. VA!DIALANOAM, JJ.]"}}, {"text": "GROVER", "label": "JUDGE", "start_char": 79, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "GROVER", "offset_not_found": false}}, {"text": "Wliether workmen", "label": "RESPONDENT", "start_char": 176, "end_char": 192, "source": "metadata", "metadata": {"canonical_name": "THEIR WORKMEN", "offset_not_found": false}}, {"text": "West Bengal", "label": "GPE", "start_char": 331, "end_char": 342, "source": "ner", "metadata": {"in_sentence": "The appellant company was a unit of the Engineering Industry in West Bengal having three factories in varibus parts of Calcutta."}}, {"text": "Calcutta", "label": "GPE", "start_char": 386, "end_char": 394, "source": "ner", "metadata": {"in_sentence": "The appellant company was a unit of the Engineering Industry in West Bengal having three factories in varibus parts of Calcutta."}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 494, "end_char": 519, "source": "ner", "metadata": {"in_sentence": "The Government of West Bengal declared the appellant to be a public utility service in exercise of power conferred by s. 2(c) (vi-) of the Industrial Disputes Act, 1947, and also an 'essential service' under the Defence of India Rules..\n\nAt the instance of the appellant company the Government of West Bengal re\n\n1ferred to the Industrial Tribunal the question \\Vhether the nine unpaid festival holidays allowed by the COIDw pany to its workmen in addition to paid festival and other holidays should be continued."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 608, "end_char": 615, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 629, "end_char": 658, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Railways", "label": "ORG", "start_char": 1460, "end_char": 1475, "source": "ner", "metadata": {"in_sentence": "Allowing the company's appeal,\n\nHELD : The Tribunal was whoijy oblivious of .the present day conditions and the necessity for increased producti.on, particularly, in the n1attcr of utility companies and the companij!s that are producing goods E. for essential services like those carried on by the Indian Railways."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2472, "end_char": 2487, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the appellant."}}, {"text": "GROVER", "label": "JUDGE", "start_char": 2644, "end_char": 2650, "source": "ner", "metadata": {"in_sentence": "LTD, V; WORKMBN ( GrO\\'tr, J.) 8 31\n\nThe Judgment of the Court was delivered by ,\n\nGROVER, J.\n\nThis is a .. appeal by special leave from the award of the Seventh Industrial Tribunal, West Bengal.", "canonical_name": "GROVER"}}, {"text": "Seventh Industrial Tribunal, West Bengal", "label": "COURT", "start_char": 2715, "end_char": 2755, "source": "ner", "metadata": {"in_sentence": "LTD, V; WORKMBN ( GrO\\'tr, J.) 8 31\n\nThe Judgment of the Court was delivered by ,\n\nGROVER, J.\n\nThis is a .. appeal by special leave from the award of the Seventh Industrial Tribunal, West Bengal."}}, {"text": "government of West Bengal", "label": "ORG", "start_char": 3262, "end_char": 3287, "source": "ner", "metadata": {"in_sentence": "In order to ensure smooth production and uninterrupted flow of supply, the government of West Bengal declared the appellant to be a public utility service in exercise of the power conferred by sub-clause (vi) of clause (c) of s. 2 of the Industrial Disputes Act, 194 7, and also as 'essential service' under the De.fence of India Rules."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 3413, "end_char": 3417, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 3425, "end_char": 3448, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 3903, "end_char": 3916, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 3974, "end_char": 3987, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "government of F West Bengal", "label": "ORG", "start_char": 4400, "end_char": 4427, "source": "ner", "metadata": {"in_sentence": "At the instance of the appellant-company, the government of F West Bengal referred the following issue by an order dated June 7, 1966 to the industrial tribunal for adjudication."}}, {"text": "June 7, 1966", "label": "DATE", "start_char": 4475, "end_char": 4487, "source": "ner", "metadata": {"in_sentence": "At the instance of the appellant-company, the government of F West Bengal referred the following issue by an order dated June 7, 1966 to the industrial tribunal for adjudication."}}, {"text": "Gobind Day", "label": "WITNESS", "start_char": 6206, "end_char": 6216, "source": "ner", "metadata": {"in_sentence": "Each side examined one witness, P.W. I, Gobind Day, who appeared on behalf of the appellant, supported the assertions made in the written statement filed on behalf of the appellant."}}, {"text": "Bengal", "label": "GPE", "start_char": 6631, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "He admitted in his cross-examina tion that in Bengal holidays for certain days like Netaji's birthday or for religious festivals, were considered very essential."}}, {"text": "Netaji", "label": "OTHER_PERSON", "start_char": 6669, "end_char": 6675, "source": "ner", "metadata": {"in_sentence": "He admitted in his cross-examina tion that in Bengal holidays for certain days like Netaji's birthday or for religious festivals, were considered very essential."}}, {"text": "India", "label": "GPE", "start_char": 8394, "end_char": 8399, "source": "ner", "metadata": {"in_sentence": "This is how the Tribunal reasoned in the matter:\n\n\" .... in my humble opinion without reducing the number of important festival holidays of any community in India-which is the home of different communities and religions the number of working holidays can be increased as a compensatory measure by converting a good many Sundays to working days."}}, {"text": "Indin Railways", "label": "ORG", "start_char": 9612, "end_char": 9626, "source": "ner", "metadata": {"in_sentence": "It appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production, particularly, in the matter of utility companies and the companies \\hat are producing goods for essential services like those carried on by the Indin Railways."}}, {"text": "Pfizer", "label": "OTHER_PERSON", "start_char": 10216, "end_char": 10222, "source": "ner", "metadata": {"in_sentence": "2 ) In Pfizer's case, the holidays which were being granted were reduced lo ten .from the inumber\n\nwhich the workers were enjoying previously in accordance with those sanctioned under the Negotiable Instruments Act i.e., 16 holidays."}}, {"text": "Negotiable Instruments Act", "label": "STATUTE", "start_char": 10397, "end_char": 10423, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1st January, 1973", "label": "DATE", "start_char": 11181, "end_char": 11198, "source": "ner", "metadata": {"in_sentence": "In other words, the system of unpaid holidays will not continue with effect from the 1st January, 1973."}}]}
{"document_id": "1973_3_835_843_EN", "year": 1973, "text": "UNION OF INDIA v.\n\nM/S. MODI INDUSTRIES LTD.\n\nMarch 30, 1973\n\n(A, N. G!lOVBll AND K. K, MATHEW, JJ,)\n\n/mlian Rai/wC<ys Act, 1890 Ss. 26 and 41-Compku'nt In rtsptct of past dues cannot be made under s. 41 before Railway Rates Trlbuna!-In •uch cases s. 26 of Act is not a bar to a suit In civil court and question of reasonableness of charges can be gone Into by civil court.\n\nBy agreement dated July 4, 1933 the respondent company was liable. to pay charges for a railway siding at agreed rates. Clause 23 of the agreement laid down that it shall be open to the Railway Administration on giving six months notice of sum. ihtent, to revise the said charges.\n\nClause 24 related to t\\?rmination of the agreement in the event of nonpaxment of dues within one month Cl[ demand. On March 26, 1949 the railway authorities informed the respondent that the rates were proposed to be increased with effect from April l, 1949. The respondent objected to the increase as being against clause 23 of the agreement.\n\nBy a subsequent letter in September 1951 the Divisional Superintendent of the Railway asked the respondent to pay the charges at much higher rates. There was prolonged correspondence between the parties without the respondent. agreeing to pay the higher rates demanded. On September 29, 1955 the- Divisional Engineer addressed a letter to the respondent proposing revision of the siding charges with effect from April l, 1956 after the expiry of six months according to clause 23 of the agreement.\n\nThese proposed charges were much lower than the charges demanded by the earlier letters.\n\nOn May 17, 1957 the General Manager of the Railway sent a letter to the plaintiff for payment of Rs. 93,981-8-0 in respect of the period December I\n\n19'49 to March 31, 1956. It was intimated that on failure to make the said payment within one month the supply of wagons would be stooped and steps to determine the agreement would be taken. In May 1957 the respondent served a notice under s. 80 Of the Code of Civil Procedure and thereafter filed a suit.\n\nThe trial .court partly decreed the suit. The High Court. decreed it in toto.\n\nIn the appeal by certificate to this Court, filed on behalf of the lJnion of India, the questions that fell for. consideration were : (i) whether the civil court had jurisdiction in view of Ss. 26 and 41 of the Indian Railways Act, 1890, to detennine the reasonableness of the charges: (ii) whether the courts below if they had jurisdiction were justified in holding the charges to be unreasonable.\n\nDismissing the appeal,\n\nHELD : (i) From the facts it appeared that the rates are being rev is-· ed and actually enhanced, but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time.\n\nNo effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally areed. It was only in May 1957 that the respondent wa. really threatened to mak<: payment of the outstanding amount calculated at the revised rates on pain of the supply elf wagons being stopped and the agreement being determined.\n\nAccording to the decisions of this Court it was hardly open to the respondent to file a complaint under s. 41 of the Act with regard to the\n\nnasonableness or otherwise of the rates and charges which had already llecome due and payable. The plaintiff had no grievance whatsoe\\er with\n\nregard to the charges which had been fixed with effect from April 1, 1956.\n\nBy means of the letter dated September 29, 1955, and therefore there was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded On the basis of the revised enhanced rates between the period December t, 1949 and March 1, 1956. If that amount had actually been realised by the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under s. 4 J of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a com- plaint with regard to the past dues as the Railway Tribunal could not have given any relief in respect thereof 'following the law laid down by this Court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also of the notice or intimation of rates on the ground on non-compliance \\vith its terms the suit cou1d not be held barred under s. 26 of the Act and the civil court could grant the relief claimed.\n\n[842H-843PJ Union of India v. The Indian Sugar Mills Association, Calcutta . . f1967] 3 S.C.R. 219, Raichand Amulakh Shah v. Union of India, [1964] 5 S.C.R-\n\n148 and Upper Doab Sugar Mills Ltd. v. Slwhdara (Delhi) Salwranpur .Light Railway Company Ltd., [1963] 2 S.C.R. 333 at p. 342, referred to.\n\n(ii) There was no serious infirn1ity in the reasoning of the High Court by which it arrived at the conclusion that the question of reasonbleness of the charges, keeping in mind the 'facts of this case, was justiciable.\n\nNor had any justification been shown 'for rconening the concurrent finding of the two Courts below that the rates which were demanded for the period in question were unreasonable.\n\nThe suit \\\\'as thus rightly de.:reed. f843EJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1616 of 1967.\n\nAppeal by cevtificate from the judgment and order da•ted September 30, 1966 of the Allahabad High Court in First Apoeal No. 198 of 1960.\n\nGobind Das and B. D. Sharma, for the appellant.\n\nC. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent.\n\nThe Judgment of the Court was delivered by GROVER, J .-This is an appeal by certificate from a judgment of the Allahabad High Court in a suit filed by the plaintiff-respondent for an injunction against the defendant-appellant restraining it from realizing the sum ol Rs. 93,981-8-0 on account of the alleged siding charges for the period December 1, 1949 10 March\n\n31, 1956 and from stopping 'the supply of wagons in the railway siding of the plaintiff and further from cancelling the agreement dated July 4, 1933 for the aforementioned reason.\n\nThe facts necessary for deciding the appeal may be stated. By means ol an agreement dated. July 4, 1933 the plaintiff entered into an agreement with the Secretary of State for India-in-Council through the agent of the North Western Railway (now represented\n\nby the Union of India) whereby it was agreed that the former shall Jay a railway siding from Begamabad Station Yard of that railway for enabling the plaintiff to carry on its business at its. premises.\n\nClause 13 of the agreement was as follows:-\n\n\"Freight for all classes al goods will be charged upto and from Begumabad Station. Railway Receipts and invoices shall be issued to and from the station only and in accordance with the rates from time to time published in the Goods Traffic Books of this Railway Administration will make the following charges in each direction from every wagon loaded or empty in or removed from the lines A and a mentioned in clause 15 below :--\n\n(J) Per 4 wheeled wagon\n\n(2) Per 6 wheeled wagon\n\n(3) Per 8 wheeled wagon\n\nRe. One.\n\nRe. One and annas eiaht Re. two.\"\n\nD Clause 23 of the agreement provided :-\n\n\"Notwithstanding anything laid down in the foregoing clauses of this Agreement, it shall be open to the Railway Administration on giving six months notice ot\n\nsuch intent, to revise the charges laid down in clauses 8, 12, 13 and 19 of this Agreement\".\n\nClause 24 related to termination of the agreement in the event of non payment of duc:S within one month of demand.\n\nOn March 26, 1949 the Divisional Superintendent of the E.P. Railway (successor in interest of the North Western Railway) informed the plaintiff that the rates were proposed to be increased with effect from April 1, 1949, the increased charges being mentioned in that letter. As this intimation was not in accordance with clause 23 of the agreement the plaintiff refused to agree to the increase. Other objections were also raised, one al the objections being that the charges were excessive. The Divisional Superintendent addressed another letter on May 18, 1949 informing the plaintiff that with effect from December 1, 1949 the charges mentioned therein would be made. A good deal of correspondence and discussions between the representatives of the plaintiff and the railway authorities took place and by a letter dated July 20, 1951 the Divisional Superintendent intimated that the revised siding charges in force from December 1, 1949 were purely provisional and were subliect to revision. Meanwhile and subsequent to the above date the required tests were made to <!!:'!ermine the charges. In Septelllber 1951 the Divisional Superintendent wrote to the plaintiff that the siding charges should be paid with effect ·\n\nfrom December 1, 1949 to September 30, 1951 at the following rates :-\n\n(I) Per 4 wheeled waaon (II) Per 6 wheeled waaon (Ill) Per 8 wheeled wagon\n\nRs.\n\nS/· Rs. 7/8/- Rs. 10/·\n\nThe plaintiff protested against what was called the exorbitant nature of the charges and made it clear that the letter of September 1951 did not comply with clause 23 of the llireement and that the charges were unreasonable and could not be legitimately made.\n\nAnother letter dated October 26/November 6, 1951 was sent by the Divisional Supetintenden1 saying that the siding charges to b\\e .levied with effect from first October 1951 were being assessed and would be intimated to the plaintiff and meanwhile it should continue to pay the charges demanded in the letter of September\n\n1951 provisionally.\n\nThe Divisional Superintendent addressed another letter dated November 27, 1951 explaining the result of the test and the actual cost of the shunting etc. A demand was made that the revised siding charges should be paid from December 1949 to September 30, 1951 at Rs. 4/- per 4 wheeler, Rs. 6/- per 6 wheeler and Rs. 8/- per 8 wheeler. The plaintiff, however, did not pay the increased rates demanded. On September 29, 1955 the Divisional Superintendent addressed a letter to the plaintiff\n\nproposing revision of the siding charges with effect from April 1, 1956 after the expiry of six months according to clause 23 of the agreement.\n\nThe charges as demanded were as follows :-\n\n4 wheeled wagon 6 wheeled wagon 8 wheeled wagon\n\n- Rs. 1 20/·\n\nRs. 2 10/-\n\nRs J. 50/·\n\nOn May 17, 1957 the General Manager of the Railway sent a letter to the plaintiff for payment of the amount of Rs. 93,981-8-0 representing the difference between the amounts due from December 1, 1949 to March 31, 1956. It was intimated that on failure to make the said payment within one month ihe supply of wagons would be stopped ancl steps to determine the agreement would be taken.\n\nIn May 1957. the plaintifi served a notice under s. so of the Civil Procedure Code to be defendant and thereafter in October 1958 the suit out of which the appeal has 'arisen was filed.\n\nOut of the issues framed by the trial court on the pleadings of the parties the following need be mentioned :\n\n( 1 ) \"Whether the enhancement of the siding charges\n\nby the defendant is unjustified, exorbitant and illegal ? -\n\n(2) Whether the demand of Rs. 93,981-8·0 by the defendant is illegal ?\n\n(3) Whethe; the court has no .jurisdiction to try the suit ?\" On issue No. 1 'the trial court held that the charges demanded were uniustified and exorbitant.\n\nIt was held that out of the demand of Rs. 93,981-8-0 the demand for Rs. 22,111-3-0 was illegal. On issue No. 4 the trial court expressed the view that it had jurisdiction to try the suit in respect of that portion o[ the claim whereby the legality of the enhanced siding charges had been challenged on account of being in violation of clause 23 of the agreement but it had no jurisdiction to try the suit in respect of the second ground whereby the enhanced siding charges had been challenged as unjustified and exorbitant.\n\nThe plaintiff appealed to the High Court and the defendant filed cross otections. The High Court affirmed the finding of the courts below thirt the enhancement made by the Railway Administration was highly unjustified and exorbitant. But it did not accept i1s finding about the legali'ty of the enhancement and also on the question of the jurisdiction of the civil court. The appeal\n\nwas consequently allowed in toto and the cross objections were dismissed.\n\nThe principal question which has been -ai:itated before us relates to the jurisdiction of the civil court to determine the reasonableness of the charges. A subsidiary question has ben raised that assuming the civil court had the jurisdiction, whether the courts below were justified in holding that to be unreasonable.\n\nFor the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890, hereinafter called the 'Act'.\n\nSection 3 contains the definitions. Clauses 11 and 13 defining the words \"traffic\" and \"rates\" are as follows :-\n\n\" ( 11) \"trafic\" includes rolling stock of every description as well as passengers; animals and goods; ( 13) \"rate\" includes any fare, charge or other payment for the carriage of any passenger, animal or goods\"; Chapter V headed \"traffic facilities\" commences with s. 26. Ac\n\ncording to that section except as provided in the Act no suit shall be instit\\lted or proceedings taken for anything d<?ne or any omission made by the Railway Administration in violll; llon or con travention of any provision of that Chapter.\n\nSection 27 ( 1) places a duty on every Railway Administration to afford a!I rea sonable facilities for the receiving, forwarding and delivermg of traffic upon and from the several railways belonging to or worked\n\nby it and for the return of the rolling stock.\n\nSection 29 is ay follows :-\n\nS.29 ( 1) \"The Central Government may by general or special order fix maximum and minimum rates for the whole or any part of a railway and prescribe the conditions in which such rates will apply.\n\n(2) The Central Government may, by a like order, fix the rates of any other charges for 'the whole or any part of a railway and prescribe the conditions in which such rates of charges shall apply.\n\n(3) Any complaint that a railway administration is C contravening any order issued by the Central Government under sub-section ( 1) shall be determined by the Central Government\".\n\nSection 34 relates to the constitution of the Railway Rates Tribunal for the purpose of discharging functions specified in Chapter V.\n\nSections 39 ai:d 40 give the jurisdiction and powers of the Tribunal.\n\nI> Sectfon 41 to the extent it is material may be reproduced :-\n\nS.41 (l) \"Any complaint that a railway administration-\n\n( a) is contravening the provisions of s. 28 or ( b) is charging for tile carriage or any commodity between two stations a rate which is unreason- E able c~ ( c) is levying any other charge which is unreasoncble,\n\nmay be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter\".\n\n'2) ......................... . ( 3) In the case of a complaint under clause (b) or\n\nclause ( c) of sulj-section (1), the Tribunal may fix such rate or charge as it considers reasonable : Provided that ............................. .\n\n(4) ...........................•.. ,, On behalf of the appellant the bar created by the s. 26 to the jurisdiction of ordinary courts has been .invoked.\n\nIt has been argued that s. 29 (2) postulates the fixation of rates of charges other than those contemplated by sub-s. (l). II there is any grievance that the railway administration is levying a charge which is unreasonable it will be covered bys. 4l(l)(c) and therefore, only a complaint can be made to the railway-administration in tha't matter. The jurisdiction of the civil court will be barred because exclusive jurisdiction has been conferred on 'the Railway !-lates Tribunal for determining whether the charge being levied is unreasonable.\n\n. According to the High Court Chapter V has nothing to do with charges which are payable under a contract.\n\nThe validity and interpretation:of clause 23 of the agreement between the parties was a matter for the interpretation of the civil cour't and could not possibly be brarred by s. 26 of the Act. Section 41 (1) ( c) has no application to an enhancement already made in the purported exercise of the right under a contract.\n\nNow section 26 only bars the institution of a suit or proceedings for anything done or any omission made in violation or contravention of any provision of Chapter V. Section 29(2) empowers the Central Government to fix the rates cf any other charges by a general or special order. In view of 1he language of s. 41 (1 )(c) if it is assumed that the rates cannot be unreasonable and if the Central Government fixes unreasonable rates it may be possible to say that there Iias been a tontravention hr violation of s. 29(2). But such fixation of rates under that provision has to be a general or special order. It has been suggested that a communication made under a contract cannot fall within the meaning of the word \"order\" as contemplated by s. 29.\n\nPrima facie, there may be some difficulty in acceding to the contention of the learned counsel for the appellant that any part c.f s. 29 will cover a revision of rates made by the railway authority in terms of a contract but the matter seems to s1and concluded by the decision of this Court in Union of India v. The Indian Sugar Mills Association, Calcutta(') according to which it is immaterial that the charges being levied by the railway administration arise as a result of a voluntary agreement. The real difficulties in th~ way of the appellant are two fold; firstly, if any question arises about the validity of a clause oi. a contract that will be entertainable by a civil court. As laid down in Raichiznd Amulakh Shah\n\nv. Union of India( 2 ) the Railways Tribunal has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule.\n\nIn Upper Doab Sugar Mills Ltd. v. Shahadara (Delhi) Saharanpur Light Railway Company Ltd.(') two main points arose; one was whether the Railway Tribunal had jurisdiction to entertain the complaint as regards the reasonableness of the rates prior to the institution of the complaint\n\n) [t957] 3 S. C.R. 219. (2\\ [t9641 5 S, c: R. 148. (3\\ [t963] 2 S. C. R. 333 at p. 342. 6-L797SuPCl/73\n\nand the other was whether it had jurisdiction to 2rant refund for the aforesaid period. This is what was said by Das Gupta J. :\n\n\"The words \"charging\" in cl. (b) and \"levying\" in\n\ncl. ( c) were used in the one and the same sense. We find it impos3ible to agree however that they were used to include \"collecting\".\n\nIt appears to be clear that if the intention of the legislature was to give the Tribunal j urisdiC\"tion over complaints in connection with charges already made the legislature would have used the words\n\n\"has charged and is charging\" and would not merely say \"is charging\". Special jurisdiction of such a nature would be given clearly and the very fact that the words \"has charged\" have not been .used is sufficient ground for thinking that it was not the legislature's intention to give the Tribunal jurisdiction over complaints in connec!ion with charges made in the past. In our opinion, the words \"is charging\" in cl. (b) and \"is levying\" in\n\ncl. ( c) must be construed to mean \"is_ demanding a price at the present time for services to be rendered\".\n\nComing to the facts of the present case it is apparent that one of the main questions involved was whether clause 23 of the contract between the parties was not void because it contravened s. 29 of the Indian Contract Aot. Another question which had to be investigated was whether a proper notice regarding the enhancement of rates had been given in accordance with the terms of the said agreement.\n\nFrom the facts which have been stated it appears that the rates were being revised and actually enhanced, but then the matter was kept pending and there was exchange of correspondence and discussion betweenthe. parties from time to time.\n\nNo effort was made to enforce the demand made in the various letters and the plaintiff was allowed to make payments according to the rates originally agreed. It was only in May 1957 that the plaintiff was really threatened to make payment of the outstanding amount calculated at the revised rates on pain of the\n\nsupply of wagons being stopped and the agreement being determined. H is somewhat surprisin.e; that in September 1955 the rates which were revised were very much less. than those which were demanded for the prior period. The position thus remained in a ftexib)e state and there is a good deal of substance in the submission on behalf of the plaintiff-respondent that a complaint was not filed under s. 41 of the Act because the rates which were being-paid and actually accepted were the S311\\e as the contractual rates and not the revised or enh~ rates.\n\nAccording to the decisions of this Court referred to before it was hardly open to the plaintiff to file a complaint with regard to the reasonabJeness or otherwise of the rates and charges which had already become due\n\nand payable.\n\nThe plaintiff had no grievance whatsoever with regard to the charges which had been fixed with effect from April l, 1956 by means of the letter dated September 29, 1955 aqd therefore there was no question of its filing a complaint with regard to those charges.\n\nIts grievance was confined only to the amount which was being demanded on !he basis of the revised enhanced rales between the period Derember _1, 1949 and March I, 1956. If that amount had actually been realised by the railway authorities the plaintiff could orily file a suit for its refund and could not have laid a compaint under s. 41 of the Apt be.fore the Railway Tribunal. By analogy the plaintiff could not have filed a complaint with regard to past dues as the Railway Tribunal could not have given any relief in respect thereof following the law laid down by this Court. In this view of the matter appart from other questions involving the validity of clause 23 of the agreement as also cl the notice or inlimation of enhancemeilt of rates on the ground of non-compliance . with its terms the suit could not be held barred under s. 26 of the Act and the civil court could grant the relief claimed.\n\nWe have not been shown any serious infirmity in the reason- :ing of the High Court by which it arrived at the conclusion that\n\nthe qustion of reasonableness of. the charges, keeping in mind the facts of this case, was justiciable. Nor has any justification been shown for reopening the concurrent finding o.f the two. courts below that the rates which were demanded for t]le period in question were unreasonable. The suit was thus rightly decreed.\n\nThe appeal fails .and it is dismissed; but we make no order as to costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 85, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "S. MODI INDUSTRIES LTD.", "label": "RESPONDENT", "start_char": 21, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "M/S. MODI INDUSTRIES LTD", "offset_not_found": false}}, {"text": "March 30, 1973", "label": "DATE", "start_char": 46, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "March 30, 1973\n\n(A, N. G!lOVBll AND K. K, MATHEW, JJ,)\n\n/mlian Rai/wC<ys Act, 1890 Ss."}}, {"text": "MATHEW, JJ", "label": "JUDGE", "start_char": 88, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "Ss. 26 and 41", "label": "PROVISION", "start_char": 129, "end_char": 142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 198, "end_char": 203, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 248, "end_char": 253, "source": "regex", "metadata": {"statute": null}}, {"text": "July 4, 1933", "label": "DATE", "start_char": 394, "end_char": 406, "source": "ner", "metadata": {"in_sentence": "By agreement dated July 4, 1933 the respondent company was liable."}}, {"text": "Clause 23", "label": "PROVISION", "start_char": 495, "end_char": 504, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 24", "label": "PROVISION", "start_char": 657, "end_char": 666, "source": "regex", "metadata": {"statute": null}}, {"text": "March 26, 1949", "label": "DATE", "start_char": 775, "end_char": 789, "source": "ner", "metadata": {"in_sentence": "On March 26, 1949 the railway authorities informed the respondent that the rates were proposed to be increased with effect from April l, 1949."}}, {"text": "April l, 1949", "label": "DATE", "start_char": 900, "end_char": 913, "source": "ner", "metadata": {"in_sentence": "On March 26, 1949 the railway authorities informed the respondent that the rates were proposed to be increased with effect from April l, 1949."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 972, "end_char": 981, "source": "regex", "metadata": {"statute": null}}, {"text": "September 29, 1955", "label": "DATE", "start_char": 1274, "end_char": 1292, "source": "ner", "metadata": {"in_sentence": "On September 29, 1955 the- Divisional Engineer addressed a letter to the respondent proposing revision of the siding charges with effect from April l, 1956 after the expiry of six months according to clause 23 of the agreement."}}, {"text": "April l, 1956", "label": "DATE", "start_char": 1413, "end_char": 1426, "source": "ner", "metadata": {"in_sentence": "On September 29, 1955 the- Divisional Engineer addressed a letter to the respondent proposing revision of the siding charges with effect from April l, 1956 after the expiry of six months according to clause 23 of the agreement."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 1471, "end_char": 1480, "source": "regex", "metadata": {"statute": null}}, {"text": "May 17, 1957", "label": "DATE", "start_char": 1593, "end_char": 1605, "source": "ner", "metadata": {"in_sentence": "On May 17, 1957 the General Manager of the Railway sent a letter to the plaintiff for payment of Rs."}}, {"text": "March 31, 1956", "label": "DATE", "start_char": 1748, "end_char": 1762, "source": "ner", "metadata": {"in_sentence": "93,981-8-0 in respect of the period December I\n\n19'49 to March 31, 1956."}}, {"text": "s. 80", "label": "PROVISION", "start_char": 1979, "end_char": 1984, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 1988, "end_char": 2015, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 2202, "end_char": 2207, "source": "ner", "metadata": {"in_sentence": "In the appeal by certificate to this Court, filed on behalf of the lJnion of India, the questions that fell for."}}, {"text": "Ss. 26 and 41", "label": "PROVISION", "start_char": 2315, "end_char": 2328, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railways Act, 1890", "label": "STATUTE", "start_char": 2336, "end_char": 2361, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 41", "label": "PROVISION", "start_char": 3266, "end_char": 3271, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "April 1, 1956", "label": "DATE", "start_char": 3506, "end_char": 3519, "source": "ner", "metadata": {"in_sentence": "The plaintiff had no grievance whatsoe\\er with\n\nregard to the charges which had been fixed with effect from April 1, 1956."}}, {"text": "March 1, 1956", "label": "DATE", "start_char": 3817, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "Its grievance was confined only to the amount which was being demanded On the basis of the revised enhanced rates between the period December t, 1949 and March 1, 1956."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3995, "end_char": 3999, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 23", "label": "PROVISION", "start_char": 4330, "end_char": 4339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 4490, "end_char": 4495, "source": "regex", "metadata": {"statute": null}}, {"text": "1967] 3 S.C.R. 219", "label": "CASE_CITATION", "start_char": 4640, "end_char": 4658, "source": "regex", "metadata": {}}, {"text": "[1963] 2 S.C.R. 333", "label": "CASE_CITATION", "start_char": 4814, "end_char": 4833, "source": "regex", "metadata": {}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 5506, "end_char": 5516, "source": "ner", "metadata": {"in_sentence": "Gobind Das and B. D. Sharma, for the appellant."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 5521, "end_char": 5533, "source": "ner", "metadata": {"in_sentence": "Gobind Das and B. D. Sharma, for the appellant."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 5555, "end_char": 5569, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent."}}, {"text": "Uma Mehta", "label": "LAWYER", "start_char": 5571, "end_char": 5580, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 5582, "end_char": 5593, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent."}}, {"text": "Swreshta Bagga", "label": "LAWYER", "start_char": 5595, "end_char": 5609, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent."}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 5614, "end_char": 5624, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and Rani Arora, for the respondent."}}, {"text": "GROVER", "label": "JUDGE", "start_char": 5690, "end_char": 5696, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GROVER, J .-This is an appeal by certificate from a judgment of the Allahabad High Court in a suit filed by the plaintiff-respondent for an injunction against the defendant-appellant restraining it from realizing the sum ol Rs."}}, {"text": "Union of India", "label": "ORG", "start_char": 6458, "end_char": 6472, "source": "ner", "metadata": {"in_sentence": "July 4, 1933 the plaintiff entered into an agreement with the Secretary of State for India-in-Council through the agent of the North Western Railway (now represented\n\nby the Union of India) whereby it was agreed that the former shall Jay a railway siding from Begamabad Station Yard of that railway for enabling the plaintiff to carry on its business at its."}}, {"text": "Clause 13", "label": "PROVISION", "start_char": 6654, "end_char": 6663, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 7109, "end_char": 7118, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 23", "label": "PROVISION", "start_char": 7252, "end_char": 7261, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 24", "label": "PROVISION", "start_char": 7545, "end_char": 7554, "source": "regex", "metadata": {"statute": null}}, {"text": "North Western Railway", "label": "ORG", "start_char": 7759, "end_char": 7780, "source": "ner", "metadata": {"in_sentence": "On March 26, 1949 the Divisional Superintendent of the E.P. Railway (successor in interest of the North Western Railway) informed the plaintiff that the rates were proposed to be increased with effect from April 1, 1949, the increased charges being mentioned in that letter."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 7982, "end_char": 7991, "source": "regex", "metadata": {"statute": null}}, {"text": "May 18, 1949", "label": "DATE", "start_char": 8211, "end_char": 8223, "source": "ner", "metadata": {"in_sentence": "The Divisional Superintendent addressed another letter on May 18, 1949 informing the plaintiff that with effect from December 1, 1949 the charges mentioned therein would be made."}}, {"text": "December 1, 1949", "label": "DATE", "start_char": 8270, "end_char": 8286, "source": "ner", "metadata": {"in_sentence": "The Divisional Superintendent addressed another letter on May 18, 1949 informing the plaintiff that with effect from December 1, 1949 the charges mentioned therein would be made."}}, {"text": "July 20, 1951", "label": "DATE", "start_char": 8484, "end_char": 8497, "source": "ner", "metadata": {"in_sentence": "A good deal of correspondence and discussions between the representatives of the plaintiff and the railway authorities took place and by a letter dated July 20, 1951 the Divisional Superintendent intimated that the revised siding charges in force from December 1, 1949 were purely provisional and were subliect to revision."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 9217, "end_char": 9226, "source": "regex", "metadata": {"statute": null}}, {"text": "October 26/November 6, 1951", "label": "DATE", "start_char": 9342, "end_char": 9369, "source": "ner", "metadata": {"in_sentence": "Another letter dated October 26/November 6, 1951 was sent by the Divisional Supetintenden1 saying that the siding charges to b\\e .levied with effect from first October 1951 were being assessed and would be intimated to the plaintiff and meanwhile it should continue to pay the charges demanded in the letter of September\n\n1951 provisionally."}}, {"text": "November 27, 1951", "label": "DATE", "start_char": 9725, "end_char": 9742, "source": "ner", "metadata": {"in_sentence": "The Divisional Superintendent addressed another letter dated November 27, 1951 explaining the result of the test and the actual cost of the shunting etc."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 10270, "end_char": 10279, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 23", "label": "PROVISION", "start_char": 11796, "end_char": 11805, "source": "regex", "metadata": {"statute": null}}, {"text": "Act, 1890", "label": "STATUTE", "start_char": 12899, "end_char": 12908, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12941, "end_char": 12950, "source": "regex", "metadata": {"linked_statute_text": "For the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890", "statute": "For the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 13320, "end_char": 13325, "source": "regex", "metadata": {"linked_statute_text": "For the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890", "statute": "For the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890"}}, {"text": "Section 27", "label": "PROVISION", "start_char": 13574, "end_char": 13584, "source": "regex", "metadata": {"linked_statute_text": "For the purpose of determining the question of jurisdiction we shall have to examine ilie relevant provisions of the Indian Railways\n\nAct, 1890", "statute": "For the purpose of determining the question of jurisdiction we 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{"document_id": "1973_3_844_849_EN", "year": 1973, "text": ".844\n\nNETI SREERAMULU v.\n\nSTATE OF ANDHRA PRADESH\n\nApril 2, 1973\n\n[K. K, MATHEW AND J. D. DUA, JJ.J\n\nIndian Pane! Code, s. 302-Accused convicted for murder-Whether ientence .to be reduced from death to life imprisonment.\n\nAppellant, aged 20, was convicted and sentenced to death for murdering hJS wife on October 30, 1971 and the High Court confirmed the death sentence on January 24, 1972. The appeal tu this Court was limited only to the question of sentence.\n\nJn the High Court it was argued that the sentence should be reduced to Iife imprisonment because, the appellant was a young man of 20 years of age, the iilcident arose out of sexual jealousy and the crime was not pre-meditated'.\n\nThe High Court did not consider these circumstances to be sufficient to merit a lesser sentence.\n\nJn this Court it was contended that appellant acted under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of s. 357 Cr.P.C.\n\nAllowing the appeal,\n\nHELD : (I) While confirming the capital sentence, the High Court has an obligation to itself to consider why sentence should be imposed and should not be content with the trial cburt's decision on the point.\n\nIt is the duty di the High .Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge.\n\nIn so doing, the High Court will be assisted by the opinian expressed by the Sessions Judge but the Jaw requires that the High Court should come to an independent conclusion of its own.\n\n[847EJ\n\nJumman & others v. The State of Punjab, A.I.R. 1957 S.C. 469, referred tn.,\n\n(ii) In the present case, assuming the trial court was justified in imposing the capital sentence, the Jong lapse of time since the imposition of the capital sentence by the trial Court and the consideration of the question by tihs Court, constitutes a relevant ground for reducing the sentence to 1ife imprisonment. The appellant must have been in the condemned cell ever since the death penalty was imposed on him.\n\nThe appellant must have been subjected to acute mental agony ever since the death penalty was imposed on him. Therefore, the sentence of capital punishment must be reduced to life imprisonment in the present case.\n\n[848C] .\n\nIn Piare Dusadh & Others v. Emperor A.LR. 1944 F.C. 1, the sentence of death was reduced to one of transportation for li'fe when the convict had inter alia, been awaiting execution of death sentene for over a year.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. so of 1973.\n\nAppeal by special leave from the judgment and order dated January 24, 1972 of. the Andhra Pradesh High Court in Cr. A.\n\nNo. 796 of 1971 and Referred Trial No. 9 of 1971.\n\n0. P. Rana, for the appellant.\n\nThe Judgment of the Court was delivered by\n\nDuA, J.-In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under s. 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence. The preparation of the record was dispensed with and the appeal was directed to be heard on the S.L.P. paper book. In the order granting special leave dated March 1, 1973 it was specifically directed as under :\n\n\"Let an actual date of hearing of the appi; al be fixed which will not be longer than one month from today, and notice of the actual date of hearing oi the appeal shall be sen1 to the respondent forthwith.\" Earlier, on July 5, 1972 the special leave petition .has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only. It is unfortunate that the matter could not be placed before the Bench after service of show cause notice for nearly eight months. The appellant had been sentenced to death as far ck as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court on January 24, 1972.\n\nThe prosecution story as upheld by the High Court stated briefly is that the deceased, who was a married woman, was having an illicit intimacy with the appellant and they were both living ; at Tadimalla.\n\nBefore they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram,\n\nThere, she had developed illicit intimacy with her husband's brother and is stated to have eloped with him.\n\nSometime later, G .she patched up with her husband and they both then went down\n\ntto Tadimalla to live. there, which was the native village of the\n\ndeceased.\n\nBut there also the deceased developed illicit intimacy with the appellant who belonged to Harijan community.\n\nApparently the deceased belonged to a higher caste. It appears that\n\nthe appellant and the deceased started living together in a portion of the appellant's house in Harijanwada of Tadimalla village.\n\nAccording to the testimony of Osha Tharmaiah (P.W. 14) even when the deceased was living with the appellant she was having a liaison with this witness.\n\nThe deceased met with her death on\n\nApril 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant's house and started Jiving in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14). According to P.W. 14 the deceased did so in order to continue her illicit intimacy with that witness.\n\nThe appellant apparently felt distressed on account of this conduct on the part of the deceased.\n\nOn 1he morning c.f April 14, 1971, the deceased went to the Panchayat well to take water to her house and while she was standing there on the platform of the well, the appellant went there, caught hold of her pig-tail from behind with his left hand and delivered two blows on the left side of her neck and gave two or three .blows on her left upper fore-arm. The deceased tried to free herself from the appellant's grip but fell down flat about six yards away from the well. The appellant is said to have delivered another blow with the knife on the left side of her abdomen which resulted in her intestines protruding out. The deceased it a11pears died soon after the receipt of these injuries.\n\nIn the High Court on behalf of the .appellant it was argued that the sentence should be reduced to life imprisonment because : ( 1) the appellant is a very young man of about 20 years of age; ( 2) the incident arose out of sexual jealously and ( 3) 6e crime was not pre-meditated.\n\nThe High Court did not consider these circumstances to be sufficient to merit a lesser sentence, because from the evidence of the doctor and the postmortem certificate given b~ him it was evident that the a11pellant had inflicted as many as ten incised injuries out of which two injuries were fatal and even after inflicting the injuries on the deceased indiscriminately the appellant stabbed her in the abdomen with such violence that the intestines actually came out and this happened after the deceased had fallen down. From the injuries caused by the appellant to the deceased the High Court felt that the accused must have intended to murder her and his intention in attacking the deceased was only to chastise her or to teach her a lesson. Finding no reason to reduce the sentence passed by the trial court the High Court confirmed the capital sentence.\n\nIn this Court it was contended on behalf of the appellant that there was grave provocation for the appellant in that the appellant had sacrified everything for the sake of keeping the deceased with him but she had proved unfaithful and had not only started living with someone else but had even ridiculed him. It was also con tended that the courts below had completely ignored the effect of the recent amendment of s.357, Cr. P.C. and that they have proceeded as if there must be some mitigating circumstance in order to justify the imposition of a lesser penalty in case of con viction under s. 302, 1.P .C.\n\n'f!le learned additional Sessions Judge, when dealing with the quest1<; n of. sentence observed that there were \"absolutely no extenuatmg circumstances to justify imposition of lesser sentence\".\n\nNo doubt, according to the trial court the murder was committed in btoad day-light in the presence of any persons in the heart of the Harijanwada and nothing had transpired on the day of the occurrence which could have conceivably given any provocation to. the appellant so as to incite him to commit the offence and the murder was committed in cold blood with pre-meditation. But it does appear to us that the learned additional Sessions Judge was perhaps not fully conscious of the amendment and his approach suggests that he was looking for some mitigating circumstance to\n\njustfy the imposition of lesser penalty. Having found none, the capital sentence was imposed.\n\nIn the High Court also when the question of sentence was raised it was observed as follows :\n\n\"It is clear !hat the accused intended to murder the deceased.\n\nWe do not find any reason to reduce the sentence passed by the lower court.\n\nWe confirm the .sentence.\"\n\nWhile confirming the capital sentence the High Court had quite clearly an obligation to itself c~:msider what sentence should b<i imposed and not be content with the trial court's decision on the point unless some reason was shown for reducing that sentence~\n\nAs observed in Jumman & others v. The State of Punjab('), in such a case, \"it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent con-· clusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above-mentioned it is for the High Court to ccme to an independent conclusion of its own.\"\n\nNo doubt, as observed by the High Court, tbere were as many as ten incised injuries on the deceased and injuries nos. 1 and 4 were considered by the medical evidence to be fatal. It is also clear that on the. day of the incident nothing had. happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of ss. 300 and 302, I.P.C. That point does not appear to be open to the appellant because this appeal was not admitted. on the\n\nmerits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence\n\n(1) A. I. R. 1957 S. C. 469.\n\nis one of murder, lesser penalty should be imposed in the pre, ent case. Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under Art. 136 of the Constitution to see what sentence pennissible under the law would meet the ends of .iustice now when we are called upon to consider that question.\n\nThe appellant was clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of what he thought was unfaithfulness on the part of the deceased, Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment. In the present case the 3ppellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on .him by the trial court.\n\nThe High Court confirmed the sentence as far back as January 24, 1972.\n\nSince then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant.\n\nNo doubt, this delay has been caused because of the time taken biY the High Court in disposing of the applica:tion for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972.\n\nBut that cannot detract from the acute mental agony to which the appellant must have been subjeC'ted ever since the imposition of the capital sentence on him.\n\nWe find thM in July, 1972 this Court issued notice to the res pondent State to show cause why special leave should not be granted in regard to the sentence.\n\nThe notice was apparently issued without any delay. Btl't the matter was unfortunately not set down for hearing till March 1, 1973. This delay wa; perhaps due to the fact that the respondent-State did not put in appearance.\n\nIndeed, he State was not represented at the hearing either of the special leave petition or of the appeal before us.\n\nNow the. im portance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in r. 21 (2) of O.XXI, it is expressly provided that in such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt oi intimation from the registry of this Court of the filing <Jlthe petition of appeal or of the order granting special leave to appeal. The same anxiety ang concern for speedy disposal of special leave petitions in such cases. is equally desirable.\n\nIt appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the Slate to enter appearance should not have prevented the postin!! or the special leave petition for bearing with the greatest possible dispatch.\n\nNET! SREEllAMULU v. A. P. STATE (Dua, J.) 849\n\nOn the facts and circumstances of this case we feel that rhe interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no g<>od cause to show against the reductioa\n\nof sentence. In Piare Dusadh & others v. Emperor(1) the sentence of death was reduced to one of transportation for life when the conviot had inter alia been awaiting execution of death\n\nentencc for over a year. The Federal Court there observed :-\n\n\"In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind.\n\nHe has besides been awaiting the execution of his death sentence for over a year.\n\nWe think that in this case a sentence of transportation for life would be more appropriate than the sentenee of death.\"\n\nThese observations are equally pertinent to the case in hand.\n\nThe appeal is accordingly allowed and the appellant's sentence is reduced to that 'of imprisonment for life. .\n\ns.c.\n\nAppeal a/lowd.\n\n(I) A.l.R. 1944 F.C.I.", "total_entities": 34, "entities": [{"text": "844\n\nNETI SREERAMULU", "label": "PETITIONER", "start_char": 1, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "NETI SREERAMULU", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 26, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 73, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "D. 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Rana, for the appellant."}}, {"text": "DuA", "label": "JUDGE", "start_char": 2833, "end_char": 2836, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under s. 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence."}}, {"text": "Gadusula Seetha", "label": "OTHER_PERSON", "start_char": 2964, "end_char": 2979, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDuA, J.-In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under s. 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2986, "end_char": 2992, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2994, "end_char": 2999, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 1, 1973", "label": "DATE", "start_char": 3269, "end_char": 3282, "source": "ner", "metadata": {"in_sentence": "In the order granting special leave dated March 1, 1973 it was specifically directed as under :\n\n\"Let an actual date of hearing of the appi; al be fixed which will not be longer than one month from today, and notice of the actual date of hearing oi the appeal shall be sen1 to the respondent forthwith.\""}}, {"text": "July 5, 1972", "label": "DATE", "start_char": 3543, "end_char": 3555, "source": "ner", "metadata": {"in_sentence": "Earlier, on July 5, 1972 the special leave petition .has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only."}}, {"text": "K. K. Mathew", "label": "JUDGE", "start_char": 3627, "end_char": 3639, "source": "ner", "metadata": {"in_sentence": "Earlier, on July 5, 1972 the special leave petition .has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only."}}, {"text": "October 30, 1971", "label": "DATE", "start_char": 3963, "end_char": 3979, "source": "ner", "metadata": {"in_sentence": "The appellant had been sentenced to death as far ck as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court on January 24, 1972."}}, {"text": "Additional Sessions Judge, West Godavari Division at Eluru", "label": "COURT", "start_char": 3987, "end_char": 4045, "source": "ner", "metadata": {"in_sentence": "The appellant had been sentenced to death as far ck as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court on January 24, 1972."}}, {"text": "January 24, 1972", "label": "DATE", "start_char": 4104, "end_char": 4120, "source": "ner", "metadata": {"in_sentence": "The appellant had been sentenced to death as far ck as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court on January 24, 1972."}}, {"text": "Tadimalla", "label": "GPE", "start_char": 4316, "end_char": 4325, "source": "ner", "metadata": {"in_sentence": "The prosecution story as upheld by the High Court stated briefly is that the deceased, who was a married woman, was having an illicit intimacy with the appellant and they were both living ; at Tadimalla."}}, {"text": "Tadmalla", "label": "GPE", "start_char": 4348, "end_char": 4356, "source": "ner", "metadata": {"in_sentence": "Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram,\n\nThere, she had developed illicit intimacy with her husband's brother and is stated to have eloped with him."}}, {"text": "Basavaiah", "label": "OTHER_PERSON", "start_char": 4411, "end_char": 4420, "source": "ner", "metadata": {"in_sentence": "Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram,\n\nThere, she had developed illicit intimacy with her husband's brother and is stated to have eloped with him."}}, {"text": "Eythapuram", "label": "GPE", "start_char": 4424, "end_char": 4434, "source": "ner", "metadata": {"in_sentence": "Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram,\n\nThere, she had developed illicit intimacy with her husband's brother and is stated to have eloped with him."}}, {"text": "Tadimalla village", "label": "GPE", "start_char": 4995, "end_char": 5012, "source": "ner", "metadata": {"in_sentence": "It appears that\n\nthe appellant and the deceased started living together in a portion of the appellant's house in Harijanwada of Tadimalla village."}}, {"text": "Osha Tharmaiah", "label": "WITNESS", "start_char": 5045, "end_char": 5059, "source": "ner", "metadata": {"in_sentence": "According to the testimony of Osha Tharmaiah (P.W. 14) even when the deceased was living with the appellant she was having a liaison with this witness."}}, {"text": "April 24, 1971", "label": "DATE", "start_char": 5204, "end_char": 5218, "source": "ner", "metadata": {"in_sentence": "The deceased met with her death on\n\nApril 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant's house and started Jiving in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14)."}}, {"text": "Gapapati Bapanamma", "label": "WITNESS", "start_char": 5357, "end_char": 5375, "source": "ner", "metadata": {"in_sentence": "The deceased met with her death on\n\nApril 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant's house and started Jiving in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14)."}}, {"text": "Osha Thammaiah", "label": "WITNESS", "start_char": 5415, "end_char": 5429, "source": "ner", "metadata": {"in_sentence": "The deceased met with her death on\n\nApril 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant's house and started Jiving in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14)."}}, {"text": "April 14, 1971", "label": "DATE", "start_char": 5661, "end_char": 5675, "source": "ner", "metadata": {"in_sentence": "On 1he morning c.f April 14, 1971, the deceased went to the Panchayat well to take water to her house and while she was standing there on the platform of the well, the appellant went there, caught hold of her pig-tail from behind with his left hand and delivered two blows on the left side of her neck and gave two or three .blows on her left upper fore-arm."}}, {"text": "s.357", "label": "PROVISION", "start_char": 7898, "end_char": 7903, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302, 1", "label": "PROVISION", "start_char": 8076, "end_char": 8085, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 300 and 302", "label": "PROVISION", "start_char": 10415, "end_char": 10430, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10432, "end_char": 10437, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 10905, "end_char": 10913, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "State of Andhra Pradesh", "label": "ORG", "start_char": 13978, "end_char": 14001, "source": "ner", "metadata": {"in_sentence": "The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no g<>od cause to show against the reductioa\n\nof sentence."}}]}
{"document_id": "1973_3_850_866_EN", "year": 1973, "text": "THE WORKMEN OF H.M.T. & ANR.\n\nTHE PRESIDING OFFICER, NATIONAL\n\nTRIBUNAL, CALCUTTA & OTHERS\n\nApril 3, 1973\n\n(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]\n\nPaynient of Bonus Act, 1964-Payment of minimum bonus under s, 10 whether subject to provisions of .r. 16--Where s. 16(1) applies minimun1 bonus under s. 10 not payable-Different establishments of H.M.T. treated separately each having a separate balance.sheet and profit and Loss account-Exe111ption under ~· 16(1) must be allowed.\n\nUnit No. IV of the Hindustan Machine Tools, a public sector undertaking, was started at Kalamassery, in Kerala in 1963.\n\nProduction and sale at this Unit started in 1965-66.\n\nIn an industrial dispute referred to the National Tribunal at Calcutta the.workmen.of Unit No. IV claimed bo\"us for the years 1963-64 to 1966-67 at the same rate as was paid in Units Nos. I and II aod the Watch Factory of the H.M.T. at Bangalore.\n\nIt was contended by the workmen of Unit No. IV that bonus was payable on the ba•is of the consolidated accounts o'f all the Units of the H.M.T.\n\nThe National Tribunal held that bonus for the year 1963-64 was payable tc the workQ1en of Unit No. IV at the same rate as in Units No5. I and Il and the Watch Factory at Bangalore, but no bonus were payable to them for the years 1964-65 1966-67. In appeal to this Court by special leave it was contended on behalf of the workmen of Unit No .. IV\n\n(appelbnts) (i) that minimum bonus was payable to the appellants for the years 1964\"65 to 1966.-67, under s. 10 of the Payment of Bonus Act, 1964 anJ in applying s. 10 the provisions of s. 16 could not be taken into consideration; (ii) that the H.M.T. ·had in fact maintained a consolidated account for all its Units and the claim of the management that separate profit and loss accounts \\Vere maintained was falsely made to defeat the rights o'f the workmen.\n\nThe management, by leave of the Court challenged the finding of the Tribunal that bonus was payable to the appellants for the year 1963-64.\n\nHELD : (i) The Tribunal was right in holding that the appellants werec not entitled to any bonus for the year 1964-65 to 1966-67.\n\n(a) Though section IO has not been made subject to section 16 the two provisions will have to be read hafmonious1y so as to give effect tothe purpose of the Act.\n\nSection I 0 will apply to all those unlts, which are otherv.ise bound to pay boius, irrespective of the fact whether the units make profit or Jog<-;.\n\nSection 16 has to be read as an exception to section 10.\n\nSection 16( 1) gives a total exemption to the estabHshments in the circumstances n1enHo.rred therein from payment of bonus which includes the minin1um bonus also.\n\nWhen the section says that an employee of the establishment referred to in section 16 shall be entitled \"to be paid bonus tinder this Act\" only if the conditions mentioned therein are satisfied, it is idle to contend thr.t, notwithstanding the exemption granted under section 16. the establishment referred to therein is sill bound to pay minimum bonus.\n\nIf section 16(1) opplies, section 10 will not entitlo an employee to get even the minimum bonus under section 10.\n\nTherefore the contention of\n\nA the appellants that in any event, the minimum bonus under section 10\n\nought to have been awarded, could not be accepted.\n\n1861 E-HJ\n\nAlloy Steel Project v. -The Workmen, 1971 3 S.C.R. 629, referred to.\n\n(b) In this case Units I and II alone have always been treated together 'for the computation of bonus.\n\nAll the other three Units and the Watch Factory at Bangalore hav0 each been treated separately and each of them has been having a separate balancesheet and profit and Joss account.\n\nThi• is the evidence on record which has been accepted by the Tribunal.\n\nThere was no reason to differ from this finding.\n\nAs Unit No. IV is a different establishment coming under the proviso and not falling under the exception to the proviso to section 3, the main part of section 3 will not assist the appellants. Therefore the exemption claimed under section 16(1) by the management for 1964-65 to 1966-67 in respect of Unit No.\n\nIV, has been correctly acceptedly the Tribunal, [863E-G]\n\nDelhi Cloth & General Mills Co. Ltd. v. Workmen, [1972] 1 S.C.R. 594, referred to.\n\n(ii) The Triburial missed certain items of evidence and proceeded on the wrong assumption that profit bonus for the year 1963-64 was paid to the workmen of the Units on the basis of the Full Bench Formula.\n\nHence the direction of the Tribunal that profit bonus was to be paid to Unit No. IV as was paid to the Units at Bangalore was clearly erroneous.\n\nEven otherwise the finding of the Tribunal that all the Units were treated as part of one establishment for purposes of bonus for the year 1963·64. was also erroneous.\n\nFor the above reason, the direction of the Tribunal for payment of bonus for the year 1963-64 to Unit No. IV must be set. aside.\n\n[865EJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 389 of 1970.\n\nAppeal by special leave from the award dated April, 16, 1969 of the National Tribunal, Calcutta in Ref. No. NIT-6 of 1967' published in !he Gazette of India dated May 1 Q, 1969.\n\nF N. Sreekantan Nair, appellant No. 1 in person.\n\nUrmila Kapoor and K. Bansal for appellant No. 2.\n\nG. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,. for respondents Nos. 2 to 7.\n\nAmbrish Kumar and M. V. Goswami, for respontlent No. 1.\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. This appeal by special leave by the workmen of the Hindustan Machine Tools, Unit, IV, Kalamassery, is directed against the award dated April 16, 1969, of the National Tribunal at Calcutta in Reference No. NIT 6 of 1967, holding that the appellants are not entitled to any bonus for the years 1964-65 to 1966-67. ·\n\nBy order dated October 17, 1967, the Central Government made a reference for adjudication of the disputes to the National Tribunal in the following manner :\n\n\"Whereas the Central Government is of opinion that an industrial dispute exists between the employers in respect of the establishments specified in Schedule I and their workmen in respect of the matters specified in Schedule II hereto annexed and that the said dispute is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute; And, whereas the Central Government is of opinion that the dispute should be. adjudicated by a National Tribunal;\n\nAnd, whereas the Central Government is of opinion that the said dispute is of such a nature that the Hindu~\n\nstan Machine Tools it Pinjore and the Hindustan Machine Tools at Hyderabad are likely to be interested in, or affected by, such disputes.\n\nNow, therefore, in exercise of the powers conferred by section 7B, and sub-section (IA) and 5 of section 10, of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby constitutes a National Tribunal of Calcutta, of which Shri S. K. Sen shall be the Presiding Officer, and refers the said disputes to the said National Tribunal for adjudication and includes in that reference, the Hindustan Machine Tools at Pin'jore and the Hindustan Machine Tools at Hyderabad.\n\nSCHEDULE l (I} Hindustan Machine Tools, I, Bangalore. , (2) Hindustan Machine Tools II, Bangalore.\n\n(3) Hindustan Machine Tools IV, Kalamassery, Kerala.\n\nSCHEDULE II\n\n( 1 ) Whether the demand of the workmen in the Hindustan Machine Tools I and II at Bangalore for payment of bonus at the rate of 20 per cent of their salary for the year 1966-67 is justified?\n\nIf not, to what quantum of bonus are they enti~?\n\n(2) Whether the workmen of the Hindustan Machine Tools at Kalamassery, Pinjode and\n\nHyderabad are entitled to any bonus and if so, what should be the quantum of such bonus ? ( 3) Whether the demand of the workmen of the Hindustan Machine Tools I and II of Bangalore and of the Hindustan Machine Tools 1V\n\nat Kalamassery that the bonus should be cal culated on the basis of a consolidated Profit and Loss Account for all the units and all activities and not on the basis of Profit and Loss Account of the separate units and separate activities is justified ?\" Although in Schedule I of the order of reerence only the Units at Bangalore and Kalarnassery were referred to, nevertheless, copies of the reference were sent by the Central Gov· ernment to the labour unions of the Hindustan Machine Tools Limited, Unit No. III at Pinjore (Haryana State) and Unit No. V at Hyderabpd as also to the H.M.T. Watch Factory at Bangalore.\n\nThe unions representing the workmen of the five Units as well as the Watch Factory had filed statements before the National Tribunal. The managements of these different Units had also filed. statements opposing the claims of the unions.\n\nBefore the proceedings commenced, the National Triburtal appears to have felt certain difficulties regarding the scope of the reference. In respect of item 1 of Schedule II, the Tribunal felt\n\na doubt whether it should also consider the question of bonus=for any other year in respect of Units I and II at Bangalore.. Similarly the Tribunal fei't a doubt as to what was the particular year for which the claim. for bonus is to be considered under item 2 of Schedule II. This doubt arose because no year had been mentioned in the reference under this item. For the pur· pose of getting clarification, the Tribunal invited the views of all the unions as well as the management. All parties agreed that when the reference was ambiguous or doubtful, the scope of the reference can be gathered from the pleadings of the parties. Accepting the agreement of the parties, the Tribunal found from the pleadings that the workmen of the Hindustan Machine Tools, Units l and II at Bangalore, had been paid bonus at the rate of 20 per cent for the years 1964-65 and 1965-66. Therefore, it held that the claim of these two Units under item 1 of Schedule\n\nII has to be considered only for the year 1966-67. Similarly in respect of item 2 of Schedule II of the reference, the Tribunal found that the workmen of Unit No. III at Pinjore claimed bonus for the years 1963-64 and 1964-65 according to the Full Bench Fcrmula and for the years 1965-66 and 1966-67 under the provisions of the Payment of Bonus Act, 1965 (hereinafter to be referred to as the Act). Similarly the workmen of Unit No. IV\n\nat Kalamassery claimed bonus from tbe year 1963-64 onwards A on the basis of bonus paid and payable to the Bangalore workmen.\n\nThe workmen of Unit No. Vat Hyderabad claimed bonus at 20 per cent for each of the years, 1965-66 and 1966-67. The workmen of the Watch Factory, who were getting bonus at the maximum rate of 20 per cent, did not require any further bonus to be paid. But that Unit took up the position that the conten- B tion of the various unions who were claiming annual bonus on the basis of the consolidated balance sheets and profit and loss accounts, should be rejected.\n\nHaving crystallised the actual scope of the reference in the manner indicated above, the Tribunal proceeded to consider tbe questions tbat arose for consideration. At this stage it may be stated that the workmen of Unit No. IV at Kalamassery, the appellant before us, claimed bonus for the year 1963-64 and onwards on the basis of bonus paid and payable to the Bangalore workmen. It must also be stated that the claim of the appellants,\n\nas well as that of the workmen of Units Nos. I and II at Bangalore was for payment of bonus on the consolidated profit and D loss account of all the units of the Hindustan Machine Tools Limited situated in Bangalore, Pinjore, Kalamassery and Hyderabad as well as of the Watch Factory.\n\nIn respect of item 1 of Schedule II, the Tribunal held that the workmen of Units Nos. 1 and II at Bangalore are entitled E only to the minimum bonus at 4 per cent under the Act and that their claim for payment at 20 per cent of their salary for the year 1966-67 has to be rejected. The Tribunal answered items Nos. 2 and 3 of Schedule II as follows :-\n\nMy answer to item No. (2) is: The workmen of the Hindustan Machine Tools at F Klilamassery and Pinjore are entitled to the same rate of bonus as is paid to the Watch Factory and. HMT I & II workmen during the year .1963-64. The factory at Hyderabad not having been started by March 31, 1964, becomes disentitled to the provisions of pre- Bonus Act.\n\nSince during the Bonus Act period by G virtue of the maintenance of separate accounts no branch or undertaking.becomes entitled to tbe prosperity of the company, the Hyderabad is not entitled to any bonus at all under the provisions of the Payment of Bonus Act.\n\nMy answer to item No. (3) is : H The demand of the workmen of the Hindustan 1'/achine Tools Ltd. I & II at Bangalore and of the\n\nWORK..>dEN H.M.T. v. PRESIDING OFF!CFR (Vaidia/ingani, J.) 855\n\nHindustan Machine Tools Ltd. No. IV at Kalamassery that bonus should be calculated on the basis of consolidated profit and loss accounts for all the units and for all the activities and not 'on the basis of the profit and loss accounts of the separate units and separate activities is justified, for the year 1963-64 only and not for the years 1964-65, 1965-66 and 1966-67.\"\n\nIt may be stated that none of the workmen aggrieved by one or other or all the findings of the Tribunal on items 1, 2 and 3, excepting the workmen of Unit No. IV at Kalamassery, have come up in appeal. The net result of the above finding so far as Unit No. IV at Kalamassery, which is the appellant, is that its workmen are eligible for bonus for the year 1963-64 at the same. rate of bonus that has been paid to the workmen of the Watch Factory ·\n\nand Units Nos. I and II at Bangalore for the said year. The workmen of Unit No. IV are not entitled to claim bonus for the years 1964-65 to 1966-67 on the basis of the consolidated profit and loss accounts of all the Units of the Hindpstan Machine Tools but only on the basis of the separate profit and loss account maintained for Unit No. IV. After a consideration of the evidence, oral and documentary, the Tribunal held that the said Unit was not entitled to any bonus at all for these three years.\n\nThe workmen of Unit No. IV challenged the disallowance of bonus for the year 1964-65 to 1966-67. At the time of granting special leave, the counsel for the management, respondents 2 to 7 hereill, appears, to have represented that there are certain findings recorded ill the award which are challenged by the management. In view of this representation, this Court passed an order on February 24, 1970, permitting the management to bring to the notice of the learned Judges hearing the appeal the various findings which the management proposes to challenge provided notice has been given to the workmen concerned by puttillg them in the statement of case. Accordingly the management has raised in its statement of case. by. way of cross-objections, its grounds of attack on certain findings. Mainly two matters have been referred, namely-\n\n(! ) the finding of the Tribunal that there was functional intcgrality of all the units for the period 1963-64 and the award in consequence of bonus to all the units at the rate that has been paid to Units Nos. I and II, .and\n\n(2) the statement made by the Tribunal in paragraph 25 of the award abOut payment of bonus to the Watch Factory employees.\n\nThese points have been pressed before us by the learned counsel for the management.\n\nWe will first take up the point regarding the disallowance of bonus for the years 1964-65 to 1966-67 arising in the union's appeal. Mr. N. Sreekantan Nair, the President of the Employees Federation, Appellant No. l, has argued the case in person on behalf of the appellants. It must be stated to his credit that he has .placed the case before us as .lucidly and candidly as possible.\n\nAccording to Mr. Nair the finding of the Tribunal that the various units of the Hindustan Machine Tools Limited located in the different regions, are different 'establishments and that the management has been having separate profit and loss accounts for each of these Units and that it is only on that basis that bonus will have to be calculated, is erroneous.\n\nAccording to Mr. Nair the management, with a view to defeat the legitimate rights of the workmen, have made it appear that there are separate profit and loss accounts maintained for each of the Units, while in reality it is not so.\n\nAccording to him it is only a camoufiage adopted by the management to circumvent the provisions of tbe Act.\n\nEven assuming that separate balance sheets and profit and loss accounts are maintained for each of the Units, he contended that in law the workmen of Unit No. IV at Kalamassery are entitled to the minimum bonus for these years under section 10 of the Act.\n\nThe reliance placed on section 16 by the Tribunal for disallowing such a claim is erroneous.\n\nMr. G. B. Pai, learned counsel for the management, on the other hand, has referred to the material provisions of the Act and also to the evidence on record in support of his contention \"lbat the five Units in the different regions and the Watch Factory are all different entities having their own profit and loss accounts and balance sheets. The management, according to the counsel, has not done any thing to defeat the provisions of the Act. The counsel urged that the view of the Tribunal that Unit No. IV is exempt from payment of bonus for the years 1964-65 to 1966-67 based upon section 16, is correct. Section 10 also, the counsel pointed out, will not help the appellants.\n\nThe history of the Hindustan Machine Tools Limited and the establishment of the five Units at Bangalore, Pinjore, Kalamassery and Hyderabad as well as of the Watch Factory has been very elaborately dealt with by the Tribunal in the award. Nobody has raised any dispute regarding the various matters referred to by the Tribunal. Therefore, we do not propose to cover the grqund over again. From the evidence, the following facts are also clear:- The H.M.T. was incorporated in 1953.\n\nTh~ Unit I in Bangalore was started in 1953, but production and\n\n-, A\n\nsale began in 1956-57. No. II Unit of Bangalore was started in April, 1960. Production and sale from that Unit started in May, 1961. The third Unit at .Pinjore in Haryana was started in May, 1962. Production and sale at that Unit started in the year 1964-65. The 4th Unit at Kalamassery was started in July 1963.\n\nProduction and sale started at that Unit from 1965-66.\n\nThe 5th Unit of the H.M.T. at Hyderabad was started in May, 1964 and production and sale at that Unit started in 1966-67. The Watch Factory at Bangalore was started in September, 1961 and indigenous production of watches started in 1963.\n\nFrom what is stated above, it will be seen that Unit No. 4 at Kalamassery, with which we are concerned, was started in July,\n\n1963. But that Unit commenced production and sale of its articles only from 1965-66. This aspect will have considerable bearing when we consider the impact of section 16. It is now necessary to refer to the material provisions of the Act. The Act by virtue of section 1 ( 4) applies to a factory or department in respect of the accounting year commencing on any day in the year 1964 and in respect of every subsequent accounting year.\n\nTherefore, there can be no controversy that the periods with which we are concerned, namely, 1964-65 to 1966-67, are gov .. erned by the Act.\n\nThe terms 'employees', 'employer', 'establishment in private sector' and 'establishment in public sector' arc defined in clauses 13, 14, 15 and 16 respectively of section 2.\n\nSection 3 dealing with establishments, so as to include departments, undertakings and branches, is as foUows :-\n\nEstablishments to include departments, undertakings and branches\n\n3. \"Where an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, aU such departments or undertakings or branches shaU be treated as parts of the same establishment for the purpose of computation of bonus under this Act : Provided that where for any accounting year a separate balance-sheet and profit and loss account are pre· pared and maintained in respect of any such department or undertaking or branch,. then, such department or undertaking or branch shaU be treated as a separate establishment for the purpose of computation cf bonus under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of that accounting year treated as part 7-L797 S., p. Cl/73\n\nof the establishmnt for the purpose of computation of bonus.\"\n\nSection 8 dealing with the eligibility for bonus is as follows\n\nEligibility for bonus\n\n8. \"Every employee shall be entitled to be paid by his employer in. an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than thirty working days in that year.\"\n\nSection 13 relating to proportionate reduction in bonus in certain cases is as follows :-\n\nProportionate reduction in bonus in certain cases\n\n13. \"Where an employee has not worked for all the working days in any accgunting year, the minimum bonus of forty rupees or, as the case may be, of twenty five rupees, if such bonus is higher than four per cent, of his salary or wage for the days he has worked r. in that accounting year, shall be proportionately reduced.\"\n\nSection I 0 dealing with payment of minimum bonus runs as follows :-\n\nPayment of minimum bonus\n\nJO. \"Subject to the provisions of sections 8 and 13. every employer shall be bound to pay to every employee in an accounting year a minimum bonus which shall be four per cent of the salary or wage earned by the employee during the accounting year or forty rupees, whichever is higher, whether there are profits in the accounting year or pot;\n\nProvided that where such employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have effect in relation to such employee as if for the words \"forty rupees\", the words \"twenty-five rupees\" were substituted.\"\n\nWe have earlier referred to sections 3 and 13 as section I 0 is subject to those two sections.\n\nSection 11 provides for payment of the maximum bonus of 20 per cent of the salary or wages in the circumstances mentioned therein.\n\nSection 16, which contains\n\n~--\n\nWORKMEN H.M; T, v. PRESIDING OFFICER (Vaidiali.gam, J.) 859\n\nspecial provisions with respect to certain establishments, is as follows :- ·\n\nSpecial provisions with respect to certain establishments 16 ( 1) \"Where an establishment is newly set up, whether before or after the commencement of this Act, the employees of such establishment shall be entitled to be paid bonus under this Act only- ( a) from the accounting year in which the employer derives profit from such establishment; or\n\n(b) from the sixth accounting year following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment,\n\nwhichever is earlier : Provided that in the case of any such establishment the employees thereof shall not, save as otherwise provided in section 33, be entitled to be paid bonus under this Act in respect of any accounting year prior to the accounting year commencing on any day in the year 1964.\n\nExplanation 1 :-For the purpose of this section. an establishment shall not be deemed t'b be newly set up merely by reason of a change in its location, management, name or ownership.\n\nExplanation II-For the purpose of clause (a:), an employer shall not be deemed to have derived profit in any accounting year unless-\n\n(a) he has made provision for that year's depreciation to which he is entitled under the Income-tax Act, or as the case may be, under the agricultural income-tax law; and ( b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set off against his profits.\n\nExplanation 111.-For the purpose of clause (b), sale of the goods produced or manufactured during the course of the trial run of any factory or of the prospecting stage of any mine or an oil-field shall not be taken into consideration and where any question arises\n\nwith regard to such production or manufacture, the decision of the appropriate Government, made after giving the parties a reasonable opportunity of representing the case, shall be final and shall not be called in question by any court or oer authority.\n\n( 2) The provisions of sub-section (I) shall, so far as may be, apply to new departments or undertakings 01 branches set up by existing es.tablishments :\n\nProvided that if an employer in relation to an existing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up at different periods has, before the 29th May, 1965, been paying bonus to the employees of all such departments or undertakings or branches irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance with the provisions of this Act to the employees of all such departments or undertakings or branches (whether . set up before or after that date) on the basis of the consolidated profits computed as aforesaid.\"\n\nThe only other section, which requires to be noted, is section 20, which makes the Act applicable to establishments in public sector in certain cases. The Hindustan Machine Tools Ltd. is an establishment in public sector and there is no controversy that by virtue of section 20, the Act applies and it will be liable to pay bonus, if circumstances justify the same.\n\nWe•will now consider the contention of Mr. Nair that under section 10 the Unit No. IV is bound to pay the minimum bonus of 4 per cent for the years in question without reference to any other circumstance.\n\nAccording to him the only provisions, which have to be considered for applying section 10, are, as mentioned therein, the two provisions, namely, sections 8 and 13.\n\nThe contention of Mr. Nair is that the workmen of Unit No. IV satisfy the requirements of sections 8 and 13 and, therefore, they are, as of right, entitled to get the minimum bonus.\n\nMr. Nair further urged that a reference to section 16 is absolutely immaterial for the purpose of considering the applicability of section 10. Section 16, according to him, will come into play only when the workmen claim bonus at .a rate higher than the minimum of 4 per cent provided under section Ht. This. aspect, according to him, has not been at all considered by this Court, when dealing with section 16 of the Act.\n\nA reading of section 10, isolated from the other provisions of the Act, may appear to lend support to the contention of Mr.\n\nNair that an employee, if he satisfies the requirements of sections 8 and 13; will be entitled to get the minjmum bonus. No doubt, Mr. G. B. Pai, learned counsel, has pointed out that the employees of Unit No. IV do not even satisfy the requirements of sections 8 and 13. That apart, though section 10 has not been made subject to section 16, in our opinion, the two provisions will have to be read harmoniously so as to give effect to the purpose of the Act. Section 10 will apply to all those units, which are otherwise bound to pay bonus, irrespective of the fact whether the units make profit or incur loss.\n\nSection 16, in our opinion, has to be read as an; exception to section 10. In particular, it will be noted that section 16 (1), after referring to an establishment newly set up, whether before or after the commencement of the Act, states that \">the employees of s_uch establishment shall be entitled to be paid _bonus under this Act only .... \" It cannot be controverted that payment of even the minimum bonus under section 10 or bonus upto the maximum of 20 per cent, as per section 11, will both be \"payment of bonus under this Act\", as contemplated by section 16.\n\nSimilarly, eligibility for bonus under section 8 \"in accordance with the provisions of this Act\", can be related only to tl_tose cases where the bonus is payable either under section 10 or under section 11.\n\nSection 16 ( 1) gives a total exemption to the establishments in the circumstances mentioned therein from payment of bonus which include the minimum bonus also. When the section says that an employee of the establishment referred to in section 16 shall be entitfed \"to be paid bonus under this Act\" only if the conditions mentioned therein are satisfied, it is idle to contend that, notwithstanding the. exemption granted under section 16, the establishment referred to therein is still bound to pay a minimu, m bonus.\n\nNo doubt that liability to pay the minimum bonus, at any rate, will certainly attach itself to the particular establishment, if one or other of the conditions mentioned in sub-clauses (a) or (b) of section 16(1) come into play. Under such circumstances, it will be open to an employee to claim not only the minimum bonus but also bonus at a higher rate upto the maximum of 20 per cent, if circumstances permit. Mr. Nair is no doubt right in his contention that section 10 has not been referred to by this Court, when dealing with section 16.\n\nThe reason for such nonconsideration is because no such argument, as is now placed before us, appears to have been raised before this Court. Now that S!lch a contention has been raised, we have dealt with it. According to us, if section 16 (1) applies, however, hard the result may be, section 10 will not entitle an employee to get even the minimum bonus under section 10. Therefore, the contention of\n\nMr. Nair that in any event the minimum bonus under section 10 should have been awarded, cannot be accepted.\n\nIn this connection we may also refer to the decision of this Court in Alloy Steel Project v. The Workmen(').\n\nThe question was whether the Alloy 'Steel Project, which was started in 1961 and went into production in 1964-65 and did not earn profits uptc 1967-68, was liable to pay bonus at the minimum rate under the Act for the year 1965-66. On behalf of the Alloy Steel Project, exemption from payment of bonus was claimed under section 16 (I) of the Act on the ground that it was a new establishment and had not made profits.\n\nThis Court held that the said Unit was not liable to pay even the minimum bonus, as claimed by the workmen, in view of the provisions of section 16 ( 1) of the Act. It is no doubt true that there is no reference in this decision to section 10. That is why we have stated earlier that a contention, similar to that advanced by Mr. Nair, was not raised before this Court.\n\nThe next question that arises for consideration is whether the Tribunal was justified in rejecting the claim for bonus for the years 1964-65 to 1966-67. We have already referred to the fact that Unit No. IV was started in July 1963, but production and\n\nsale started only from 1965-66.\n\nTherefore, the question is whether it is liable to be treated as part of the establishment of H.M.T. under section 3 or whether it is entitled to exemption from payment of bonus under section 16. We have already extracted section 3.\n\nIt is to be noted that the principal part of E section 3 lays down that different departments or undertakings or branches of an establishment are to be treated as parts of the same establishment for the purpose of computation of bonus under the Act.\n\nFrom the main provision an exception is carved out by the proviso and there is a further exception to the proviso itself.\n\nThe sum and substance of section 3 is that an establishment initially takes in all establishments, undertakings and branches for the purpose of computation of bonus. But if, in respect of any department, undertaking or branch separate balance sheet and profit and loss account are prepared and maintained fOr any accounting year, then for that particular year; computation of bonus shqll be by treating it as a separate establishment. But this will be subject to a further exception that immediately before the commencement of that accounting year, namely, the accounting year in which a separate balance sheet and profit and loss account is prepared and maintained, such a department or undertaking or branch has not been treated as part of the establishmeii.t for the purpose of computation of bonus.\n\nIn this case Units I and II alone have been always treated together for the purpose of computation of bonus. All the other three Units and\n\n. (!) [1971] 35. C. R. 629\n\nWORKMEN H.M.T. v. PRESIDING OFFICER (Vaidia/ingam, !.) 863\n\nthe Watch Factory at Bangalore have each been treated separately and each of them has been having a separate balance sheet and profit and loss account.\n\nThis is the evidence on record, which has been accepted by the Tribunal. We see no reason to differ from this finding.\n\nThe Controller of Finance of the management, MW 1, has given in detail the various dates when these several units were started and production and sales began.\n\nHe has deposed that H.M.T. Units Nos. I and II at Bangalore were alone treated as one for the purpose of maintenance of accounts and that H.M.T.\n\nUnits Nos. III, IV and V and the Watch Factory were all having separate and independent profit and loss accounts and balance sheets. This practice has been followed from the inception of the different Units. A consolidated balance sheet and profit and loss account was only being prepared for the purpose of the Companies Act. There is no evide, nce 1hat any of the units or undertakings fell within the exception to the proviso in section 3 and that in such branches, immediately before the commencement of the accounting year 1964-65, separate balance sheets and profit and loss accounts for purposes of computation of bonus were prepared and maintained.\n\nIf that was the case, it may well be stated that the appellant-unit was treated as part of the establishment, in this case the H.M.T., for purposes of computation of bonus. In fact the evidence of MW 1 is that no pront bonus was ever paid to any of the employees of even H.M.T. Units Nos. I and II prior to 1964:65. What was paid was only production bonus on the basis of individual performance. Section 3 is the key to the Act, as it fixes the property whkh is to provide the allocable surplus for the distribution of bonus in terms of the Act.\n\nAs the different Units in this case had been treated separately kt the purpose of computation of bonus and separate balance sheets and profit and loss accounts had been prepared in respect thereof, the Units will not lose their separate identity as establishments because of the main provision of section 3 (see Delhi Cloth & General Mills Co. Ltd. v. Workmen('). As Unit No. IV is a different establishment coming under the proviso and not falling under the exception to the proviso to section 3, the main part of section 3 will not assist the appellants.\n\nThen the question is regarding the applicability of section 16.\n\nThe evidence of MW 1, which has been accepted by the Tribunal, is to the effect that Unit No. IV was started in July 1963 and production and sale commenced only from 1965-66.\n\nSection 16 ( 1 ) grants exemption from payment of bonus to establishments newly set up for a period of six years following the accounting\n\n(!) [1972] (1) S. C. R. 594.\n\nyear in which the goods produced or manufactured are sold for the first time and, in th~ alternative, upto the year when the new establishment results in profit, whichever is earlier. Unit No. IV is to be treated as an establishment newly set up, as contemplated under section 16 (I). If so,, the exemption claimed would be fully justified because the contingency contemplated under subclause (a) or ( b) of section 16 (I ) has not happened during the relevant years, 1964-65 to 1966-67. Even if Unit No. IV is considered to be a new department, undertaking or branch set up by the existing establishment, namely, the Hindustan Machine Tools Ltd., section 16 (2) makes the provisions of sub-section ( 1) apply to such units. The proviso to sub-section (2) of section 16 does not stand in the way of the management's claim for exemption because there is no evidence that for any year, after Unit No. IV was set up, bonus was paid to the employees of all the Units on the basis of consolidated profits of all such Units. In fact the evidence, as we have already stated, is contra.\n\nNo doubt it is in evidence that the employees of the Head Office have been treated at par with the employees of Units I and II at Bangalore.\n\nIn the case of the Head Office, calculation of bonus on the basis of consolidated accounts is justified; but that ooes not affect the principle to be applied to the separate units for which separate accounts, separate balance sheets and separate profit and loss accounts are maintained. The proviso to sub-section (2).of section\n\n16 will come in tire way of the management only if bonus is paid\" in any year to the employees of all the Units on the basis of the . E consolidated accounts.\n\nThat is not the evidence in this case.\n\nWe may also state that the evidence in this regard has been very elaborately considered by the Tribunal and we agree with the conclusions arrived at by it. Therefore, the exemption claimed under section 16 (I) by the management for the years 1964-65 to 1966- 67 in respect of Unit No. IV, the appellant, has been correctly accepted by the Tribunal. This disposes of the points raised by the appellant in the appeal.\n\nWe have already referred to the permission granted by this Court by its order dated February 24, 1970, to the respondents\n\nto. attack certain findings.\n\nAccordingly the respondents have G attacked two of the findings recorded by the Tribunal which we have set out earlier. For the accounting year 1963-64. which is the pre-Bonus Act period, the direction of the Tribunal is that Unit No. IV, the appellant, is to get bonus on the basis 0f 1he\n\nconsolidated profit and loss accounts of all the Units in the same manner as was paid to the Watch Factory and H.M.T.\n\nUnits H Nos. I and II for the said year.\n\nThe Tribunal has recorded a finding that during this period there was unity of ownership, management and control and also functional integrality and.\n\ntherefore, all the Units as well as the Watch Factory have to be termed as one establishment and bonus will have to be calculated according to the Full Bench Formula on the consolidated p.tofit and loss accounts of all the Units. This finding is attacked by Mr. G. B. Pai, learned counsel for the respondents. But it is not necessary for us to consider the correctness or otherwise of this finding in view of the fact that we are accepting another contention of his relating to this year. According to the learned counsel the evidence that has been accepted by the • Tribunal itself, clearly shows that there was no profit bonus paid prior to 1964 65 to either H.M.T. Units I and II or the Watch Factory in Bangalore. It was only from and after 1964-65 that bonus was paid to those Units in accordance with the Act. Mr. Pai's COll tention is supported by the evidence of MW 1.\n\nFrom the evidence of this witness it is clear that no profit bonus was paid to the above Units prior to 1964-65 and what was paid was only production bonus based on individual performance. Apart from the evidence of this witness, there is also an agreement Exl. 3 dated August 10, 1962, between the management and the workmen of Units Nos. I and II at Bangalore. That agreement provides for payment of deferred annual bonus.\n\nThe quantum of such bonus as well as the circumstances under which it is to be paid to each worker, has also been detailed in the said agreement.\n\nThe Tribunal, unfortunately, missed these items of evidence and has proceeded on the assu_mption tbat profit bonus for the year 1963-64 was paid to the workmen of these Units on the basis of the Full Bench F'ormula.\n\nThis reasoning is erroneous.\n\nHence the direction of the Tribunal that profit bonus is to be paid to Unit No. IV, as was paid to the Units at Bangalo1e, is clearly erroneous, as it is totally unworkable. Even otherwise the find-_ ing of the Tribunal that all the Units were treated as part of one F establishment for purposes of bonus for the year 1963-64, is also •erroneous. For the above reasons, the direction of the Tribunal for payment of bonus for the year 1963-64 to Unit No. IV has to be set aside.\n\nThe second finding that has been attacked by Mr. Pai is the statement, contained in paragraph 25 of the award that, it appears from Ext. A ( 2) , the balance sheet and the profit and loss account for the year 1963-64, an amount of Rs. 18,80,902/- was paid as bonus to the employees of the Watch Factory and Units Nos. I and II at Bangalore. A persuai' of the entry in' Ext. A(2) shows that the particular entry regarding this amount relates to payments made to Units Nos. I and II and not to the Watch FaC.. tory. It will be seen that no claim whatsoever was put forward before the Tribunal by the workmen of the Watch Factory. We have already referred to the stand taken by the workmen of ~\n\nWatch Factory, who were getting bonus at the maximum rate, A that they wanted the claim of the other unions for bonus on consolidated balance sheets and profits and loss accounts to be rejected,.\n\nIn the result the appeal is dismissed. The finding recorded against the management on the points referred to above are also set aside. The position will be that the claim of the appellant, 8 Unit No. IV, for payment of bonus for the years 1963-64 to 1966-67 will stand rejected. There will be no order as to cJsts.\n\nG.C.\n\nAppeal dismissed. c", "total_entities": 151, "entities": [{"text": "THE WORKMEN OF H.M.T. & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "THE WORKMEN OF H.M.T. & ANR", "offset_not_found": false}}, {"text": "THE PRESIDING OFFICER, NATIONAL\n\nTRIBUNAL, CALCUTTA & OTHERS", "label": "RESPONDENT", "start_char": 30, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "THE PRESIDING OFFICER, NATIONAL TRIBUNAL, CALCUTTA & OTHERS", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 108, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 125, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "I.D. 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Sreekantan Nair", "label": "PETITIONER", "start_char": 5147, "end_char": 5167, "source": "ner", "metadata": {"in_sentence": "F N. Sreekantan Nair, appellant No."}}, {"text": "Urmila Kapoor", "label": "LAWYER", "start_char": 5197, "end_char": 5210, "source": "ner", "metadata": {"in_sentence": "Urmila Kapoor and K. Bansal for appellant No."}}, {"text": "K. Bansal", "label": "LAWYER", "start_char": 5215, "end_char": 5224, "source": "ner", "metadata": {"in_sentence": "Urmila Kapoor and K. Bansal for appellant No."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 5247, "end_char": 5256, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,.", "canonical_name": "G. B. Pai"}}, {"text": "P. P. Bopanna", "label": "LAWYER", "start_char": 5258, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,."}}, {"text": "K. N. Bhatt", "label": "LAWYER", "start_char": 5273, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,."}}, {"text": "M. M. Ksh11triya", "label": "LAWYER", "start_char": 5289, "end_char": 5305, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, P. P. Bopanna, K. N. Bhatt and M. M. Ksh11triya,."}}, {"text": "Ambrish Kumar", "label": "LAWYER", "start_char": 5338, "end_char": 5351, "source": "ner", "metadata": {"in_sentence": "Ambrish Kumar and M. V. Goswami, for respontlent No."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 5356, "end_char": 5369, "source": "ner", "metadata": {"in_sentence": "Ambrish Kumar and M. V. Goswami, for respontlent No."}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 5439, "end_char": 5451, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. This appeal by special leave by the workmen of the Hindustan Machine Tools, Unit, IV, Kalamassery, is directed against the award dated April 16, 1969, of the National Tribunal at Calcutta in Reference No."}}, {"text": "Central Government", "label": "ORG", "start_char": 5808, "end_char": 5826, "source": "ner", "metadata": {"in_sentence": "By order dated October 17, 1967, the Central Government made a reference for adjudication of the disputes to the National Tribunal in the following manner :\n\n\"Whereas the Central Government is of opinion that an industrial dispute exists between the employers in respect of the establishments specified in Schedule I and their workmen in respect of the matters specified in Schedule II hereto annexed and that the said dispute is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute; And, whereas the Central Government is of opinion that the dispute should be."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 6077, "end_char": 6087, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 6145, "end_char": 6156, "source": "regex", "metadata": {"statute": null}}, {"text": "Hyderabad", "label": "GPE", "start_char": 6632, "end_char": 6641, "source": "ner", "metadata": {"in_sentence": "adjudicated by a National Tribunal;\n\nAnd, whereas the Central Government is of opinion that the said dispute is of such a nature that the Hindu~\n\nstan Machine Tools it Pinjore and the Hindustan Machine Tools at Hyderabad are likely to be interested in, or affected by, such disputes."}}, {"text": "section 7B", "label": "PROVISION", "start_char": 6761, "end_char": 6771, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 6803, "end_char": 6813, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 6822, "end_char": 6851, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "National Tribunal of Calcutta", "label": "COURT", "start_char": 6910, "end_char": 6939, "source": "ner", "metadata": {"in_sentence": "Now, therefore, in exercise of the powers conferred by section 7B, and sub-section (IA) and 5 of section 10, of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby constitutes a National Tribunal of Calcutta, of which Shri S. K. Sen shall be the Presiding Officer, and refers the said disputes to the said National Tribunal for adjudication and includes in that reference, the Hindustan Machine Tools at Pin'jore and the Hindustan Machine Tools at Hyderabad."}}, {"text": "S. K. Sen", "label": "OTHER_PERSON", "start_char": 6955, "end_char": 6964, "source": "ner", "metadata": {"in_sentence": "Now, therefore, in exercise of the powers conferred by section 7B, and sub-section (IA) and 5 of section 10, of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby constitutes a National Tribunal of Calcutta, of which Shri S. K. Sen shall be the Presiding Officer, and refers the said disputes to the said National Tribunal for adjudication and includes in that reference, the Hindustan Machine Tools at Pin'jore and the Hindustan Machine Tools at Hyderabad."}}, {"text": "Hindustan Machine Tools II, Bangalore", "label": "RESPONDENT", "start_char": 7252, "end_char": 7289, "source": "ner", "metadata": {"in_sentence": "2) Hindustan Machine Tools II, Bangalore."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 8173, "end_char": 8183, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalarnassery", "label": "GPE", "start_char": 8241, "end_char": 8253, "source": "ner", "metadata": {"in_sentence": "Although in Schedule I of the order of reerence only the Units at Bangalore and Kalarnassery were referred to, nevertheless, copies of the reference were sent by the Central Gov· ernment to the labour unions of the Hindustan Machine Tools Limited, Unit No."}}, {"text": "Hindustan Machine Tools Limited", "label": "ORG", "start_char": 8376, "end_char": 8407, "source": "ner", "metadata": {"in_sentence": "Although in Schedule I of the order of reerence only the Units at Bangalore and Kalarnassery were referred to, nevertheless, copies of the reference were sent by the Central Gov· ernment to the labour unions of the Hindustan Machine Tools Limited, Unit No."}}, {"text": "Pinjore", "label": "GPE", "start_char": 8425, "end_char": 8432, "source": "ner", "metadata": {"in_sentence": "III at Pinjore (Haryana State) and Unit No."}}, {"text": "Haryana State", "label": "GPE", "start_char": 8434, "end_char": 8447, "source": "ner", "metadata": {"in_sentence": "III at Pinjore (Haryana State) and Unit No."}}, {"text": "Hyderabpd", "label": "GPE", "start_char": 8467, "end_char": 8476, "source": "ner", "metadata": {"in_sentence": "V at Hyderabpd as also to the H.M.T. Watch Factory at Bangalore."}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 8927, "end_char": 8938, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 9223, "end_char": 9234, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule\n\nII", "label": "PROVISION", "start_char": 9897, "end_char": 9909, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 9992, "end_char": 10003, "source": "regex", "metadata": {"statute": null}}, {"text": "Payment of Bonus Act, 1965", "label": "STATUTE", "start_char": 10235, "end_char": 10261, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kalamassery", "label": "GPE", "start_char": 11162, "end_char": 11173, "source": "ner", "metadata": {"in_sentence": "IV at Kalamassery, the appellant before us, claimed bonus for the year 1963-64 and onwards on the basis of bonus paid and payable to the Bangalore workmen."}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 11680, "end_char": 11691, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 11982, "end_char": 11993, "source": "regex", "metadata": {"statute": null}}, {"text": "Since during the Bonus Act", "label": "STATUTE", "start_char": 12359, "end_char": 12385, "source": "regex", "metadata": {}}, {"text": "Payment of Bonus Act", "label": "STATUTE", "start_char": 12599, "end_char": 12619, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindustan Machine Tools Ltd.", "label": "ORG", "start_char": 12815, "end_char": 12843, "source": "ner", "metadata": {"in_sentence": "3) is : H The demand of the workmen of the Hindustan 1'/achine Tools Ltd. I & II at Bangalore and of the\n\nWORK..>dEN H.M.T. v. PRESIDING OFF!CFR (Vaidia/ingani, J.) 855\n\nHindustan Machine Tools Ltd. No."}}, {"text": "Hindpstan Machine Tools", "label": "ORG", "start_char": 13870, "end_char": 13893, "source": "ner", "metadata": {"in_sentence": "IV are not entitled to claim bonus for the years 1964-65 to 1966-67 on the basis of the consolidated profit and loss accounts of all the Units of the Hindpstan Machine Tools but only on the basis of the separate profit and loss account maintained for Unit No."}}, {"text": "February 24, 1970", "label": "DATE", "start_char": 14525, "end_char": 14542, "source": "ner", "metadata": {"in_sentence": "In view of this representation, this Court passed an order on February 24, 1970, permitting the management to bring to the notice of the learned Judges hearing the appeal the various findings which the management proposes to challenge provided notice has been given to the workmen concerned by puttillg them in the statement of case."}}, {"text": "N. Sreekantan Nair", "label": "PETITIONER", "start_char": 15553, "end_char": 15571, "source": "ner", "metadata": {"in_sentence": "Mr. N. Sreekantan Nair, the President of the Employees Federation, Appellant No."}}, {"text": "Nair", "label": "OTHER_PERSON", "start_char": 15819, "end_char": 15823, "source": "ner", "metadata": {"in_sentence": "According to Mr. Nair the finding of the Tribunal that the various units of the Hindustan Machine Tools Limited located in the different regions, are different 'establishments and that the management has been having separate profit and loss accounts for each of these Units and that it is only on that basis that bonus will have to be calculated, is erroneous."}}, {"text": "section 10", "label": "PROVISION", "start_char": 16739, "end_char": 16749, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 16786, "end_char": 16796, "source": "regex", "metadata": {"statute": null}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 16861, "end_char": 16870, "source": "ner", "metadata": {"in_sentence": "Mr. G. B. Pai, learned counsel for the management, on the other hand, has referred to the material provisions of the Act and also to the evidence on record in support of his contention \"lbat the five Units in the different regions and the Watch Factory are all different entities having their own profit and loss accounts and balance sheets.", "canonical_name": "G. B. Pai"}}, {"text": "section 16", "label": "PROVISION", "start_char": 17442, "end_char": 17452, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 17466, "end_char": 17476, "source": "regex", "metadata": {"statute": null}}, {"text": ".Pinjore", "label": "GPE", "start_char": 18244, "end_char": 18252, "source": "ner", "metadata": {"in_sentence": "The third Unit at .Pinjore in Haryana was started in May, 1962."}}, {"text": "Haryana", "label": "GPE", "start_char": 18256, "end_char": 18263, "source": "ner", "metadata": {"in_sentence": "The third Unit at .Pinjore in Haryana was started in May, 1962."}}, {"text": "section 16", "label": "PROVISION", "start_char": 18987, "end_char": 18997, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 19088, "end_char": 19097, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 19570, "end_char": 19579, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19582, "end_char": 19591, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 20632, "end_char": 20641, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 20959, "end_char": 20969, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 8 and 13", "label": "PROVISION", "start_char": 21556, "end_char": 21573, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 3 and 13", "label": "PROVISION", "start_char": 22172, "end_char": 22189, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 22240, "end_char": 22250, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 22372, "end_char": 22382, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 23234, "end_char": 23244, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 23801, "end_char": 23815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "29th May, 1965", "label": "DATE", "start_char": 24952, "end_char": 24966, "source": "ner", "metadata": {"in_sentence": "( 2) The provisions of sub-section (I) shall, so far as may be, apply to new departments or undertakings 01 branches set up by existing es.tablishments :\n\nProvided that if an employer in relation to an existing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up at different periods has, before the 29th May, 1965, been paying bonus to the employees of all such departments or undertakings or branches irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance with the provisions of this Act to the employees of all such departments or undertakings or branches (whether ."}}, {"text": "section 20", "label": "PROVISION", "start_char": 25591, "end_char": 25601, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 25803, "end_char": 25813, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 25962, "end_char": 25972, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 26188, "end_char": 26198, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 8 and 13", "label": "PROVISION", "start_char": 26255, "end_char": 26272, "source": "regex", 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statement, contained in paragraph 25 of the award that, it appears from Ext."}}]}
{"document_id": "1973_3_867_877_EN", "year": 1973, "text": "CHAGANTI KOTAIAH & ORS.\n\nGOGINENI VENKATESHWARA RAO & ANR.\n\nApril 3, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAID!ALINGAM, JJ.]\n\nCode of Criminc.:l. procedure (Act S o1 1898) s. 439-Revision against acquittal by private party-Powers of High Court.\n\nIn connection with the murder of two persons and injuries sustained by some prt>secution witnesses, 30 persons were tried by the Sessions Court for offences under ss. 148, 302 read with s. 149 or altematively,. under s. 302 read with s. 34 and ss. 323, 324 and 326 I. P. C. The trial court C\\, nvicted 8 of them Of some of the offences but acquitted them Of th_e other offences, and alo acquitted the remaining 22 accused of all the charges. The co, nvicted 8 accwed filed appeals before the High Court. The State had not filed any appeal but, one of the prosecution witnesses, as a private party, filed a criminal revision challenging thecon1plete acluittal of the 22 accused as well as the acquitt'3.l of the 8 convicted persons of the other charge5.\n\nThe High Court set aside the judgment of the trial court and remanded the entire case for retrial.\n\nAllowing the appeals to this Court, HELD : The order of the High Court in the revision case should: be set aside nnd the appeals filed by the 8 accused should be remanded to the High Court for disposal according to law.\n\n[8770-H] The entire approach of the High Court in dealing with the criminal: revision was contrary to the principles laid down by this . Court and\" the interference in revision by the High Court was unjustified. [S76C-D]\n\n(a) On the evidence on record, it could ,, ot be said that the acquittal of the 22 .1ccused or of the 8 accused on some of the charges was not justified.\n\n[877D-E] lb) Notwithstanding the fact that s. 439(4), Cr. P.C., does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in the present case, in fact contravened this provisiorr by recording a finding of guilt against the accused and directing thetrial court to convict them aft.er retrial. The High Court missed the important hmitations on its power and set aside the finding of acquittal,. in revision, which could be done only in very exceptional circumstances. [876C-D, Hf ( c!) The detailed consideration of the evidence by the High Court and expression of opin-ion about the guilt of the accued has really loaded the dice against the accused when the case would go back for retrial.\n\n[877A-BJ ( d) The High Court had admittedly not considered the grievance of the 8 convicted accused in their criminal appeals. [8750) ( e) There is no question of lac'I< of jurisdiction ill the trial coui:t to try the case.\n\nNor was any attack made that any evidence had been.\n\nH shut out at the trial. [876D-E, F-0]\n\n(f) There was no shutting out at the trial of any evidence whiclr !he prosecLotion wanted to adduce or the defence wanted to lead. All\n\nava able evidence had been let in by both. The mere fact that theirial court held that a dyi:ng declaration was not relevant while rons'idering the att\"ack on another person did not amount to shutting out evidence at the trial. [876E-F]\n\n(g) It could not be said that there has been any glaring defect in the procedure or a manifest error on a point of law leading to a ftagrat'\\t miscarriage of justice.\n\n[876G]\n\n(h) It could l><Jt also be said that the trial court did not consider B the alternative charges under s. 34 and s. 149. The trial court had held that in view of the definite case of the prosecution and the nature of the evidence, none of the accused could be held constructiveh liable . . [S77B-Cj\n\nK. C'1in11aswamy Reddy v. State of Andhra Pradesh, [1963] 3 S.C.R. 412, Maliendra Pratap Singh v. Sarju Singh & Anr. [1968] 2 S.C.R. 287, Khetrabc.si Sama! etc. v. State of Orissa etc., [1970] 1 S.C.R. 880 and C Amar Char.d Agar.Valla v. Shanti Bose and Another etc., Criminal Appeals Nos. 101-103 decided on 22-12-1972, fellowed.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 173 & 174 of 1970.'\n\nAppeals by special leave from the judgment and order dated August 25, 1970 of the Andhra Pradesh High Court at Hyderab1d in Criminal Revn. No. 727 of 1969 and Cr. A. Nos. 201 and 202 of 1969.\n\nP. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals).\n\nT. V. S. Narasimhachari and K. Jayaram, for respoudent No.\n\nE 1 (in Cr. A. No. 173).\n\nP. Ram Reddy, P. Parameshwara Rao, for respondent Ne). 2 (in Cr. A. No. 173) & for respondent (in Cr. A. No. 174).\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J.\n\nThese two appeals, by special kave, are directed against the judgment and order dated August 25, 1970, of the High Court of Andhra Pradesh in Criminal Revision Case No. 727 of 1969 and Criminal Appeals Nos. 201 and 202 of 1969, setting aside the judgment of the Second Additio1d Sessions Judge, Guntur, in Sessions Case No. 121 of 1968 nd remanding the entire case for retrial.\n\nIn connection with the murder of two persons, Gogineni Koteswara Rao and Venigand!a Ratnababu, and the injuries sus- tained by the prosecution witnesses, PWs 5 to 7 and 13, on August 16, 1968. thirty persons were tried by the learned Sessiom Judge of Guntur for offences under section 148 and section 302 ; ead with s. 149 or alternatively under section 302 read with se:-\n\ntion 34 and sections 323, 324 and 326 of the Indian Penal Code.\n\nThe learned Sessions Judge found that accused No<. 5 to 7, 14, 18, 19, 24 and 25 had participated in part of the o;; currence that took place on that c4Y and convicted the under section 148. The 5th accused was convicted under section 302 for causing the death of Ratnababu and was sentenced to undergo imprisonment for life. Accused Nos. 6 and 7, who were found guilty of causing simple injuries to Ratnababu, were convicted under section 324 .. Accused Nos. 14, 19, 24 and 25 were found guilty of causing injuries to PW 7. Accused No. 25 was conviCted under section 323 while the three others were convicted under setcion 324. Accused No. 1$ was found guilty of causing. injuries to PW 13 and convicted under section 324. Sentences of imprisonment of varying terms were imposed on the accused found guilty under sections 323 and 324. A sentence of rigorous imprisonment was also imposed on all these eight accused for the offence under section 148. The sentences of imprisonment were directed to run concurrently.· The learned Sessions Judge found that none of the accused can be held guilty of the offence of causing the death of Koteswara Rao nor for the injuries sustained by PWs 5 and 6. Accordingly he acquitted the eight convicted accused of all the other charges. Similarly he also Jound that. the other twenty-two accused were not guilty of any of the offences with which they were charged and accordingly acquitted them.\n\nAccused No; 5 challenged his conviction before the High Court in Criminal Appeal No. 201 of 1969. The other seven E . convicted accused, namely, accused Nos. 6, 7; 14, 18, 19, 24 and .\n\n25, filed Criminal Appeal No. 202 of 1969.\n\nOne Gogineni Venkateswara Rao, who gave evidence.as PW 7 and who was a brother of the deceased, Koteswara Rao, filed Criminal Revision Case No. 727 of 1969 under sections 435 and 439 of the Code\n\nof Criminal Procedure before the High Court against all the thirty accused challenging the several acquittals recorded against them by the learned Sessions Judge.\n\nThe High Court allowed . the two Criminal Appeals as well as the Criminal Revision and after setting aside the judgment of the Sessions Court, remanded \"the entire case for retrial.\n\nCriminal Appeal No. 173 of 1970 is by all the thirty accused against the order in Criminal Revision Case No. 727 of 1969; while Criminal Appeal No. 174 of 1970 is by the eight accused, who had been convicted for different offences under sections 302, 148, 323 ; ind 324.\n\nMr. Basi Reddy, learned counsel for the appellants in both . the appeals, has attacked the judgment of the High Court on the ground that the High Court has exceeded its jurisdiction in order- H ing a rtrial at the instance of a pri'.'ate party, namely, PW 7.\n\nAccordmg to the learned counsel, the Judgment of the Trial Court . does not suffer from any of the infirinities the existence of which alone gives jurisdiction to a High Court under exceptional cir-\n\n,970.\n\nSUPREME COURT REPOJ.TS\n\n(1973] 3 S.C, R.\n\ncumstances to interfere under its revisional jurisdiction at the instance of a private party. It was further urged that there has been no consideration of the appeals filed by the eight accused, who had been convicted of certain offences.\n\nThe reasons given by the Trial Court for acquitting completely the twenty-two acocused and for acquitting the eight convicted accused of certain other offences were fully supported before us. It was finally .ilrged that no case had been made out for interference by the High Court in. its revisional jurisdiction and the proper approach should have been to dispose of on merits the two Criminal Appeals filed by the eight convicted accused.\n\nOn the other hand, Mr. Narasimhachari, learned counsel .appearing for PW 7, who filed the Criminal Revision, no doubt attempted to support in full the order of retrial passed by the High Court.\n\nWe should frankly say that he found considerable difficulty in supporting the wholesale retrial ordered by the High Court. But the learned counsel presse; i before us for acceptance 'the infirmities pointed out by the High Court in the reasoning of the learned Sessions Judge which, according to him, iustified at least a reconsideration of the whole matter by the Trial Court In particular it was stressed that >there has been no consideration by the Trial Court of the constructive liability of the accused of the various offences with which they were charged read with section 34 or in the alternative, section 149. The reasons given by the Trial Court for holding that the dying declaration, Ext.\n\nP 15, made by Ratnababu cannot be treated as eviCience regarding the attack on Koteswara Rao, are erroneous in law. By this reasoni11g the Trial Court has really shut out that piece of vital evidence 'from consideration. These are some of the aspects that have been stressed for sustaining the order of the High Court. As the State is a. party in the appeals before us, we have heard its counsel, Mr. Ram Reddy, merely to assist us. Mr. Ram Reddy ha> also supported the above reasons and has urged that these circumstances clearly show that there has beeri no proper trial before the learned Trial Judge. In view of the very serious infirmities in the reasoning of the Trial Court, the only proper course to be adopted-and which, according to him, has been rightly adopted by the High\n\nCout1-'is to have a retrial.\n\nIn the view we 1ake that the order of the High Court ordering a retrial cannot be sustained and the two Criminal A pp ea ls filed bv the eight convicted accused will have to be sent b'ack to the High Court for being heard and disposed of on merits.\n\nWe do not think it necessary to very elaborately deal. with the various items of evidence on record as also the reasons given by the learned Sessions Judge. In order not to prejudice the hearing of the apperl.s by the High Court, we retrain also from making any com-\n\nCHAGANTI KOTAIAH v. G. v. RAO (Vaidia/ingam, J.) 871\n\nments or remarks about the nature of the evidcmce adduced by the prosecution as well as the criticism of the same by the -accused.\n\nIt is now necessary to broadly state the. case of the prosecution as well as the findil)gs recorded by 'the learned Sessions Judge.\n\nIn the village of Visadala there were two factions, one led by the 3rd accused and the other by PW 23, a brother of Koteswara Rao, one of'the deceased. All the thirty accused belong to the party of the 3rd accused.\n\nThe 2nd accused was the Sarpanch of the village and the 1st accused was the acting Village Munsif at the time of the occurrence i.e. August 16,'1968. PW 23 was the President of the village Panchayat from 1956 to 1964 after which period the 2nd accused came to power. There was a mu!tj-purpose Cooperative Society established in 1963 in the village a.nd the mernbrs o.f l:joth 1he factions claimed to be the President or Secretary of this society. This rival claim was the\n\nsubject of Writ Petitians in the High Court. The 1st accused the acting Village Munsif at the time of the occurrence and his appointment was bitterly resented by the oppo5ite group. All\n\n0 this clearly show that was acute bitterness and rivalry between the members of the two groups.\n\nThe proseculion case is as follows : On the morning of August 16, 1968, PWs 5 and 6 who are brothers and who had taken• a land on lease for cultivation, raisad a cross-bund in the canal for the purpose of diyerting water to their field.\n\nSome time later, accused Nos. 2, 6 and 21 came and asked PWs 5 and 6 to remove the cross-bund but they refused.\n\nThe third accused loft the place abusing the two witnesses. About 12 Noon on the same day, PWs 5 and 6 noticed that there was diminuHon of water in the canal. At that time Ratnababu, who was coming along-side the canal, was asked by these witnesses to plug amy leakage near the cross-bund. Ratnab)lbu accordingly was trying to Close the leakage when all the thirty accused, who belonged to one faction, came to that place armed w'.th different weapons. The !st accused stabbed PW 5 with a spear both on his chest and on his temple. The 6th accused stabbed PW 5 on the right palm and the right wrist. The 3rd accused beat PW5 with a spear on his hand.\n\nWhen PW 6 interfered, he was stabbed with a spear on the left chest by A-27 and was also beaten on the head back and leg by A-21. All the accused then.ran towards Ratnababu, who was plugging the hole in the siphon. Ratnababu. on seeing the accused coming towards his direction, ran to the field of PW 23 where Koteswara Rao with his brother, PW 7, was working.\n\nAccused Nos. 1 to 4 stabbed Koteswara Rao QD, the various parts of his body with spears and after he fell down. they along with A 12, A 13, A 22 and A 23 inllicted further injuries. When PW- 7 attempted to interfere to save his brother, he was attacked by A 14, A 19, A 24 and A 25. He was also kicked by A 20. Some\n\nof the accused turned their attention on Ratnababu. A 5, A 6, A 7, A 8 and A 10 inflicted spear injuries on Ratnababu. When PW 13 came to help Ratnababu, he was speared by A 18.\n\nAll the accused !hen ran away from the place.\n\nPW; ! to 4 had witnessed the entire occurrence.\n\nKoteswara Rao was removed to his house in the village and he died within a very _short lime.\n\nRatnababu was taken to the Government General Hospital, Guntur and, as his condition was very serious, a dying declaration, Ext. PIS, recorded by the Magistrate, PW\n\n16, at about 8.40 P. M., the same day. Ratnababu died at 1. 29 A.M. on .August 17, 1968. The Magistrate had also recorded a statement, Ext. P 1, from PW 5 and a statement, Ext. P 16, from A 30. At this stage it may be mentioned that the witnesses, who C\n\nreceived injuries, namely, PWs 5, 6, 7 and 13 as well as some of the accused, who had received injuries, namely, A 5, A 14, A 29 am! A 30, had all arrived at the Government General Hospital, Guntur, at about the same time and were treated by the same doctor.\n\nThere is on record the wound certificates issued in respect of these persons. Apart from the wound certificate issued to Ratnababu, at the time of his admission to the Hospital there is also the description of the injuries sustained by him, as mentioned in the postmortem certificate.\n\nThere is also on record the postmortem certificate issued to the other deceased, Koteswara Rao, which also shows that he had sustained a number of injuries.\n\nMost of the accused. when they were examined under section 312, pleadeJ complete ignorance about the occurrence. The 5th accused, however pleaded that on the date of the occurrence he, along with Al4 and A30, had gone to water the field of A30.\n\nNear the cross-bund they .found PWs 5 to 7, 13 and 23, the deceased Ratnababu and certain others. A 30 requested PW 23 to remove the cross-bund to enable him to take water to his field.\n\nOn their refusal A30 attempted to remove the cross-bund when at the instigation of PW 23 he was stabbed by one Appa Rao and als\"\n\nattacked by PW 23.\n\nPW 23 also beat him and ran away. A 14 stated that he was beatn at the cross-bund by PW 23. A 29 also pleaded that he smtained injuries at the cross-bund when he was with AS. A 14 and A30.\n\nA30 also gave a somewhat similar statement.\n\nThus it will be seen that while according to the prosecution the occurrence took place Ln two stages, one at the place where the cross-bund was erected and the other in the field of PW23, on the other hand, accordin~ to the defence, the occurrence had taken place at the place where the cross-bund was raised by PWs S and 6 and that there was no incident whatsoever near the field of PW 23. The learned Sessions Judge made a local inspection of the s; ene of occurrence and has also noted his observations. It\n\nwill be seen that according to the learned Sessions Judge the field of PW 23 was at a distance of 290 yards, as the crow flies, from the place of the cross-bunding. He has further noted that there\n\nwas a donka which was about five feet lower in level compared to tl\\e neighbouring fields and that it would not have been possible for the accused, who were at the crosi:-bund, to see wnd identify anybody who may have been near the donka.\n\nThe learned Sessions Judge, after a consideration of the dying declaration of Ratnababu, Ext. P 15, and other evidence, is of the view that the prosecution case of Ratnababu running from the siphon to the field of PW 23 and that he was chased by the accused, .is improbable. It is the view of the learned Judge that •the prosecution has not come forward with the truth as to how the accused, after the occurrence at the cross-bund, happened to be near the field of PW 23. Regarding the occurrence at the crossbund, the court's view is that there is the evidence of only PWs 5 and 6.\n\nThough PWs 5 and 6 had received injuries, they have not said anything as to how accused Nos. 5, 14, 29 and 30 sustained injuries. These accused also have sustained injuries at the same time as PWs 5 and 6 and at the same place, namely, the crossbund. The prosecution has stressed as to how these accused received injuries. In view of these and other circumstances, the finding of the learned Sessions Judge is that these four accused had acted in self defence at the incident that took place at the cross-bunding by PWs S and 6. The injuries sustained by PWs 5 and 6 being of a very minor nature sustained by them wnen the said accused acted in self defence, none of those accused are guilty of any offence regarding this particular incident.\n\nRegarding the second stage of the occurrence at the field uf PW 23, the Trial Court's view is that the witnesses, who spoke to the same, are PWs 1 to 4, 7 and 13. PWs 7 and 13 had (eceived injuries. After a consideration of the evidence of PWs 1 to 4, the learned Judge expresses the view that they are tutored witnesses and that they have been selected because they belong to the party of PW 23.\n\nThe learned Judge disbelieved their evidence and eschewed the same from consideration.\n\nLeft with the two other Witnesses, namely, PWs 7 and 13, the Trial Court is of the view that they being interested witnesses, their evidence will have to be treated with great caution and that it would be safe to accept their evidence only if it is corroborated biy other independent evidence.\n\nUltimately the learned Judge held that their evidence cannot be accepted regarding the atltack on Kuteswara Rao.\n\nHaving regard to the evidence adduced in the case, the'learned Judge has recorded. a finding that nOille of the accused can be held liable for the offence of causing the death of Kuteswara Rao.\n\nS~L 797Sup.C. I. /73\n\nBut so far as the attack on Ratnababu was concerned, the learned Judge took into account the evidence of PWs 7 a.nd 8, the medical evidence as also the dying declaration, Ext. P 15 and convicted accused Nos. 5 to 7, 14, 18, 19, 24 and 25 in the inanner mentioned by us earlier.\n\nThe learned Judge has also given reasons as to why some of these accused are not guilty of the CYlher offences with which they were charged and also for B acquitting the rest of the tweritytwo accused.\n\nThe learned Judge has also given the reasons for convicti1ng some cf the accused only under sections 323 and 324.\n\nThe learned Judge's further view is that though certain charges had been framed read with section 34 or alternatively with 149, in the manner in which the incident has ul'tima1ely been found to have happened, there is no c scope for making any of the accused constructively liable under these provisions.\n\nWe have already mentioned that it is only the convicted eight accused, who had filed two different appeals before the High Court challenging their conviction. The State had not filed an appeal under section 417 .of the Criminal Procedure Code, either challeng- 0 ing the acquittal of these eight accused of fue other offences or against the acquittal of the remaining twentytwo acused of all the charges. We are particularly mentionin11 this aspect because if the State had filed such an appeal, the nature of jurisdiction exercised by the High Court will be entirely different.\n\nOn the other hand, it was the brother of one of the deceased, namely, PW 7, who had filed, as a private party, a Criminal Revision E challenging the complete acquittal of the twentytwo accused as well as the acquittal of lhe eight convicted persons of the other charges.\n\nAfter a review of \\he earlier decisions, the extent of the jurisdiction of the High Court in the .matter of interfering in revision F against an order of acquittal has been laid down by this Court in K. Chi1111aswamy Reddy v. State of Andhra Pradesh(') as follows :\n\n\"It is true that it is open to a High Court in revision to set aside an order of acquittal even at tlle instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure' or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.\n\nSub-section ( 4) of s. 439 forbids a High Court from converting a finding o( acquittal into one of conviction and that makes it all the more incumbent on\n\n(I) (1%3] (3) S. C.R. 412.\n\nthe High Court to see that it does not convert the finding of acquittal into one of c0nviction the indirect method\n\nof ordering retrial, when it cannot itself directly . convert a finding of acquittal into a finding of conviction.\n\nThis places limitations on the power of the High Court to get aside a finding of acquittal in revision and it is only in exceptional cases :hat this' power should be exercised. It is not possible to lay down the crileria\n\nfor determining such exceptiOlllal cases which would cover all contingencies. We may however indicate some cases oi this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision.\n\nThese cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the proseculion wished 10 produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cas~ of exceptional nature, where tfhe High Court can justifiably\n\ninterfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of s. 439 ( 4) .\" The above principles have also been reiterated in Ma/Jendra Pratap Singh v; Sarju Singh & Anr.(1), Khetrabasi Sama! etc. v.\n\nState of Orissa etc. (2 ) and Amar Chand Agerwalla v. Shanti Bpse and Another etc. ( 3) .\n\nWe have, therefore, to see whether the order of the High Court setting aside the order of acquittal of the eight convicted accused of certain charges as well as the acquittal of the remaining twentytwo accused of all the charges can be upheld on the above principles.\n\nThe High Court has admittedly not considered the grievance of the eight convicted 11-ccused in their Criminal Appeals Nos. 201 and 202 of 1969. A perusal of the Judgment of the High Court shows that it has mainly dealt with the Criminal Revision filed by the private party. In that context, it as considered the .ma!eial evidence in some detail and has practically .expressed an opmmn against the accused in some respects.\n\nIt has practically . given a finding that all the thirty accused will have.to be convicted under\n\n(I) [196i] (2) S. C. R. 287.\n\n(2) [1970] (!} S. C. R. 880. ·\n\n(3) Criminal Appeals Nos. 101-103 decided on 12-12,1972.\n\nsection 302 read with either section 149 or at any i;.tte section 34.\n\nIt has held that the dying declaration of Ratnababu, Ext. P 15, is admissible even regard.mg the attack on the other deceased, Koteswara Rao. The High Court has also expressed its opinion that Ext. P 15 establishes, on the facts of the present case, that accused Nos. 1 to 4 attacked Koteswara Rao and caused his death. The\n\nHiah Court's view also appears to be that the search or corroboratio;;, made by the Trial Court regarding the evidenci:i of some of ·\n\nthe prosecution witnesses was unnecessao/. Even some of. the convicted accused should have been convicted for more senous offences. More or less on this reasoning, the High Court remanded the entire case for retrial.·\n\n. We are of tlte opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down jn the decisions referred to above.\n\nNotwithstanding the fact that sub-section ( 4) of section 459 does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the Trial Cou.1:t to convict them after a retrial.\n\nThere is no question of lack of jurisdiction in the Trial Court to try the case; nor was any attack made that any evidence has been shut out at the trial. Whether the dying declaration, Ext. P 15, by Ratnababu can be taken into account regarding the attack on Koteswara Rao, is a matter which the Trial Court was entitled to decide one way or the. other. If its view was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Coui:t if the State had filed an appeal against acquittal. Further the mere fact that the learned Trial Judge he_ld that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence has already come on record .. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead. All available evidence has been let in by both the prosecution and the accused.\n\nNor can it be stated that there has been any glaring defect in G the proceure or a manifest eiror on a point of law and consequent!'!' leadmg to a flagrant miscarriage of justice. As mentioned earlier, sub-section ( 4) of section 439 forbids a High Court from converting a finding of acquittal into one of conviction by an indirect. mcthod of ordering retrial when the High Court itself cannot drrectly convert a finding of acquittal into a finding of conyiction. TJz.e .Hi!111 Court: in our opinion, has missed tllese very 1mpo!1ant. lmut:;.ons o~ its power to set aside. ithe finding of\n\nacquittal m revISion which could be done only 10 very exception-\n\nCHAGkNTl KOTAIAH v. G. v. RAO (Vaidialingam, !.) 877\n\nal circumstances. In the case on hand, the High Court was not justified in considering the evidence in sµch detail if it was really going ¢0 order a retrial. Such a detailed consideation of evidence and an expression of opinion aboµt the guilt of the accused, in our opinion, has really loaded the dice agaimt the acclised when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with section 34 or alternatively with section 149 IPC, the Trial Court has not recorded any finding in this regard.\n\nHere again, the High Court's view is erroneous.\n\nWe have already referred to the finding recorded by the Trial Couit that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held constructively liable. It is on that ground that the Trial Court has not found rthe accused constructively guilty.\n\nWe have indicated the reasons, which prompted the High Court to order a retrial.\n\nThe consequence of this will be to put considerable strain on the accused who have already gone through a trial at considerable stress and expense.\n\nAfter going through the .iudgment of the learned Sessions Judge, we cannot certainly say, particularly in view of rthe evidence on record, that either the acquittal of the twentytwo accued or the acquittal of the eight convicted accused of rthe rest oJ' the charges was not justified. At any rate, it may be safely stated that the learned Sessions Judge has taken into account all the relevant circumstances.\n\nIt may be that there are slight mistakes in some of the reasons given by him but the judgment as a whole shows that he has really applied his mind to the various pieces of evidence before passing the order of acquittal in the manner he has done. In the particular circumstances of this case, the interference in revision by the High Court at the instance of the private party was not justified.\n\nThe two appeals filed by the convicted accused, namely, Criminal Anoeals Nos. 201 and 202 of 1969 have not been dealt with by the High Court on merits.\n\nThe appellllJtlts therein .have a right to have those appeals heard and dispossed oJ' by rthe High Court according to Jaw.\n\nIn the result, Criminal Appeal No. 173 of 1970 is allowed . and the judgment and order of the High Court in Criminal Revision Case No. 727 of 1969 a.re set aside and the said Criminal Revision will stand dismissed. Criminal Appeal No. 174 of 1970\n\nis also allowed and in consequence Criminal Appeals Nos. 201 and 202 of 1969 filed by the eight accused are remanded to the High Court for hearing and disposal according to law.\n\nV.P.S.\n\nAppeal partl.v allowed.", "total_entities": 81, "entities": [{"text": "CHAGANTI KOTAIAH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "CHAGANTI KOTAIAH & ORS", "offset_not_found": false}}, {"text": "GOGINENI VENKATESHWARA RAO & ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "GOGINENI VENKATESHWARA RAO & ANR", "offset_not_found": false}}, {"text": "April 3, 1973", "label": "DATE", "start_char": 60, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "April 3, 1973\n\n[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAID!ALINGAM, JJ.]"}}, {"text": "A. ALAGIRISWAMI", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "I. D. DUA", "label": "JUDGE", "start_char": 93, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "I.D. 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Basi Reddy", "label": "OTHER_PERSON", "start_char": 4206, "end_char": 4219, "source": "ner", "metadata": {"in_sentence": "P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals)."}}, {"text": "K. R. Chaudhuri", "label": "OTHER_PERSON", "start_char": 4221, "end_char": 4236, "source": "ner", "metadata": {"in_sentence": "P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals)."}}, {"text": "Gopalakrishna Munhy", "label": "OTHER_PERSON", "start_char": 4238, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals)."}}, {"text": "K. Rajendra Chaudhuri", "label": "LAWYER", "start_char": 4262, "end_char": 4283, "source": "ner", "metadata": {"in_sentence": "P. Basi Reddy, K. R. Chaudhuri, Gopalakrishna Munhy and K. Rajendra Chaudhuri, for the appellant (in both the appeals)."}}, {"text": "T. V. S. Narasimhachari", "label": "LAWYER", "start_char": 4327, "end_char": 4350, "source": "ner", "metadata": {"in_sentence": "T. V. S. Narasimhachari and K. Jayaram, for respoudent No."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 4355, "end_char": 4365, "source": "ner", "metadata": {"in_sentence": "T. V. S. Narasimhachari and K. Jayaram, for respoudent No."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 4413, "end_char": 4425, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, P. Parameshwara Rao, for respondent Ne)."}}, {"text": "P. Parameshwara Rao", "label": "LAWYER", "start_char": 4427, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, P. Parameshwara Rao, for respondent Ne)."}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 4573, "end_char": 4585, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J.\n\nThese two appeals, by special kave, are directed against the judgment and order dated August 25, 1970, of the High Court of Andhra Pradesh in Criminal Revision Case No."}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 4701, "end_char": 4729, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nVAIDIALINGAM, J.\n\nThese two appeals, by special kave, are directed against the judgment and order dated August 25, 1970, of the High Court of Andhra Pradesh in Criminal Revision Case No."}}, {"text": "Gogineni Koteswara Rao", "label": "WITNESS", "start_char": 5016, "end_char": 5038, "source": "ner", "metadata": {"in_sentence": "In connection with the murder of two persons, Gogineni Koteswara Rao 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5682, "source": "ner", "metadata": {"in_sentence": "The 5th accused was convicted under section 302 for causing the death of Ratnababu and was sentenced to undergo imprisonment for life.", "canonical_name": "Ratnab)lbu"}}, {"text": "section 324", "label": "PROVISION", "start_char": 5841, "end_char": 5852, "source": "regex", "metadata": {"statute": null}}, {"text": "section 323", "label": "PROVISION", "start_char": 5969, "end_char": 5980, "source": "regex", "metadata": {"statute": null}}, {"text": "section 324", "label": "PROVISION", "start_char": 6120, "end_char": 6131, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 323 and 324", "label": "PROVISION", "start_char": 6223, "end_char": 6243, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 6347, "end_char": 6358, "source": "regex", "metadata": {"statute": null}}, {"text": "Koteswara Rao", "label": "OTHER_PERSON", "start_char": 6542, "end_char": 6555, "source": "ner", "metadata": {"in_sentence": "The learned Sessions Judge found that none of the accused can be held guilty of the offence of causing the death of Koteswara Rao nor for the injuries sustained by PWs 5 and 6.", "canonical_name": "Koteswara Rao"}}, {"text": "Gogineni Venkateswara Rao", "label": "WITNESS", "start_char": 7076, "end_char": 7101, "source": "ner", "metadata": {"in_sentence": "One Gogineni Venkateswara Rao, who gave evidence.as PW 7 and who was a brother of the deceased, Koteswara Rao, filed Criminal Revision Case No."}}, {"text": "sections 435 and 439", "label": "PROVISION", "start_char": 7234, "end_char": 7254, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 302, 148, 323", "label": "PROVISION", "start_char": 7852, "end_char": 7874, "source": "regex", "metadata": {"statute": null}}, {"text": "Basi Reddy", "label": "OTHER_PERSON", "start_char": 7891, "end_char": 7901, "source": "ner", "metadata": {"in_sentence": "Mr. Basi Reddy, learned counsel for the appellants in both ."}}, {"text": "SUPREME COURT REPOJ.TS\n\n(1973] 3 S.C, R.", "label": "COURT", "start_char": 8354, "end_char": 8394, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPOJ.TS\n\n(1973] 3 S.C, R.\n\ncumstances to interfere under its revisional jurisdiction at the instance of a private party."}}, {"text": "Narasimhachari", "label": "OTHER_PERSON", "start_char": 9101, "end_char": 9115, "source": "ner", "metadata": {"in_sentence": "On the other hand, Mr. Narasimhachari, learned counsel .appearing for PW 7, who filed the Criminal Revision, no doubt attempted to support in full the order of retrial passed by the High Court."}}, {"text": "section 34", "label": "PROVISION", "start_char": 9845, "end_char": 9855, "source": "regex", "metadata": {"statute": null}}, {"text": "section 149", "label": "PROVISION", "start_char": 9879, "end_char": 9890, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Reddy", "label": "OTHER_PERSON", "start_char": 10376, "end_char": 10385, "source": "ner", "metadata": {"in_sentence": "As the State is a. party in the appeals before us, we have heard its counsel, Mr. Ram Reddy, merely to assist us."}}, {"text": "Visadala", "label": "GPE", "start_char": 11646, "end_char": 11654, "source": "ner", "metadata": {"in_sentence": "In the village of Visadala there were two factions, one led by the 3rd accused and the other by PW 23, a brother of Koteswara Rao, one of'the deceased."}}, {"text": "Munsif", "label": "GPE", "start_char": 12397, "end_char": 12403, "source": "ner", "metadata": {"in_sentence": "The 1st accused the acting Village Munsif at the time of the occurrence and his appointment was bitterly resented by the oppo5ite group."}}, {"text": "Ratnababu", "label": "WITNESS", "start_char": 13125, "end_char": 13134, "source": "ner", "metadata": {"in_sentence": "At that time Ratnababu, who was coming along-side the canal, was asked by these witnesses to plug amy leakage near the cross-bund."}}, {"text": "Ratnab)lbu", "label": "OTHER_PERSON", "start_char": 13243, "end_char": 13253, "source": "ner", "metadata": {"in_sentence": "Ratnab)lbu accordingly was trying to Close the leakage when all the thirty accused, who belonged to one faction, came to that place armed w'.th different weapons.", "canonical_name": "Ratnab)lbu"}}, {"text": "Koteswara Rao", "label": "WITNESS", "start_char": 13915, "end_char": 13928, "source": "ner", "metadata": {"in_sentence": "on seeing the accused coming towards his direction, ran to the field of PW 23 where Koteswara Rao with his brother, PW 7, was working."}}, {"text": "Government General Hospital, Guntur", "label": "ORG", "start_char": 14680, "end_char": 14715, "source": "ner", "metadata": {"in_sentence": "Ratnababu was taken to the Government General Hospital, Guntur and, as his condition was very serious, a dying declaration, Ext."}}, {"text": ".August 17, 1968", "label": "DATE", "start_char": 14890, "end_char": 14906, "source": "ner", "metadata": {"in_sentence": "29 A.M. on .August 17, 1968."}}, {"text": "section 312", "label": "PROVISION", "start_char": 15829, "end_char": 15840, "source": "regex", "metadata": {"statute": null}}, {"text": "Appa Rao", "label": "OTHER_PERSON", "start_char": 16322, "end_char": 16330, "source": "ner", "metadata": {"in_sentence": "On their refusal A30 attempted to remove the cross-bund when at the instigation of PW 23 he was stabbed by one Appa Rao and als\"\n\nattacked by PW 23."}}, {"text": "Kuteswara Rao", "label": "OTHER_PERSON", "start_char": 19752, "end_char": 19765, "source": "ner", "metadata": {"in_sentence": "Ultimately the learned Judge held that their evidence cannot be accepted regarding the atltack on Kuteswara Rao.", "canonical_name": "Koteswara Rao"}}, {"text": "sections 323 and 324", "label": "PROVISION", "start_char": 20559, "end_char": 20579, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 20672, "end_char": 20682, "source": "regex", "metadata": {"statute": null}}, {"text": "section 417", "label": "PROVISION", "start_char": 21087, "end_char": 21098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 439", "label": "PROVISION", "start_char": 22481, "end_char": 22487, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 439", "label": "PROVISION", "start_char": 24176, "end_char": 24182, "source": "regex", "metadata": {"statute": null}}, {"text": "12-12,1972", "label": "DATE", "start_char": 25305, "end_char": 25315, "source": "ner", "metadata": {"in_sentence": "101-103 decided on 12-12,1972."}}, {"text": "section 302", "label": "PROVISION", "start_char": 25318, "end_char": 25329, "source": "regex", "metadata": {"statute": null}}, {"text": "section 149", "label": "PROVISION", "start_char": 25347, "end_char": 25358, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 25376, "end_char": 25386, "source": "regex", "metadata": {"statute": null}}, {"text": "section 459", "label": "PROVISION", "start_char": 26351, "end_char": 26362, "source": "regex", "metadata": {"statute": null}}, {"text": "section 439", "label": "PROVISION", "start_char": 27863, "end_char": 27874, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 28833, "end_char": 28843, "source": "regex", "metadata": {"statute": null}}, {"text": "section 149", "label": "PROVISION", "start_char": 28866, "end_char": 28877, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 28878, "end_char": 28881, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1973_3_878_882_EN", "year": 1973, "text": "REGISTRAR OF HIGH COURT OF\n\nMADHYA PRADESH AND ANOTHER\n\nJI.\n\nB. A. NIGAM AND OTHERS April 3, 1973\n\n[0, G. PALEKAR AND A. ALAGIRISWAMI, JJ,]\n\nMadhya Pradesh Civil Courts Act, 1958-Service Rules-Experience a.r Civil Judge, Class.J, necessary qualification for promotion to the poM of Addi. District f.'nd Sessions Judge, and not the seniority.\n\nThe Respondent No. I, who was a Civil Judge in former Madhya Bharat, was, on absorption into Madhya Pradesh Judicial Service, treated a' Civ; l Judge, Class-II. The relevant Service Rules applicable to the Civil Judges recognised Civil Judges as only one Class but the M. P.\n\nCivil Courts Act, 1958, mentioned two classes of Civil Judges namely, Civil Judges Class I and Civil Judges Class\n\nII.\n\nFrom the t; me when the Madhya Pradesh Civil Courts Act, 1958 C8llle into fOrce it was always considered by the High Court that for promotion to the post of Addi. District and Sessions Judge, it was a necessary qualification that the Civil Judge must have sonie experM:nce of working as Civil Judge, Chlss-1. Under the Act, the pecuniary jurisdiction of the Civil Judge, Class I was Rs. 10,000/- while that of Civil Judge.\n\nClass II was Rs. 5,000/-.\n\nIn May 1968, the High Court passed as Reso1utio, o laying down that the seledtion of a Civil Judge, Class-II, as a Civil Judge Class I shall be deemed '\" promotion and that being so,. only the cases of Civil Judges, Class-I, shall be considered for promotion :ls Addl. Drntrict and Sessions Judges in order of their seniority. The respondent was not found fit for promotion to the post of Civil Judge, Class-I in the successive selections.\n\nHe was finally 'found fit in 1968.\n\nIn a writ petition before the M. P. High Court, the Respondent No. 1 contended that the date of the seniority should count from the date of appointment to the post of Civil Judge Cfass-IJ and not from the date of promotion to the post of Civil Judge, Class-I. He also contended that the High Court Resolutio:t> of May 3, 1968, was illegal as there was no proviion in the Service Rules for classifying Civil Judges as Class I or Ciass II and the power to create various classes of services\n\n\\V'&S vested ir.. the Government, and not in the High Court. The 11. P.\n\nHigh Court allowed the Writ Petition.\n\nAllowing the State's appeal by certificate,\n\nHELD : ( 1) On perusal of the High Court file regarding the selection of Class JI Civil Judges as Class I Civil Judges, it is clear that the decisions \\Vere bona fide a;'nd on merits.\n\nThe Respondent No. 1 had no claim to Class I post before 1968, when for the first time he was found fit.\n\nOnce it is found that experience as Civil Judge Class I is a necessary qualification, the seniority in Class II service is of no consequence.\n\n( 2) While it is true that the Service Rules do not provide for any distinction within Civil Judges, the difference in the pecuniary jurisdici; _, n cannot be ignored. The Resolution of the High Court of May 1968 should not be interpreted literally.\n\nThe resolution does not create a new class of Ci, il Judges called Class I Civil Judges but merely lays down the c:ualification or standard of fitness for higher promotion.\n\nThere is\n\nREGISTRAR M.P. !UGH COURT v. B. A. N!GAM 879 (Alagiriswami, J.) no justification for re-opening cases closed for more than ten years at the instance of an officer whose record of service was not a shining one: compared to those who were selected earlier. [880A, 881G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1972.\n\nAppeal by certifica'le from the Judgment and order dated August 8, 1971 of the Madhya Pradesh :ltigh Court at Jabalpur in Misc. Petition No. 537 of 1969.\n\nI. N. Shroff, for the Appellants.\n\nM. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.\n\nDadachanji, 0. C. Mathur & Ravinder Narain, for respondent No. 1\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.-In the Judicial Service of Madhya Pradesh there are three classes of officers, Civil Judges, Additional District\n\nand Sessions Judges and District Judges but under the Madhya Pradesh Civil Courts Act, 1958 there are four classes of Civil Courts, the Coutt of the District Judge, the Court of the Addi.\n\nDistrict Judge, the Court of the Civil Judge (Class I) and the Court of the Civil Judge (Class II). The respondent No. I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat. After Madhya Bharat became part of. Madhya Pradesh he was absorbed as a Civil Judge and placed for purposes of seniority at No. 189. From the time when the Madhya ?radesh Civil Court Act, 1958 came into force some period of service of a Civil Judge during which he exercised powers of Civil Judge, Class I, however, small, was considered a necessary qualification for promotion to the post of Additional District and Sessions Judge.\n\nOn or about May 3, 1968, by a resolution of the High Court it was laid down that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases ol Civil Judges, Class I, shall be considered for promotion as Additional District and Sessions Judges in order of their seniority. It must be made clear at the outset that according to the Service Rules there is only one class of Civil Judges and not t\\vo classes of Civil Judges (Class I) and Civil Judges (Class\n\nII).\n\nThe fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered.\n\nWe have\n\ncrutinised them carefully and can see no reason to doubt the bona fide nature of the decisions therein made. The High Court has also taken the view that though the junior members in the cadre of Civil Judges had often been allowed to exercise the powers of Civil Judge, Class I, without considering at that time the respondent's claim and then those junior members had been preferred for promotion on the ground that they had exercised such powers, and such preference was open to attack as being violative ol the fundamental rights of the respondent, they could not assist him on that ground because even if his .claims for exercising the powers of Civil Judge, Class I had been considered at the appropriate time, he would not have been found fit for the purpose for the reason earlier mentioned.\n\nWhile it is not impossible that if the respondell'l's case had been compared with that of others before the 3rd May, 1966 he might have been found fit for being posted as a Civil Judge, Class I, it is very improbable and we, therefore, agree with this conclusion or the High Court. Finally, on 30-11-1968 the respondent was found fit to be posted as a Civil Judge, Class I and he filed the petitioo, out of which this appeal arises, for consideration of his name for being promoted as an Additional District and Sessions Judge over the heads of all the people who had been earlier found to have better qualifications for being posted as Civil Judges, Class I in preference to him.\n\nThat petition having been allowed by the High Court his appeal has been filed by certificate by the Registrar of the High Court of Madhya Pradesh and the State against the judgment of that High Court.\n\nIn addition to the point which we have earlier mentioned and agreed with the High Court, his only other contention was that in the list of Civil Judges he was senior to all of them and as there was no provision in the service rules for classifying Civil Judges as Class I or Class Il and the power to create various classes of services was one which vested with the Government and not with the Hih Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely. The High Court took the view that as for some years past, a principle for selection had been introduced that before a Civil Judge was promoted to the post of an Additional Districit and Sessions Judge, it was essential that he should have exercised the powers of Civil Judge, Class I, tor a period, however short and that principle had a rational relation to the suitability of Civil Judges for promotion to posts of Additional District and Sessions Judges and the respondent No. I could not legitimately complain, as he did not have that qualification, and he could not be selected for promotion only on the basis of seniority. They also took the view that sinee the respondent No. I had not acquired the qualification required for promotion,\n\nREGISTRAR M.P. HIGH COURT v. B. A. N!GAM 881 (Alagiriswami, I.) !tis claim for such promotion should be regarded as having been considered and rejected by implication till November 30, 1968 when he was allowed to exercise the powers of Civil Judge, Class I.\n\nHaving held rightly, according to us, that till November 30, 1968 the respondent No. I was not qualified to be considered for promotion as an Additional District and Sessions Judge, the High Court curiously enough issued a writ of mandamus directing that the respondent's claim for promotion should be considered in relation to the claims of !tis juniors and if he was found fit he should be allowed the consequential benefits including fixing of seniority in the cadre of Additional District and Sessions Judges.\n\nIn mentioning about the juniors o.f the respondent No. I the learned Judges were referring to the original seniority in the cadre of Civil Judges,\n\nOnce it is found.that experience as Civil Judge, Class I, at least for a short period, is a necessary qualification for promotion as Additional District and Sessions Judge and that such a require ment has a rational relation to the que!ltion at issue, it would b surprising to hold that a man, who again and again had beei found unfit to be posted as Civil Judge, Class I, in comparison with others, who , were his juniors in service, his claim for promotion as Additional District and Sessions Judge should be decided not on the basis of the date on whlch he was found fit to exercise the powers of Civil Judge, Class I, but on the basis of the date of his entry into service. Out of the 41 people whom the respon dent No. I had made respondents to his petition, 10 people were found fit in 1962 and one in 1963. Then we have 3 others whose claims were considered on 3-5-66 alongwith that of the respondent No. I and found superior to his. There are 8 others whose claims were compared to the respondent's on 12-8-66 and found to be superior to his. Seventeen others, whose claims were compared to the respondent's on 17-4-67 were found to be superior to the respondent's and two were found superior to the respondent on 7-11-67. It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the other who were found superior to him on a number of earlier occasions. While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is onlv upto Rs. 5,000 and that of. Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1963 should not be interoreted literally.\n\nIf it is done in its proper background it would be aooreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as\n\nSIJPREME COIJRT REPORTS\n\n[1973] 3 S.C.R.\n\nClass I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some lime should considred as a qualification for promotion as Additional Distr~ and Sessions Judges. We have already Pointed out that the High Court has rigbtly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judges.\n\nWe 2re firmly of opinion that in the face of these circumS'lances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found. better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would. be a mockery of all canons of fair play and justice. Indeed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified.\n\nAt any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service to say the least, is not shining one. We see no merits in his claim. We, therefore, allow the appeal and set aside the judgment of the Madhya Pradesh High Court. There will, however, be no order as to costs.\n\nS.B.W.\n\nAppeal aNowed.", "total_entities": 43, "entities": [{"text": "REGISTRAR OF HIGH COURT OF\n\nMADHYA PRADESH AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "REGISTRAR OF HIGH COURT OF MADHYA PRADESH AND ANOTHER", "offset_not_found": false}}, {"text": "B. A. NIGAM AND OTHERS", "label": "RESPONDENT", "start_char": 61, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "B. A. NIGAM AND OTHERS", "offset_not_found": false}}, {"text": "April 3, 1973", "label": "DATE", "start_char": 84, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "B. A. NIGAM AND OTHERS April 3, 1973\n\n[0, G. PALEKAR AND A. ALAGIRISWAMI, JJ,]\n\nMadhya Pradesh Civil Courts Act, 1958-Service Rules-Experience a.r Civil Judge, Class."}}, {"text": "G. PALEKAR", "label": "JUDGE", "start_char": 103, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "D.G. PALEKAR*", "offset_not_found": false}}, {"text": "A. ALAGIRISWAMI, JJ", "label": "JUDGE", "start_char": 118, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "A. ALAGIRISWAMI", "offset_not_found": false}}, {"text": "Madhya Pradesh Civil Courts Act, 1958", "label": "STATUTE", "start_char": 141, "end_char": 178, "source": "regex", "metadata": {}}, {"text": "Civil Courts Act, 1958", "label": "STATUTE", "start_char": 619, "end_char": 641, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh Civil Courts Act, 1958", "label": "STATUTE", "start_char": 763, "end_char": 800, "source": "regex", "metadata": {}}, {"text": "M. P. High Court", "label": "COURT", "start_char": 1697, "end_char": 1713, "source": "ner", "metadata": {"in_sentence": "In a writ petition before the M. P. High Court, the Respondent No."}}, {"text": "High Court Resolutio:t> of May 3, 1968", "label": "COURT", "start_char": 1954, "end_char": 1992, "source": "ner", "metadata": {"in_sentence": "1 contended that the date of the seniority should count from the date of appointment to the post of Civil Judge Cfass-IJ and not from the date of promotion to the post of Civil Judge, Class-I. He also contended that the High Court Resolutio:t> of May 3, 1968, was illegal as there was no proviion in the Service Rules for classifying Civil Judges as Class I or Ciass II and the power to create various classes of services\n\n\\V'&S vested ir.. the Government, and not in the High Court."}}, {"text": "While it is true that the Service Rules", "label": "STATUTE", "start_char": 2753, "end_char": 2792, "source": "regex", "metadata": {}}, {"text": "High Court of May 1968", "label": "COURT", "start_char": 2938, "end_char": 2960, "source": "ner", "metadata": {"in_sentence": "The Resolution of the High Court of May 1968 should not be interpreted literally."}}, {"text": "I. N. Shroff", "label": "OTHER_PERSON", "start_char": 3669, "end_char": 3681, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the Appellants."}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 3704, "end_char": 3716, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.\n\nDadachanji, 0."}}, {"text": "Anthoney G. Menezes", "label": "LAWYER", "start_char": 3718, "end_char": 3737, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.\n\nDadachanji, 0."}}, {"text": "P. G. Bhartari", "label": "LAWYER", "start_char": 3739, "end_char": 3753, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.\n\nDadachanji, 0."}}, {"text": "I. B.\n\nDadachanji", "label": "LAWYER", "start_char": 3755, "end_char": 3772, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.\n\nDadachanji, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 3777, "end_char": 3786, "source": "ner", "metadata": {"in_sentence": "C. Mathur & Ravinder Narain, for respondent No."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3789, "end_char": 3804, "source": "ner", "metadata": {"in_sentence": "C. Mathur & Ravinder Narain, for respondent No."}}, {"text": "ALAGIRISWAMI", "label": "JUDGE", "start_char": 3872, "end_char": 3884, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\nALAGIRISWAMI, J.-In the Judicial Service of Madhya Pradesh there are three classes of officers, Civil Judges, Additional District\n\nand Sessions Judges and District Judges but under the Madhya Pradesh Civil Courts Act, 1958 there are four classes of Civil Courts, the Coutt of the District Judge, the Court of the Addi."}}, {"text": "and Sessions Judges and District Judges but under the Madhya Pradesh Civil Courts Act, 1958", "label": "STATUTE", "start_char": 4003, "end_char": 4094, "source": "regex", "metadata": {}}, {"text": "B. A. Nigam", "label": "RESPONDENT", "start_char": 4319, "end_char": 4330, "source": "ner", "metadata": {"in_sentence": "I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat.", "canonical_name": "B. A. NIGAM AND OTHERS"}}, {"text": "20-lG-1956 in", "label": "DATE", "start_char": 4368, "end_char": 4381, "source": "ner", "metadata": {"in_sentence": "I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat."}}, {"text": "Madhya Bharat", "label": "GPE", "start_char": 4382, "end_char": 4395, "source": "ner", "metadata": {"in_sentence": "I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat."}}, {"text": "Civil Court Act, 1958", "label": "STATUTE", "start_char": 4568, "end_char": 4589, "source": "regex", "metadata": {}}, {"text": "May 3, 1968", "label": "DATE", "start_char": 4843, "end_char": 4854, "source": "ner", "metadata": {"in_sentence": "On or about May 3, 1968, by a resolution of the High Court it was laid down that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases ol Civil Judges, Class I, shall be considered for promotion as Additional District and Sessions Judges in order of their seniority."}}, {"text": "May 3, 1966", "label": "DATE", "start_char": 5499, "end_char": 5510, "source": "ner", "metadata": {"in_sentence": "The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered."}}, {"text": "August 12, 1966", "label": "DATE", "start_char": 5512, "end_char": 5527, "source": "ner", "metadata": {"in_sentence": "The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered."}}, {"text": "April 17, 1967, November 6, 1967", "label": "DATE", "start_char": 5529, "end_char": 5561, "source": "ner", "metadata": {"in_sentence": "The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered."}}, {"text": "April 18, 1968", "label": "DATE", "start_char": 5566, "end_char": 5580, "source": "ner", "metadata": {"in_sentence": "The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered."}}, {"text": "High Court of Madhya P'radesh", "label": "COURT", "start_char": 5810, "end_char": 5839, "source": "ner", "metadata": {"in_sentence": "The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C, R.\n\npoS'led as Class I Civil Judges have been considered."}}, {"text": "3rd May, 1966", "label": "DATE", "start_char": 6943, "end_char": 6956, "source": "ner", "metadata": {"in_sentence": "While it is not impossible that if the respondell'l's case had been compared with that of others before the 3rd May, 1966 he might have been found fit for being posted as a Civil Judge, Class I, it is very improbable and we, therefore, agree with this conclusion or the High Court."}}, {"text": "30-11-1968", "label": "DATE", "start_char": 7129, "end_char": 7139, "source": "ner", "metadata": {"in_sentence": "Finally, on 30-11-1968 the respondent was found fit to be posted as a Civil Judge, Class I and he filed the petitioo, out of which this appeal arises, for consideration of his name for being promoted as an Additional District and Sessions Judge over the heads of all the people who had been earlier found to have better qualifications for being posted as Civil Judges, Class I in preference to him."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 7634, "end_char": 7662, "source": "ner", "metadata": {"in_sentence": "That petition having been allowed by the High Court his appeal has been filed by certificate by the Registrar of the High Court of Madhya Pradesh and the State against the judgment of that High Court."}}, {"text": "High Court of May 3, 1968", "label": "COURT", "start_char": 8155, "end_char": 8180, "source": "ner", "metadata": {"in_sentence": "In addition to the point which we have earlier mentioned and agreed with the High Court, his only other contention was that in the list of Civil Judges he was senior to all of them and as there was no provision in the service rules for classifying Civil Judges as Class I or Class Il and the power to create various classes of services was one which vested with the Government and not with the Hih Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely."}}, {"text": "3-5-66", "label": "DATE", "start_char": 10745, "end_char": 10751, "source": "ner", "metadata": {"in_sentence": "Then we have 3 others whose claims were considered on 3-5-66 alongwith that of the respondent No."}}, {"text": "12-8-66", "label": "DATE", "start_char": 10887, "end_char": 10894, "source": "ner", "metadata": {"in_sentence": "There are 8 others whose claims were compared to the respondent's on 12-8-66 and found to be superior to his."}}, {"text": "17-4-67", "label": "DATE", "start_char": 10996, "end_char": 11003, "source": "ner", "metadata": {"in_sentence": "Seventeen others, whose claims were compared to the respondent's on 17-4-67 were found to be superior to the respondent's and two were found superior to the respondent on 7-11-67."}}, {"text": "7-11-67", "label": "DATE", "start_char": 11099, "end_char": 11106, "source": "ner", "metadata": {"in_sentence": "Seventeen others, whose claims were compared to the respondent's on 17-4-67 were found to be superior to the respondent's and two were found superior to the respondent on 7-11-67."}}, {"text": "30-11-68", "label": "DATE", "start_char": 11293, "end_char": 11301, "source": "ner", "metadata": {"in_sentence": "It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the other who were found superior to him on a number of earlier occasions."}}, {"text": "While it is true that the Service Rules", "label": "STATUTE", "start_char": 11402, "end_char": 11441, "source": "regex", "metadata": {}}, {"text": "High Court of May 1963", "label": "COURT", "start_char": 11712, "end_char": 11734, "source": "ner", "metadata": {"in_sentence": "The resolution of the High Court of May 1963 should not be interoreted literally."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 13818, "end_char": 13843, "source": "ner", "metadata": {"in_sentence": "We, therefore, allow the appeal and set aside the judgment of the Madhya Pradesh High Court."}}]}
{"document_id": "1973_3_883_888_EN", "year": 1973, "text": "' _.\n\n~ \"\n\n~~----------------~\n\n883'\"\n\nTHE DEPUTY COMMISSIONER OF AGRICULTURAL\n\nINCOME TAX AND SALES TAX, CENTRAL ZONE,\n\nERNAKULAM . v .\n\nM/S. KOTAK & CO., !JOMBAY, ETC. ETC.\n\nApril 3, 1973\n\n(K, S. HEGDE AND H. R. KHANNA, JJ.]\n\nCentral Sr.ies Tax Act 1956--S. 5(2) read with Art. 286 of the Consti-· uuion.\n\nA.essee Company sold to bu, ver ilr the course of import-- JVhether an inter-State sale. ~·.\n\nThe respondent was engaged in the supply of foreign cotton to texti!emilis. in South India on the basisof import.Jic.cnces issued to the mills-.\n\n3uthori!~Og import of foreign cotton by them.. The firm supplied cotton to the mills on the basis of specific written contracts. One of the co.rrditicns in the -contract is that _the goods imported should not under any cir:\"Umstances, be diverted fiom its d.:termined destination, i.e. the mills. _ Secor.dly~ the relative. shipping documnts were issued by theforeign seHer in the names of the respective mills and not in the name- Of the assessee-firm.\n\nAgain;_ the import licences issued to 'the mills. authorise the mills to import the goods; and o:n the reverse of. these licences is stated that the goods for the import of which the lice:nces. \\vere grante-d should be the property of the licensees at the time of clearance through the customs. Still further, th~ _letters of authorisation isstied by the Gover, ament authorising the assessee-.firm to import the cotton show that the assessce had to do it purely as an agent . of thelicensces hoth at the time of th.e clearance through the customs and subsequent th{!reto. The firm entered into a contract with M/s. faha- laxmi Cotton Mills on 20-3-1964. According to the\" respondent, by the contract entered into with the mills, the quantity of cotton agreed to be supp; ied to the mills was pecified as also its quality and places from where it \"\"' to be imported. The price was fixed on C.l.F. Cochirr. term. Payment was to be made by the mills to the firm against the. document. The other conditio; r.tS governing the contract were laid down on the reverse of the contract form, the most important clauses in ihc contiact \\Vere that the C!Ontract was C.I.F. in nature notwithstand- ing anything to the contrary mentioned i; n the contract. . The price was subject to variation depending . upon the import duty, . freight rate,. iiisurancc premium and exchange rate. Jt was further provided by th.e l\\:IiHs that the contract_ was irrevocable and that any differences betwee; n the parties had to be resolved through arbitration etc._ The question_ was \\Vhether thi! sales made to the mills affeCted in this Country occasioned the import. The Sales Tax Officer, as wellas the Appellate Assistant' CoirJmissioner, held that the sales in question were intra-state sales and' therefore, the assessee was liable to tax. ·\n\nOn appeal, the Sales Tax Tribunal held that the assessee's case fell\" within s. 5(2) of the Central Sales Tax Act, read with Art. 286 of the Constitution and -the Hi.!dl Court on revision, affirmed the decision ofthe Tribunal.·· Before this Court it was contended by the appellant that the. sales were intra-state sales . and as Mb, the assessee was liable totax:.\n\nDsmissing th.e_ ae?ls,_ ·. . ·\n\n . HeLD : The present case falls within the. rule laid down. by . this Court in K. G. Khosla & Co. v. Deputy Commissioner of Co1nmerciat\n\nTaxes, (1966] 3 S.C.R. 352, wherein it was held that the saies in question occas; oned the import and as such it was exempt under s. S (2) of the Central Sales Tax Act, 1956 which says, \"A sale or purchase -Of goods shall be deemed to take place in the course of the import of goods into the territory of India only if the sale or purchase either occasions such import or is eJfected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.\" f887GJ\n\nCoffee Board, Bangalore v. Joint CorrlJriercial Tax Officer, Madras <1mi An<>ther (1970] 3 S.C.R. 147, referred to aod distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1889 to 1891 of 1970.\n\nAppeals by certificates from the judgment and order dated c October 28, 1969 of the Kerala High Court at Emakulam in T.R.C. Nos. 40, 41 and 42 of 1968.\n\nCivil Appeals Nos. 1892 to 1896 of 1970\n\nAppeals by certificates from the judgment and order dated October 28, 1969 of the Kerala High Court at Emakulam in o T.R.C. Nos. 43, 44, 45, 47 and 48 of 1968.\n\nCivil Appe.al No. 1897 of 1970.\n\nAppeals by certificates from the judgment and order dated October 28, 1969 of the Kerala High Court at Ernakulam in 'T.R.C. No. 46 of 1968.\n\nCivil Appeals Nos. 1898 to 1900 of 1970.\n\nAppeals by certificates from the judgment and order dated 'October 28, 1969 of the Kerala High Court at Ernakulam in\n\nT.R.C. Nos. 52, 53 and 54 of 1968.\n\nV. A. Sayed Mohammed and A. G. Pudissery, for the appel- F Jan ts (in all the appeals).\n\nG. B. Pai, PC. Bhartari, 0. C. Mathur and Ravinder Narain, for the respondent (in C.A. Nos. 1889-1891 and. 1897/70).\n\nT. A. Ramachandran and K. /ayaram, for the respondent (in C.A. Nos. 1892-1896/70). 'G Ram Phal Bansal, S. P. Pande and Ganpat Rai, for the respondent (in C.A. Nos. 1898-1900/70).\n\nThe Judgment of the Court was delivered by\n\nHEGDE J.-In these appeals by certificate a common question of la~ arises for decision and that question is whether \"?e H sales effected by the respondent with wh!ch we are concerneil m :these cases occasioned import of Egyptian celtton. The Sales\n\nDY. COMMR. AGR!C. INCOME TAX v. KOTAK & co. (Hegdc, J.) 885\n\nTax Officer as well as the Appellate Assistant Commissioner, rejecting the contention of the assessee came to the conclusion that the sales in question were intra-state sales. But, on appeal, the Sales Tax Tribunal held that the assessee's case fall within S. 5(2) of the Central Sales Tax Act 1'956 read with Article 286 of the Constitution. The High Court on revision affirmed the decision of the Tribunal. In support of its conclusion the High Court observed thus :\n\n\"One of the conditions in the contract is that the goods imported should not under any circumstances, be diverted from its determined destination, i.e., the mills.\n\nSecondly, the relative shipping documents were issued by the foreign seller in the names of the respective mills and not in the name of the assessee-firm.\n\nAgain, the import licences issued to the mills auth01ise the mills to import the goods; and on the reverse of these licences is stated that the goods for the import of which the licences were granted\n\n>hould be the property of the licensees at the time of clearance through the customs.\n\nStill further, the letters of authorisation issued by the Government authorising the assessec-firm to import the cotton show that the assessee had to do it purely as an agent of the licensees and the imported goods would be the property of the licensees both at the time: of the clearance through the customs and subsequent thereto.\"\n\nThe material facts of the case are fully set out in the judgment of the Appellate Tribunal and are as follows :\n\n\"The facts of the case here are not in dispute and the only point that has to be considered here is as to whether the sales are in the course of import. The assessee firm submitted before the Sales Tax Officer a detailed note in regard to the procedure in this matter. According to them the firm is engaged in the supply of foreign cO'tton to textile mills among other places in South India on the basis of the import licences issued to the mills authorising import of foreign cotton by them. The details in regard to the procedure contained in the nO'te submitted by the firm are found from page 37 onwards in the assessment files. It is stated that the firm supplies cotton to the mills on the basis of specific written contracts. Under the import control regulations, import licences are necessary for import of foreign cotton and they are issued to only actual iusers like the mills. The appellant firm and the similar concerns are not given import licences. The mills make enquiries with the firm as regards the quality of cotton they required, the period during which they would be supplied, the price and other particulars and on getting thee enquiries the appellant firm contacts the foreign suppliers in Egypt, Sudan or America for acertaining whether they could supply the cotton required. l! the offers received are found acceptable the appellant firm enters into contract wrth the various mills concerned and im!Uediately thereafter accept the offer made by the foreign suppliers. The suppl} of such foreign cotton to M/s. Mahalakshmi Textiles Mills Ltd .. one of the mills to whom supply was made by the firm is detailed in the said note and it is stated that the supply made to the other mills also .are under similar circumstances.\n\nAccording to the appellant, .after receiving enquiries from the mills the firm con-· tacts the American Suppliers in New York. The foreign supplie!· agreed to supply the quantfty at the price agreed upon. lhereatter the firm entered into a contract with the mills dated 20-3-1964. that the import licence issued in favour of the mills was made availabae to the firm for utilisation of the contract that the letter authorrty issued auhorising the firm to import cotton was also issued. that the bill of lading obtained by the foreign supplier on shipment of the goods was also obtained by the firm and the cotton is thu' sent on to India. The contention of the appellant is that under the contract entered into with the mills the quantity oE cotton agreed to be supplied to the mills is specified as also its quality and places from where it was to be imported.\n\nThe price was fixed on C.I.F. Cochin tenns. Payment was to be made by the mills to the firm against the document.\n\nThe other conditions governing the contract are laid down on the reverse of the contract form.\n\nThe most important clauses in the contract re that the contract was C.I. F. in nature, notwithstanding anything to the contrary mentioned in the contract, the price was subject to variation depending upon the import duty, freight rate, insurance premium and exchange rate, that it was specifically provided that the sale was subject to import licence to be provided by the mills. that the contract was irrevocable and that any difference between the parties had to be resolved through the arbitration machinery provided in the contract itself, that under the Import control regulations, the importer is the mill. the auhorisation and the import licence are issued to the mills only, that even under the letter of authority although the firm was au1horised to ill}port the goods the mills remained the importer and they were liable as importer. that the particulars necessary for inclusion in the bill of lading are furnished by the Jinn to the foreign suppliers before the shipment is effected, that after the goods were shipped at the foreign Port the bill of Jading is forwarded along with the invoice and other connected documents of title through their Bank to India. that these documents are received \"ty the firm after due payment of the value to the Agent Bank. that after receiving 1his document. information is given to the mill when they made the payment in accordance with the contract, that thereafter the goods wer~ cleared and delivered to the mills by clearing agents at Cochin :and forwarded to the mills\".\n\nDY. COMMR. AGRIC. INCOME TAX v. KOTAK & co. (Hegde, J.) 887\n\nIn another portion of its Order the tribunal stated that \"the goods could not in any circums•tances be diverted from its determined destination, once it is shipped from the foreign country.\"\n\nThe facts set out by the Tribunal, quoted above, are stated by the Tribunal as admitted facts.\n\nHence we cannot go into the correctness of those facts.\n\nDr. Sayed Mohammed, the learned counsel for the department con•tended tthat the observation of the High Court that \"one of the conditions in the contract is that 1he goods imported should not in any circumstance be diverted from its determined destination, i.e., the mills\" is incorrect as there is no such term in the contract entered into betwe.en the respondents and the mills. This submission, though in a technical sense may be correct, has really no substance because, as could seen from the letter of authority issued by the Government that, one of the conditioos of the lel!ter of authority was, to quote the words of that letter 'The person or firm in whose favour it has been issued, will act purely as an agent of the licensee and tire\n\ngoods imported will be the property of the licence-holder both at the time of clearance through the Customs and subsequent thereto.\n\nThe licence-holder will have to ensure that the goods on importation will be delivered to him and shall not be disposed of otherwise.\n\nThe licensee shall not cause or permit the holder of the letter of authority to dispose of the goods.\"\n\nThis clause must be read as a part of the contract entered into between the respondents and the mills. Even ii this clause had not been there, there would have been no difficulty in coming to the conclusion that the respondents were precluded from selling the goods to anybody other than the mills to whom the users import licence had been granted.\n\nFrom the facts set out abcwe it is obvious that the respondents could not have sold the goods to anybody other than the licence-holders.\n\nFrom the facts set out a\\J!Jve it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khos/a & Co.\n\nv. Deputy Commissioner of Commercial Taxes( 1).\n\nThe appellant therein, imported certain goods from Belgium in order to fulfil contracts with certain buyers in India. The question arose whether the sales effected in this country occasioned the import.\n\nThis Court came to the conclusion that the sales in question occasioned the import and as such it is exempt under Sec. 5 (2) of the Central Sales Tax Act, 1956, which says•• \"A sale or purchase of goods shall be deemed to take place in the course of the im; mrt of the goods into the territory of India only if 1he sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the cutoms frontiers of India\".\n\n(1) [1966] J -S. C. R. 352\n\nDr. Sayed Mohammed tried to distinguish Khosla's case from the pr!:Sfnt case on the plea that in Khosla's case there. was only one sale whereas in the present case there were two sales.\n\nWe are unable to accept this contention as correct. From the facts set out above, it is clear that the facts of this case are similar to those found in Khosla's case.\n\nReliance was placed by Dr. Sayed Mohammed on the decision of this Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras and Another(').\n\nThe facts of that case briefly stated, are as follows :\n\nThe Coffee Board auctioned certain quantities of coffee f0r the purpose of being sold in foreign countries. The purchasers of those lots were required to expol't that quantity of coffee to one or the other of the foreign countries mentioned in the sale notice. They were precluded ; from selling the same iuside India.\n\nThe question arose whether the purchases made by them occasioned export.\n\nThis Court came to the conclusion that the purchases in question were purchases for the purpose of export and the same did not occasion export. This Court did not differ from the view taken in Khosla's case.\n\nOn the other hand it distinguished that decision.\n\nHence the rule laid down in the Coffee Board's case is inapplicable to the present case.\n\nFor the reasons mentioned above these appeals fail and they are dismissed with costs.\n\nThere are four sets of respondents.\n\nHence four hearing fees-One set of hearing fee for each set of respondents.\n\ns.c.\n\nAppeals dismissed.\n\n(!) [1970] 3 S. C. R. 147.", "total_entities": 44, "entities": [{"text": "THE DEPUTY COMMISSIONER OF AGRICULTURAL\n\nINCOME TAX AND SALES TAX, CENTRAL ZONE,\n\nERNAKULAM", "label": "PETITIONER", "start_char": 39, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "THE DEPUTY COMMISSIONER OF AGRICULTURAL INCOME TAX AND SALES TAX, CENTRAL ZONE, ERNAKULAM", "offset_not_found": false}}, {"text": "S. HEGDE", "label": "JUDGE", "start_char": 195, "end_char": 203, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 208, "end_char": 225, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Tax Act 1956", "label": "STATUTE", "start_char": 243, "end_char": 255, "source": "regex", "metadata": {}}, {"text": "S. 5(2)", "label": "PROVISION", "start_char": 257, "end_char": 264, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1956", "statute": "Tax Act 1956"}}, {"text": "Art. 286", "label": "PROVISION", "start_char": 275, "end_char": 283, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1956", "statute": "Tax Act 1956"}}, {"text": "M/s. faha- laxmi Cotton Mills", "label": "ORG", "start_char": 1614, "end_char": 1643, "source": "ner", "metadata": {"in_sentence": "The firm entered into a contract with M/s. faha- laxmi Cotton Mills on 20-3-1964."}}, {"text": "20-3-1964", "label": "DATE", "start_char": 1647, "end_char": 1656, "source": "ner", "metadata": {"in_sentence": "The firm entered into a contract with M/s. faha- laxmi Cotton Mills on 20-3-1964."}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 2901, "end_char": 2908, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 2916, "end_char": 2937, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 286", "label": "PROVISION", "start_char": 2949, "end_char": 2957, "source": "regex", "metadata": {"statute": null}}, {"text": "(1966] 3 S.C.R. 352", "label": "CASE_CITATION", "start_char": 3367, "end_char": 3386, "source": "regex", "metadata": {}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 3506, "end_char": 3533, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 3665, "end_char": 3670, "source": "ner", "metadata": {"in_sentence": "this Court in K. G. Khosla & Co. v. Deputy Commissioner of Co1nmerciat\n\nTaxes, (1966] 3 S.C.R. 352, wherein it was held that the saies in question occas; oned the import and as such it was exempt under s. S (2) of the Central Sales Tax Act, 1956 which says, \"A sale or purchase -Of goods shall be deemed to take place in the course of the import of goods into the territory of India only if the sale or purchase either occasions such import or is eJfected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.\""}}, {"text": "(1970] 3 S.C.R. 147", "label": "CASE_CITATION", "start_char": 3946, "end_char": 3965, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3999, "end_char": 4027, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "V. A. Sayed Mohammed", "label": "OTHER_PERSON", "start_char": 4796, "end_char": 4816, "source": "ner", "metadata": {"in_sentence": "V. A. Sayed Mohammed and A. G. Pudissery, for the appel- F Jan ts (in all the appeals)."}}, {"text": "A. G. Pudissery", "label": "OTHER_PERSON", "start_char": 4821, "end_char": 4836, "source": "ner", "metadata": {"in_sentence": "V. A. Sayed Mohammed and A. G. Pudissery, for the appel- F Jan ts (in all the appeals)."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 4885, "end_char": 4894, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, PC."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 4913, "end_char": 4922, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondent (in C.A. Nos."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4927, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondent (in C.A. Nos."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 5003, "end_char": 5021, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and K. /ayaram, for the respondent (in C.A. Nos."}}, {"text": "K. /ayaram", "label": "LAWYER", "start_char": 5026, "end_char": 5036, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and K. /ayaram, for the respondent (in C.A. Nos."}}, {"text": "G Ram Phal Bansal", "label": "LAWYER", "start_char": 5087, "end_char": 5104, "source": "ner", "metadata": {"in_sentence": "G Ram Phal Bansal, S. P. Pande and Ganpat Rai, for the respondent (in C.A. Nos."}}, {"text": "S. P. Pande", "label": "LAWYER", "start_char": 5106, "end_char": 5117, "source": "ner", "metadata": {"in_sentence": "G Ram Phal Bansal, S. P. Pande and Ganpat Rai, for the respondent (in C.A. Nos."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 5122, "end_char": 5132, "source": "ner", "metadata": {"in_sentence": "G Ram Phal Bansal, S. P. Pande and Ganpat Rai, for the respondent (in C.A. Nos."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 5227, "end_char": 5232, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE J.-In these appeals by certificate a common question of la~ arises for decision and that question is whether \"?"}}, {"text": "S. 5(2)", "label": "PROVISION", "start_char": 5793, "end_char": 5800, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 5808, "end_char": 5829, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 286", "label": "PROVISION", "start_char": 5846, "end_char": 5857, "source": "regex", "metadata": {"statute": null}}, {"text": "South India", "label": "GPE", "start_char": 7442, "end_char": 7453, "source": "ner", "metadata": {"in_sentence": "According to them the firm is engaged in the supply of foreign cO'tton to textile mills among other places in South India on the basis of the import licences issued to the mills authorising import of foreign cotton by them."}}, {"text": "Egypt", "label": "GPE", "start_char": 8276, "end_char": 8281, "source": "ner", "metadata": {"in_sentence": "The mills make enquiries with the firm as regards the quality of cotton they required, the period during which they would be supplied, the price and other particulars and on getting thee enquiries the appellant firm contacts the foreign suppliers in Egypt, Sudan or America for acertaining whether they could supply the cotton required."}}, {"text": "Sudan", "label": "GPE", "start_char": 8283, "end_char": 8288, "source": "ner", "metadata": {"in_sentence": "The mills make enquiries with the firm as regards the quality of cotton they required, the period during which they would be supplied, the price and other particulars and on getting thee enquiries the appellant firm contacts the foreign suppliers in Egypt, Sudan or America for acertaining whether they could supply the cotton required."}}, {"text": "America", "label": "GPE", "start_char": 8292, "end_char": 8299, "source": "ner", "metadata": {"in_sentence": "The mills make enquiries with the firm as regards the quality of cotton they required, the period during which they would be supplied, the price and other particulars and on getting thee enquiries the appellant firm contacts the foreign suppliers in Egypt, Sudan or America for acertaining whether they could supply the cotton required."}}, {"text": "Mahalakshmi Textiles Mills Ltd", "label": "ORG", "start_char": 8598, "end_char": 8628, "source": "ner", "metadata": {"in_sentence": "The suppl} of such foreign cotton to M/s. Mahalakshmi Textiles Mills Ltd .. one of the mills to whom supply was made by the firm is detailed in the said note and it is stated that the supply made to the other mills also .are under similar circumstances."}}, {"text": "New York", "label": "GPE", "start_char": 8928, "end_char": 8936, "source": "ner", "metadata": {"in_sentence": "According to the appellant, .after receiving enquiries from the mills the firm con-· tacts the American Suppliers in New York."}}, {"text": "C.I.F. Cochin", "label": "ORG", "start_char": 9696, "end_char": 9709, "source": "ner", "metadata": {"in_sentence": "The price was fixed on C.I.F. Cochin tenns."}}, {"text": "Cochin", "label": "GPE", "start_char": 11370, "end_char": 11376, "source": "ner", "metadata": {"in_sentence": "information is given to the mill when they made the payment in accordance with the contract, that thereafter the goods wer~ cleared and delivered to the mills by clearing agents at Cochin :and forwarded to the mills\"."}}, {"text": "Sayed Mohammed", "label": "OTHER_PERSON", "start_char": 11818, "end_char": 11832, "source": "ner", "metadata": {"in_sentence": "Dr. Sayed Mohammed, the learned counsel for the department con•tended tthat the observation of the High Court that \"one of the conditions in the contract is that 1he goods imported should not in any circumstance be diverted from its determined destination, i.e., the mills\" is incorrect as there is no such term in the contract entered into betwe.en the respondents and the mills."}}, {"text": "Belgium", "label": "GPE", "start_char": 13657, "end_char": 13664, "source": "ner", "metadata": {"in_sentence": "The appellant therein, imported certain goods from Belgium in order to fulfil contracts with certain buyers in India."}}, {"text": "Sec. 5", "label": "PROVISION", "start_char": 13924, "end_char": 13930, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 13942, "end_char": 13969, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Khosla", "label": "OTHER_PERSON", "start_char": 14366, "end_char": 14372, "source": "ner", "metadata": {"in_sentence": "(1) [1966] J -S. C. R. 352\n\nDr. Sayed Mohammed tried to distinguish Khosla's case from the pr!:Sfnt case on the plea that in Khosla's case there."}}, {"text": "[1970] 3 S. C. R. 147", "label": "CASE_CITATION", "start_char": 15869, "end_char": 15890, "source": "regex", "metadata": {}}]}
{"document_id": "1973_3_889_892_EN", "year": 1973, "text": "COMMISSIONER OF INCOME TAX, WEST BENGAL,\n\nCALCUTTA\n\nM/S. HANTAPARA TEA CO., LTD., CALCUTTA\n\nApril 3, 1973\n\n[K. S. HEGDE AND H. R. KHANNA. JJ.]\n\nJnco111e-te1x-Assessee's agricultural produce used in assessee's bUsiness-Mc.rket value of p1oduce if deductible expenditure for purposes of i11con1etµx.\n\nFor the assessment year 1961-62 the assessee-a tea company, was assessed to income-tax under r. 24 of the Income-tax Rules on its profits as per its Profit and Loss Account with c.ertai:a modifications.\n\nIn the expenses debited in its accounts only the expenses for 1aising thtch. bamboo, fuel etc .. grown in the tea estate and u.ed 1n the tea business \\vere included.\n\nThe assessee contended that .the mark.et value of the agriC'ultural produce grown in the tea estate a:nd utilised by the assessec in the tea business, which had been assessed at lOOo/o to Ctgricultural income-tax, must he taken into considration in the computation of tile allo\\vable expenditure.\n\nThe Appel1ate Assistant Commissioner, the, Tribunal and the High Court, on reference, held in favour of the\n\nass, zsse~.\n\nDi .. n1issing the appeal to this Vourt,\n\nHELD : In the matter of computing the agricultural income it was not necessary that the agricultural produce should be sold and profit of gain made from such sale, before it is considered as agricultural income.\n\nIt is sufficient if the assessee gets any benefit from the produce, and \\Vhat is to be taxed is the markt value of the benefit received by the assl.!Ssce and not the costs incurred by the assessee for raisitig the agricultural produce in. question. If the assessee has to pay agricultural i.ncom.e-tax on the market value of the agricltural produce raised in hi-. est?te and used in his tea business, it stands to reason, that while determining the deductible expenditure incurred for the purpose of his business, the same rule, namely, the market value of the produce used for the tea business should be taken into consideration, because, in terms of money, what he expended was the market value of the produce used in conneclion with his business.\n\nThe fact that he used his own goods is immaterial.\n\n[891F-H]\n\nDooc.rs Tea Co. Ltd. v. Conunissioner of Agricultural\" Incon1e-tax, West Bengal, [1962] XLIV I.T.R. 6, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 79 of 1970.\n\nAppeal by special leave from the judgment and order dated February 26, 1969 of the Calcutta High Court in Income->tax Reference No. 37 of 1965.\n\nH N. D. Karkhanis and S. P. Nayar, for the appellant.\n\nV. S. Desai, T. A. Ramachandran and D. N. Gupta, for the respondent. 9-L797Sap, CI/73\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J.-This is an appeal by special leave.\n\nIt relates to !he assessment of the assessee for the; assessment year 1961-62, for which the relevant previous year was the calendar year 1960.\n\nThe assessee is a Tea Company, Upto the assessment year \\950-51 the Agricultural Income-tax Officer was accepting th~ computation of the total income from the growth, manufacture and sale of tea made by the Income Tax Officer and taking 60 per\n\ncent of the income dete1mined as the agricu)tural income under Rule 24 of the Income-tax Rules.\n\nOn and from the assessment year 1951-52 the agricultural income-tax authorities !tarted talcing\n\nthe market value of !hatch, bamboo and fuel etc. grown in the tea estate and used in the tea business as 100 per cent aiJ:icultural income and aHer deducting the cost of cultivation thereof, taxed the whole cJ the resulting income on the basis of the market value of those articles.\n\nSo, from that assessment year the computation of the total income from tea by the Income-tax authorities was varied by the Agricultural Income-Tax Officer and the assessee had to pay on a total income which was more than the income disclosed in the Profit and Loss Account.\n\nFor the assessment year 1961-62, the assessee company was assessed to Income-tax under Rule 34 of the Incometax Rules, on Its proms as per its Prom ana Loss Accounr witn certain mocftfications, by the Income-tax Officer. In the expenses debited in Its accounts, only the expenses for raising thatch, bomboo, fuel etc. grown in the tea estate and useq in the tea business were included.\n\nBefore the Appellate Assistant Commissioner, the asse; see raised the contention that the market value of agricultural produce grown in the tea estate and utilised biy the assessee in the 19a business, which had been assessed at 100 per cent to agriculimal income-tax, must be talcen into consideration in lhe computation ot allowable expenditure. In support of that contention reliance was placed on the decision of this Court in the case of Dooars Tea Co. Ltd. v. Commissioner of Agricultural Income-tax, West Bengal('). The Appellate Assistant Commissioner accepted that contention and directed the Income-tax Officer to modify the assessment accordingly. In appeal by the Revenue the finding of the Appellate Assistant Commissioner w.s accepted by the Tribunal.\n\nThereafter at lhe instance of the Revenue the following question was re{erred to the High Court for its opinion :\n\n\"Whether, on the fact& and in the circumstances of lhe case, the Tribunal wa~ right in holding that the\n\n(I) [1962] XLlV I. T. R. 601.\n\nC.I.T. v. HANTAPARA TEA CO, LTD. (Hegde, J.) 891\n\nA decision of the Supreme Court in Dooars Tea Co. Ltd. ( 1962) 44 I.T.R. 6, was applicable to the computation\n\nc~ the assessee's total income under the provisions of the Indian Income-tax Act, 1972 and in directing the Income-tax Officer to make a fresh assessment according: to law in the light of the aforesaid decision of the B Supreme Court.\"\n\nThe High Court answered that question in the aflinnativc :ind in fa\\'our of the asses see.\n\nHence this appeal by lhe Revenue.\n\n!t i, true that, 1he questi0n formulated by 1.hc Tribunu! does not accur\"tely bring out the real contention between the parties.\n\nThe real con!entioa between the parties is whether the assessee is entitled to. the market value of the agrici.:1turl produce grown by it but utilised for the purpose of tea business.\n\nDooars Tea Co's. case related to the levy of agricultural income-tax.\n\nTi1e .facts of that case are as follows :\n\nThe assessee, who is a tea grower, grew in its estate hJmboo, thatched grass, fuel timber etc. and utilised tlle same for tea business.\n\nAt the time of the assessee's assessment under the Bengal 'Agricultural Income-tax Act the assessee contended that only the cost of growing the produce in question should be taken into consideration and r.ot its market value as the same was used for the purpose of assessee's tea business.\n\nThis contention was rejected by the Revenue and this Court upheld the decision of the Revenue.\n\nThis Court came to the conclusion that the agricultural income should be computed on the basis of the market value of bamboos, thatched grass and fuel timber etc. in accordance with rule 4(2) of the Bengal Agricultural Income-tax Rules.\n\nThe ratio of that decision is that in the matter of computing the agricultural income it was not necessary that 'the agricultural produce should be sold and profit or gain made from such sale before it is considered as agricultural income.\n\nIt is sufficient if the assessee gets any benefit from the same, and what is to be taxed is the market value of the benefit received by the assessee and not !he costs incurred by the assessee for raising the agricultural produce in question. lf the assessee has to pay agricultural income-tax on the market value of the agricuitural produce raised in his estate and used in his tea business it stands to reason that while determining the deductible\n\nexpenditure incurred for the purpos<: of his business, the same rule viz. the market value of the produce used for the tea business should be taken into consideration, because in terms of money what he expended was the market value of the produce used in connection with his business. The fact that he used his own goods is immaterial.\n\nNow, tµrning back to the question referred to the High Court, even though the question is not properly framed, the question is sufficiently wide to decide the real point in issue. The later part of the question covers the point that calls for decision. In that view there is no need either to reframe the question or to direct th.e Tribunal tosubmit a separate statement of case.\n\nFor the reasons mentioned above this appeal fails and the same is dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 17, "entities": [{"text": "COMMISSIONER OF INCOME TAX, WEST BENGAL,\n\nCALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, WEST BENGAL, CALCUTTA", "offset_not_found": false}}, {"text": "HANTAPARA TEA CO., LTD., CALCUTTA", "label": "RESPONDENT", "start_char": 57, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "M/S. HANTAPARA TEA CO., LTD., CALCUTTA", "offset_not_found": false}}, {"text": "April 3, 1973", "label": "DATE", "start_char": 92, "end_char": 105, "source": "ner", "metadata": {"in_sentence": "CALCUTTA\n\nApril 3, 1973\n\n[K. S. HEGDE AND H. R. KHANNA."}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 108, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 124, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2275, "end_char": 2303, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2419, "end_char": 2438, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated February 26, 1969 of the Calcutta High Court in Income->tax Reference No."}}, {"text": "H N. D. Karkhanis", "label": "OTHER_PERSON", "start_char": 2481, "end_char": 2498, "source": "ner", "metadata": {"in_sentence": "H N. D. Karkhanis and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2503, "end_char": 2514, "source": "ner", "metadata": {"in_sentence": "H N. D. Karkhanis and S. P. Nayar, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 2536, "end_char": 2547, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, T. A. Ramachandran and D. N. Gupta, for the respondent."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 2549, "end_char": 2567, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, T. A. Ramachandran and D. N. Gupta, for the respondent."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 2572, "end_char": 2583, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, T. A. Ramachandran and D. N. Gupta, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 2667, "end_char": 2672, "source": "ner", "metadata": {"in_sentence": "9-L797Sap, CI/73\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J.-This is an appeal by special leave."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 5330, "end_char": 5343, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 891\n\nA decision of the Supreme Court in Dooars Tea Co. Ltd. ( 1962) 44 I.T.R. 6, was applicable to the computation\n\nc~ the assessee's total income under the provisions of the Indian Income-tax Act, 1972 and in directing the Income-tax Officer to make a fresh assessment according: to law in the light of the aforesaid decision of the B Supreme Court.\""}}, {"text": "Indian Income-tax Act, 1972", "label": "STATUTE", "start_char": 5482, "end_char": 5509, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dooars Tea Co", "label": "ORG", "start_char": 6102, "end_char": 6115, "source": "ner", "metadata": {"in_sentence": "Dooars Tea Co's."}}, {"text": "Agricultural Income-tax Act", "label": "STATUTE", "start_char": 6412, "end_char": 6439, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1973_3_893_896_EN", "year": 1973, "text": "RAMPRAKASH v.\n\nMOHAMMAD ALI KHAN (DEAD) THROUGH L.R'S April 4, 1973\n\n(J. M. SHELAT, ACTING C.J.,\n\nS. N. DWIVEDI AND\n\nY. V. CHANDRACHUD, JJ.J\n\nU. P. Zamindari AbolitiOfl and Land Reforms Act 19SO, s. 18(1}- .Land held by an Intermediary as an Intermediary's grove 011 the date\n\nimmediately preceding the date of vesting deemed to be settled by th• State Government with such intermediary-Eorlkr right• are extinguith. ed-Res Judicat<>-No res judicata when issue in earlier decision w\"\" different.\n\nIn February 1946, H lea<:ed his share in a grove iJi Uttar Pradesh to the appellant and sold to him the trees standing thereon. Similarly A, a widow, leased her share and that of her minor children in the grove and sold the standing trees to the appellant. Subseqllllntly the proprietary right of some other co-sharers in the grove was sold to one M. The appellal>t instituted a suit sometime in 1946 against M and others for injunction and alternatively for possession over the grove.\n\nSometime in 1947 M and others also instiu.ted a rival suit for caiu:ellation of the aforesaid leases on the contention that under s. 246 of the U. P. Tenancy Ac:t the executiOID of a lease by some of the cosharers •only, was invalid. The trial coort dismissed the appellanfs suit and >decreed M's suit. The lower appellate court granted a decree in fuvour\n\nof the appellant for joint possession over the share of H and A in the grove land. It was held that the lea•e executed by A ao guardian of the minors was invalid.\n\nM filed two appeals in the Allahabad High Court. Duritog the peodency of the appeals M died and his legal representatives were brought on record. The appeal filed by M in his own suit was dismissed by a Single Judge of the High Court. The appeal filed by M in .the appellant's suit was heard by another single Judge, and was allowed with respect to the lease of grove land and dis missed as regards the sale of the trees, It was held that ofter the commencement of the U. P. Zamindari Abolition and Land Reforms Act the appellant had no subsisting interest in the land. The appellant was granted special leave to appeal to this Court.\n\nDismissing the appeal,\n\nHELD : (i) As the grove in dispute was an intermediary's grove M and others who were intermediaries on the relevant date becJame its bhumidars. 1be lessee of an intermediary's grove land is not an intermediary because he does not fall within the cletinitiOID of the word\n\n'.intermeiary', _No othr provision of the Act gives him any kind of mterest ID the rntermedrary's grove land. 1be appellant got no right in :the grove land in dispute.\n\n[895EJ\n\nf!ana Sheo Ambar Singh v, Allal!Gbad Bank Ltd, Allahabad, {1962] 2 S.C.R. 441 and lamshed lahan Begam and others v. Lakhan Lal and others, [1970] 2 S.C.R, 566, relied on.\n\n(ii) Tiie dismissat of M's other appeal by the High Coun coo1d not operate as rer judicata in the present appeal because the questions at issue in the two appeals were different. [8950]\n\nC!v1L APPELLATE JURISDICTION : Civil Appeal No. 1860 of 1967.\n\nAppeal by special leave from the judgment and order dated Augmt 8, 1967 of the Allahabad High Court in Special Appeal\n\n]\\;~_ ::350 of 1953.\n\nIC. P. Gupta, for the appellant.\n\nJ.P. Gopal and Sobhag Mal Jain, for respondents Nos. 1 to 7.\n\nThe Judgment of the Court was delivered by\n\nDw1vEDI, J.-In this appeal the bone of contention is a certain zamindari grove. The grove belonged to a number of co-sharers.\n\nBut in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali. On Femruary 16, 1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Praknsh.\n\nHe let out his share in the grove land and sold his share in the standing trees to Ram Prakash. On the same day another similar document was executed in favour of the appellant by Smt.\n\nAbbj'.lsi, widow of Sakhawat Ali.\n\nShe executed the document for self and as guardian of her minor son, s and daughters.\n\nThe document was in respect of her share and her childrens share.\n\nSubsequent to the execution of those documents the proprietary right of some other co-sharers (presumay some successors of Sakhawat Ali) in the grove land was sold to one Mohammad Ali.\n\nThe ppellant instiluted a suit some time in 1946 against Mohammad Ali and others for injunc<tion and alternatively for possession over the grove.\n\nSome time in 194 7 Mohammad Ali and others also ; nstituted a rival suit for cancellation of the aforesaid leases.\n\nTheir ase was that the leases were invalid as section 246 of the U.P. Tenancy Act prohibited the execution of a lease by some of 1he co-sharers only. The two suits were tried together. The trial\n\ncourt dismissed the suit of the appellant and decreed the other suit. Two appeals were preferred against the decree of the trial court.\n\nThe lower appellate court granted a decree in favour of the appellant for joint possession over the share of Hafiz Ali .and Smt. Abbasi in the grove land. It was held that the lease executed by Smt. Abbasi as guardian of the minors was invalid.\n\nSo no decree was passed in respect of their shares. The other appeal was disposed of on the same terms.\n\nMohammad Ali then filed two second appeals in the Allahabad High Court. They were numbered 2350 and 2351 of 1953. Second appeal No. 2350 of 1953 was filed against the decree passed in the appellant's suit; second arpeal Xo. 2351 of 1953 was filed against the decree in his own suit.\n\nDuring the pendency of the appeals, Mohammad Ali died and his legal representatives were brought on record.\n\nSecond appeal No. 2351 of 1953 was dismissed by a learned Judge of the lUgh Court . Second Appeal No. 2350 of 1953 came up for\n\nRAM PRAKASH V. M.A. KHAN (Dwivedi, !.) 895\n\nhearing before another learned Judge.\n\nThe appeal was allowed with respect to the lease of grove land and' dismissed ss regards the sale 0£ trees.\n\nHence this appeal b!Y special leave.\n\nWe agree with the learned Judge that after the commencement of the U.P. Zamindari Abolition and Land Refonns Act (hereinafter referred to as the Act), the appellant has no subsisting interest in the grove land.\n\nSection l!f(l) of the Act provides that all lands in possession or held or deemed to be held by an intermediary as an intermediary's grove on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary.\n\nSection 2( 12) of the Act defines an intem1ediary as \"a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh, permanent tenure-holder of an estate or part thereof.\" Section 2 ( 13) defines \"intermediary's grove\" as grove land held or occupied by an intermediary as such.\n\nAs the grove in dispute was an intermediary's grove Mohammad Ali and others, who were intennediaries on the relevant date, became its bhumidars. The lessee of an intermediary's grove land is not an inermediary because he does not fall within the definition of the word \"intermediary\".\n\nNi;> other provision of the Act gives him any kind of interest in the intermediary's grove land. Accord'\n\ni.j)gly, the appellant gets no right in the grove land in dispute.\n\nThe scheme of the Act is to createl new rights .in place of old rights. The old rights are dead and gone after the commencement of the Act. (vide Rana Shea Ambar Singh v. Allahabad Bank Ltd., Allahabad(1) and Jamshed Jahan Begam and others v.\n\nLakhan Lal and others(2 ).\n\nThe decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of s. 246 of the U.P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in fact not considered in that appeal.\n\nIn that appeal the material\n\n(1) [1962] 2 S. C. R. 441.\n\n(2) [1970] 2 S. C. R. 566.\n\nissue was whether the le.ases were void. The argument on 'behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is thalt assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act.\n\nAs the grove is land covered by the Act; it will be governed by the provisions of the Act and not by the provisions of the Transfer of Property Act.\n\nWe have already held that the appellant's lessee rights came to an end on die commencement of the Act.\n\nAnd the Act conferred on him no new rights. In the result, there is no force in this appeal. It is dismissed with costs.\n\nG.C.\n\nAppeal dismissed.", "total_entities": 32, "entities": [{"text": "RAMPRAKASH", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "Ram Praknsh", "offset_not_found": false}}, {"text": "MOHAMMAD ALI KHAN (DEAD) THROUGH L.R", "label": "RESPONDENT", "start_char": 15, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "MOHAMMAD ALI KHAN (DEAD) THROUGH L.RS", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 73, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT*", "offset_not_found": false}}, {"text": "S. N. DWIVEDI", "label": "JUDGE", "start_char": 98, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "S.N. DWIVEDI", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD, JJ", "label": "JUDGE", "start_char": 117, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "Zamindari AbolitiOfl and Land Reforms Act", "label": "STATUTE", "start_char": 148, "end_char": 189, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 1532, "end_char": 1552, "source": "ner", "metadata": {"in_sentence": "M filed two appeals in the Allahabad High Court."}}, {"text": "1962] 2 S.C.R. 441", "label": "CASE_CITATION", "start_char": 2673, "end_char": 2691, "source": "regex", "metadata": {}}, {"text": "IC. P. Gupta", "label": "LAWYER", "start_char": 3177, "end_char": 3189, "source": "ner", "metadata": {"in_sentence": "IC."}}, {"text": "J.P. Gopal", "label": "LAWYER", "start_char": 3211, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "J.P. Gopal and Sobhag Mal Jain, for respondents Nos."}}, {"text": "Sobhag Mal Jain", "label": "LAWYER", "start_char": 3226, "end_char": 3241, "source": "ner", "metadata": {"in_sentence": "J.P. Gopal and Sobhag Mal Jain, for respondents Nos."}}, {"text": "Dw1vEDI", "label": "JUDGE", "start_char": 3317, "end_char": 3324, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDw1vEDI, J.-In this appeal the bone of contention is a certain zamindari grove."}}, {"text": "Sakhawat Ali", "label": "OTHER_PERSON", "start_char": 3491, "end_char": 3503, "source": "ner", "metadata": {"in_sentence": "But in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali."}}, {"text": "Hafiz Ali", "label": "PETITIONER", "start_char": 3512, "end_char": 3521, "source": "ner", "metadata": {"in_sentence": "But in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali.", "canonical_name": "Hafiz Ali"}}, {"text": "Femruary 16, 1946", "label": "DATE", "start_char": 3526, "end_char": 3543, "source": "ner", "metadata": {"in_sentence": "On Femruary 16, 1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Praknsh."}}, {"text": "Hafiz Ali", "label": "PETITIONER", "start_char": 3544, "end_char": 3553, "source": "ner", "metadata": {"in_sentence": "On Femruary 16, 1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Praknsh.", "canonical_name": "Hafiz Ali"}}, {"text": "Ram Praknsh", "label": "PETITIONER", "start_char": 3630, "end_char": 3641, "source": "ner", "metadata": {"in_sentence": "On Femruary 16, 1946 Hafiz Ali executed a composite document of lease and sale in favour of the appellant, Ram Praknsh.", "canonical_name": "Ram Praknsh"}}, {"text": "Ram Prakash", "label": "PETITIONER", "start_char": 3727, "end_char": 3738, "source": "ner", "metadata": {"in_sentence": "He let out his share in the grove land and sold his share in the standing trees to Ram Prakash.", "canonical_name": "Ram Praknsh"}}, {"text": "Abbj'.lsi", "label": "OTHER_PERSON", "start_char": 3830, "end_char": 3839, "source": "ner", "metadata": {"in_sentence": "Abbj'.lsi, widow of Sakhawat Ali."}}, {"text": "Mohammad Ali", "label": "PETITIONER", "start_char": 4190, "end_char": 4202, "source": "ner", "metadata": {"in_sentence": "Subsequent to the execution of those documents the proprietary right of some other co-sharers (presumay some successors of Sakhawat Ali) in the grove land was sold to one Mohammad Ali.", "canonical_name": "Mohammad Ali"}}, {"text": "Mohammad Ali", "label": "PETITIONER", "start_char": 4371, "end_char": 4383, "source": "ner", "metadata": {"in_sentence": "Some time in 194 7 Mohammad Ali and others also ; nstituted a rival suit for cancellation of the aforesaid leases.", "canonical_name": "Mohammad Ali"}}, {"text": "section 246", "label": "PROVISION", "start_char": 4514, "end_char": 4525, "source": "regex", "metadata": {"statute": null}}, {"text": "Abbasi", "label": "OTHER_PERSON", "start_char": 4930, "end_char": 4936, "source": "ner", "metadata": {"in_sentence": "Abbasi in the grove land."}}, {"text": "Zamindari Abolition and Land Refonns Act", "label": "STATUTE", "start_char": 5975, "end_char": 6015, "source": "regex", "metadata": {}}, {"text": "Section 2( 12)", "label": "PROVISION", "start_char": 6387, "end_char": 6401, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Refonns Act", "statute": "Zamindari Abolition and Land Refonns Act"}}, {"text": "Avadh", "label": "GPE", "start_char": 6519, "end_char": 6524, "source": "ner", "metadata": {"in_sentence": "Section 2( 12) of the Act defines an intem1ediary as \"a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh, permanent tenure-holder of an estate or part thereof.\""}}, {"text": "Section 2", "label": "PROVISION", "start_char": 6581, "end_char": 6590, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Refonns Act", "statute": "Zamindari Abolition and Land Refonns Act"}}, {"text": "s. 246", "label": "PROVISION", "start_char": 7741, "end_char": 7747, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962] 2 S. C. R. 441", "label": "CASE_CITATION", "start_char": 7995, "end_char": 8016, "source": "regex", "metadata": {}}, {"text": "[1970] 2 S. C. R. 566", "label": "CASE_CITATION", "start_char": 8023, "end_char": 8044, "source": "regex", "metadata": {}}, {"text": "Mohammad Ali", "label": "RESPONDENT", "start_char": 8115, "end_char": 8127, "source": "ner", "metadata": {"in_sentence": "The argument on 'behalf of Mohammad Ali and others in second appeal No.", "canonical_name": "Mohammad Ali"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8433, "end_char": 8457, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1973_3_897_901_EN", "year": 1973, "text": "CONTROLLER OF ESTATES DUTY,\n\nANDHRA PRADESH HYDERABAD v.\n\nKANCHARLA KESA YA RAO\n\nApril 4; 1973\n\n[K, S. HEGDE AND H. R. KHANNA, JJ.]\n\nEstate Du~ Act, 1953, Ss. 7 and 24-Partition-Allomen! to , widw bl meonbr of a Hindu undivided family property for life t11ne in lieu of her share-If liable to estate duty on her death,\n\nA partition was effected among the members of a Hindu undivided family by a registered partition deed.\n\nUnder that deed, the widow of one of the members, who had a right to inherit her husband's share in the non-agricultural properties as well as the right to be maintained from out of the family income, gave up those rights, and i; n lieu thereof, the other members of the family allottc-<l to her share 25 acres of land to be enjoyed by her during her life time.\n\nOn her death. her interest in the land ceased and passed on to the other members of the former joint family as provided in the partition deed.\n\nTherefore, the authorities under the Estate Duty Act, 1953, proceeded to levy estate duty under s. 7 of the Ac~ on the property allotted to her.\n\nOn the questicm whether the arrangement in the partition dead could be considered a 'disposition' within the meaning of s. 24 of the Act, and therefore the value of the land allotted was exompt from estate duty, the High Court, on reference, held in favour of the assessee.\n\nAllowing the appeal too this Court,\n\nHELD : A partition of a Hindu undivided family is a mere adjustment of rights.\n\nIt cannot be considered to be a tra'tlSfer and therefore, cannot be a disposition within the meaning of s. 24 of the Act.\n\nHence, the case fell under s. 7 of the Act.\n\n[900C]\n\nCo1nmissioner of Jncometax, Gujarat v. Keshevlal Lallubhai Patel. 55 I.T.R. 637 and Commissioner of Gift Tax, Madras v. N. S. Gettj Cherti<r, 82 I.T.R. 599; 605, followed.\n\nCIVIL APPELLATE JURISDICTION. ; Civil Appeal No. 107 of 1970.\n\nAppeal by certificate from the judgment and order dated December 24, 1968 of the Andhra Pradesh High Court at Hyderabad in Case Referred No. 28 of 1965.\n\nG. C. Sharma, S. P. Nayar and R. N. Sachthey, for the appellant.\n\nG. S. Rama Rao, for the respondent.\n\nThe Judgment of the Coun was_ delivered 1Jy\n\nHEGDE, J.-This is an appeal by certificate. It is directed againsit the decision of the Andhra Pradesh High Court in a reference under section 64(1) of the Esta1e Duty Act, 1953 (to\n\nbe hereinafter referred to as the 'Act').\n\nThe question of law referred to the High Court was :\n\n\"Whether the value of 25 acres of wet land is exempt from levy of estate duty under section 24 of Estate Duty Act, 1953 ?\"\n\nThe material facts of the case, as can be gathered from the case stated are these - One Venkataramayya died in April, 1940 leaving behind him his widow and two sons, who constituted a Hindu undivided family.\n\nOne of his sons, namely, Chandrasekhara Rao died in the year 1941, leaving behind him six minor sons and a widow.\n\nSubsequently, a partition was effected between the member:; oi the family on 16.6-1943 by a registered partition deed.\n\nUnder that deed Kotamma, the widow of Venkataramayya, who had a right to inherit her husband's share in the non-agricultural properties as well as the righ.t to be maintain~ from out of the family income, gave up her right both in the non-agricultural properties, except the right to reside in a portion of the family house as well as her right to be maintained out of the family income. At the sanle time the other members of th11 family allotted to her 25 acres of wet !and, which she was to enjoy during her life-time and the same was to devolve after her death on the Other members of the former family as per the stipulations in the partition deed.\n\nShe was not entitled to alienate the property allotted to her share.\n\nKotamma died on April 9, 1958.\n\nThe authorities under the 'Act' proceeded to levy estate duty on the value of the property allotted to Kotamma under the partition deed dat<:d 16-6-1943 under .sectipn 7 of the Act. The accountable per5ons contended that the estate in question is not liable to pay estate duty as it came within the scope of section 24 of the Act. The departmental\n\nauthorities, including the Tribunal,' rejec11ed that contention.\n\nThereafter, at the instance of the Revenue, the question set out above was referred to the High Court.\n\nThe High Court has answered that question in the affirmative and in favour of the assessee.\n\nThe Revenue has come up in appeal to this Court.\n\nThe only question for consideration is whether the facts of the present case fall within the scope of section 24 of the Act.\n\nSection 7 (1) of the Act says :\n\n\"7 (1) Interests ceasing on death.--Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall bl! deemed to pass on the deceased' s death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular,\n\na coparcenary interest in the joint family property of a\n\nHindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law.\"\n\nThe remaining portions of that section are not relevant for our present purposes.\n\nThere is no dispute that when Kotamma died her interest in B the wet land ceased and that it passed on to the other members of the former joint family as provided in the partition deed.\n\nHence prima-facie the prese:it case comes under section 7 of the Act. Only queslion is whether the arrangement made under the partition deed can be considered as 'disposition' within the meaning of that expression in Section 24 or the Act. Now let us turn to c section 24(1). That section reads :\n\n\"24(1) Property reverting to disponu.-Where by a disposition of any property an interest is conferred on ; my person o'!her than the disponer for the life of such person or determinable on his death, the remainder being conferred upon the disponer absolutely, and such D person enters into possession of the interest and thenceforward retains possession of it, then, on the death of such person, the property shall not be deemed to pass by reason only of its reverter to the disponer in his lifetime.\"\n\nThe remaining portion of this section is also not necegsary for our E present uurposes.\n\nIt was urged on behalf of the Revenue by Mr. Sharma, its learned counsel, that section 24 is wholly inapplicable to the facts of the present case. He contended that on the facts of this case there was no 'disposition'. He further contended that under the teirns of the partition deed, the property did not revert wholly F to the disponers. According to him it partly reverted to the disponers and partly to the widow of Chandrasekhara Rao, who cannot be considered as one or the disponers.\n\nMr. Rama Rao, learned counsel for the assessee, on the other hand, contended that undet the partition cleed, there was a 'disposition' in favour of Kotarnma and on her death the property G reverted back to all the disponers. As we are in agreement with the contention of Mr. Sharma on the first point, namely, that there was no' 'disposition' under the partition deed, we do not think it necessary to go into other contention.\n\nWe are unable to accept the contention of Mr. Rama Rao that H under the partition deed there was 'disposition'. According to him, the true nature of the transanctions entered into under the partition deed were that Kotamma gave up all her rights in the family properties, including her right to maintenance unilaterally, but at\n\nthe same time the qther memijlrs of the family voluntarily gave .her 25 acres of wet land to be enjoyed by her during her life-time.\n\nFor this contention of his he placed reliance on the terms of the partition deed. In a matter like this we are not merely to look the form in which the deed is drawn up. We are to find out the true natµre of the transaction.\n\nFroni the facts set out above it is absolutely clear that under the partition deed Kotarruna gave up her rights to the extent mentioned earlier and in lieu thereof the other members of the family allotted to her share 25 acres of wet land to be enjoyed by her durin, g her life-time. It was an adjustment o.f rights. The contention of Mr. Rama Rao that there was 'disposHion' under the partition deed-the contention which has appealed to the High Court-appears to us to be an erroneous one. A partition is not a transfer in a strict sense. It is an adjustment of the rights of the various members of the family.\n\nIn Commissioner of Income-Tax, Gujarat v. Keshavlal Lallubhai, Patel(') this Court quoted with the approval a passage from the decision of the Madras High Court in Gutta Radhakrishnayya v.\n\nGutta Sarasamma. (2 ) That passage reads thus :\n\n\"Partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severality.\n\nEach one of the sharers had an antecedent title and_, therefore, no conveyance is involved in the process, as a conferment on a new title is not necessary.\"\n\nThis Court had to consider the meaning of the word 'disposition' occurring in section 2(xxiv) of the Gift Tax Act.\n\nThat section defined the expression 'transfer of property' thus :\n\n\"2. (xxiv) \"trans.fer of property\" means any disposition, conveyance, assistant, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes---\n\n(a)\n\n(b)\n\n(c)\n\nthe creation of a trust in property;\n\nthe grant or creation of any 'lease, mortgage, charge, easement, licence, power, partnership interest in property;\n\nthe exercise of a power of appointment of property vested in ; my person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and\n\n{ d) any transaction entered into by any person with H intent thereby to diminish directly or indirectly\n\n( I) SS I. T. R. 637.\n\n(2) I. L. R. [19SI] Mad. 007.\n\nthe value of his own property and to increase the value of the property of any other person.\"\n\nThe question for consideration in that case was, inter-a/ia, whether a partition is a 'disposition'. Dealing with this question this Court. in Commissioner of Gift Tax, Madras v. M. S. Getti Chattiar(1) observed :\n\n\"A reading of this section clearly goes to show that the words \"disposition\", \"conveyance\", \"assignment\", \"settlement\", \"delivery\" and \"paymene• are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used.\n\nWords in the section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling oat the meaning of the words in a section, one must take into consideration the setting in which those tenns are used and 1he purpose that they are intended to serve. If so understood, it is clear that 1he word \"disposition\", in the context, means giving away or giving up by a person of something which was his own, \"conveyance\" means trans.fer of ownership, \"assignment\" means the transfer of the claim, right or property to another, \"settlement\" means settling the property, right or claim--<:onveyance or disposition of propeny for the benefit of another, \"delivery\" contemplated therein is the delivery of one's property to another for no consideration and \"payment\" implies gift of money by someone to-another. We do not think that a partition in a Hindu undivided family can be considered either as \"disposition\" or \"conveyance'' or \"assignmen.1.\" or \"settlement\" or \"delivery\" or \"payment\" or \"alienation\" within meaning of those words in section 2(XXIV).\"\n\nWe see no reason why we should not place the same interpretation on the word 'disposi1ion' in section 24 of the Act.\n\nFor the reasons mentioned above this appeal is allowed. The answer given by the High Court to the question referred to it is vacated and in its place we answer that question in the negative and in favour of the Revenue. The respondent shall pay the costs of the appellant in this Court.\n\nV.P.S.\n\nAppeal allowed:\n\n(1) 82 I. T. R. 599, 605.", "total_entities": 40, "entities": [{"text": "CONTROLLER OF ESTATES DUTY,\n\nANDHRA PRADESH HYDERABAD", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "CONTROLLER OF ESTATES DUTY, ANDHRA PRADESH HYDERABAD", "offset_not_found": false}}, {"text": "KANCHARLA KESA YA RAO", "label": "RESPONDENT", "start_char": 58, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "KANCHARLA KESAVA RAO", "offset_not_found": false}}, {"text": "April 4; 1973", "label": "DATE", "start_char": 81, "end_char": 94, "source": "ner", "metadata": {"in_sentence": "CONTROLLER OF ESTATES DUTY,\n\nANDHRA PRADESH HYDERABAD v.\n\nKANCHARLA KESA YA RAO\n\nApril 4; 1973\n\n[K, S. HEGDE AND H. R. KHANNA, JJ.]"}}, {"text": "S. HEGDE", "label": "JUDGE", "start_char": 100, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Ss. 7 and 24", "label": "PROVISION", "start_char": 155, "end_char": 167, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 968, "end_char": 989, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1027, "end_char": 1031, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1197, "end_char": 1202, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1573, "end_char": 1578, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1619, "end_char": 1623, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 2035, "end_char": 2047, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2049, "end_char": 2060, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2065, "end_char": 2079, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "G. S. Rama Rao", "label": "LAWYER", "start_char": 2101, "end_char": 2115, "source": "ner", "metadata": {"in_sentence": "G. S. Rama Rao, for the respondent."}}, {"text": "1Jy\n\nHEGDE", "label": "JUDGE", "start_char": 2178, "end_char": 2188, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Coun was_ delivered 1Jy\n\nHEGDE, J.-This is an appeal by certificate."}}, {"text": "section 64(1)", "label": "PROVISION", "start_char": 2318, "end_char": 2331, "source": "regex", "metadata": {"statute": null}}, {"text": "Duty Act, 1953", "label": "STATUTE", "start_char": 2346, "end_char": 2360, "source": "regex", "metadata": {}}, {"text": "section 24", "label": "PROVISION", "start_char": 2547, "end_char": 2557, "source": "regex", "metadata": {"linked_statute_text": "Duty Act, 1953", "statute": "Duty Act, 1953"}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 2561, "end_char": 2582, "source": "regex", "metadata": {}}, {"text": "Venkataramayya", "label": "OTHER_PERSON", "start_char": 2675, "end_char": 2689, "source": "ner", "metadata": {"in_sentence": "The material facts of the case, as can be gathered from the case stated are these - One Venkataramayya died in April, 1940 leaving behind him his widow and two sons, who constituted a Hindu undivided family."}}, {"text": "Chandrasekhara Rao", "label": "OTHER_PERSON", "start_char": 2821, "end_char": 2839, "source": "ner", "metadata": {"in_sentence": "One of his sons, namely, Chandrasekhara Rao died in the year 1941, leaving behind him six minor sons and a widow."}}, {"text": "16.6-1943", "label": "DATE", "start_char": 2988, "end_char": 2997, "source": "ner", "metadata": {"in_sentence": "Subsequently, a partition was effected between the member:; oi the family on 16.6-1943 by a registered partition deed."}}, {"text": "Kotamma", "label": "OTHER_PERSON", "start_char": 3047, "end_char": 3054, "source": "ner", "metadata": {"in_sentence": "Under that deed Kotamma, the widow of Venkataramayya, who had a right to inherit her husband's share in the non-agricultural properties as well as the righ.t to be maintain~ from out of the family income, gave up her right both in the non-agricultural properties, except the right to reside in a portion of the family house as well as her right to be maintained out of the family income.", "canonical_name": "Kotarruna"}}, {"text": "April 9, 1958", "label": "DATE", "start_char": 3772, "end_char": 3785, "source": "ner", "metadata": {"in_sentence": "Kotamma died on April 9, 1958."}}, {"text": "section 24", "label": "PROVISION", "start_char": 4096, "end_char": 4106, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 4552, "end_char": 4562, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 4576, "end_char": 4585, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 5408, "end_char": 5417, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 5577, "end_char": 5587, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(1)", "label": "PROVISION", "start_char": 5621, "end_char": 5634, "source": "regex", "metadata": {"statute": null}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 6295, "end_char": 6301, "source": "ner", "metadata": {"in_sentence": "It was urged on behalf of the Revenue by Mr. Sharma, its learned counsel, that section 24 is wholly inapplicable to the facts of the present case."}}, {"text": "section 24", "label": "PROVISION", "start_char": 6329, "end_char": 6339, "source": "regex", "metadata": {"statute": null}}, {"text": "Rama Rao", "label": "OTHER_PERSON", "start_char": 6745, "end_char": 6753, "source": "ner", "metadata": {"in_sentence": "Mr. Rama Rao, learned counsel for the assessee, on the other hand, contended that undet the partition cleed, there was a 'disposition' in favour of Kotarnma and on her death the property G reverted back to all the disponers."}}, {"text": "Kotarnma", "label": "OTHER_PERSON", "start_char": 6889, "end_char": 6897, "source": "ner", "metadata": {"in_sentence": "Mr. Rama Rao, learned counsel for the assessee, on the other hand, contended that undet the partition cleed, there was a 'disposition' in favour of Kotarnma and on her death the property G reverted back to all the disponers.", "canonical_name": "Kotarruna"}}, {"text": "Kotarruna", "label": "OTHER_PERSON", "start_char": 7941, "end_char": 7950, "source": "ner", "metadata": {"in_sentence": "Froni the facts set out above it is absolutely clear that under the partition deed Kotarruna gave up her rights to the extent mentioned earlier and in lieu thereof the other members of the family allotted to her share 25 acres of wet land to be enjoyed by her durin, g her life-time.", "canonical_name": "Kotarruna"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 8614, "end_char": 8631, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Income-Tax, Gujarat v. Keshavlal Lallubhai, Patel(') this Court quoted with the approval a passage from the decision of the Madras High Court in Gutta Radhakrishnayya v.\n\nGutta Sarasamma. ("}}, {"text": "section 2(xxiv)", "label": "PROVISION", "start_char": 9060, "end_char": 9075, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(XXIV)", "label": "PROVISION", "start_char": 11677, "end_char": 11692, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 11790, "end_char": 11800, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_902_910_EN", "year": 1973, "text": "COMMISSIONER OF INCOME-TAX WEST BENGAL-II,\n\nCALCUITA v .\n\nM/S. BIRLA GWALIOR (PVT.) LTD.\n\nApril 4, 1973 . .\n\n[K. S. HEGDE .AND H. R. KHANNA, JJ.J Indian Income Tax Act 1922--S. 10(2) (xv)-Whether an amount ·.foregone b; y the assessee as Managing Agency _Conunission and an an1ount foregone cs office allowance lVas allowable as Revenue Expendlture.\n\nThese are all connected appeals. The a55cssee-rcspondent was the . .managipg agent of two companies N. & G. As Managing Agent of N Campany, it was entitled to receive a commission of 12~% on the net profits of the Managed Company together with a sum of Rs. 18,000/ • . as office allowance.\n\nIn the case of G company, the assessee was entitled to get an allowan<'Je of Rs. 30,000/- in \"'ddition to its agreed commission. In all these appeals,. certain questions were submitted by . the Tribunal to the High Court. In Civil' Appeal No. 242 of 1970 only one question was submitted and in the other two cases, i .. e., Civil Appeal 'No. 243 and 244 of 1970, two questions we.ro submitted.\n\nIn the first appeal, the question submitted was whether on the facts and circumstances of the case, a certain sum said to have beien foregqne . by the assessce as managing agency commission was allowable :.as revenue expenditure. Similar questions were called for, for the remaining two assessment years as well and in addition, one ; more question \\V'aS submitted as to whether certain .sum, said to have beien 'foregone by the assessce as. office allowanc'e was allowable as revenue\n\niexpcnditure under th(( Jome Tax Act. The assessment years \\\\'ere !954-55, !955-56 and !956-57.\n\nThe. High Court came to the conclusion that it is not necessary to answer the common question referred to in all these appeals because it was academic; but the question relating to the office allowance vas answered in favour of the assessec. In the relevant ac1cou.inting years, the asscssee gave up the managing agency commission from both tlw managed companies.\n\nIt alo gave up the office allowance due from G. Company. The \"ccounting years of both the asscssee company as \\Vcll as the managed companies \\Vere the financial year. The commissiori. was given up by the asscssee company after the ~.nd of the fin-ancial year, but before the acounts of the managed c, ompany were made up. The accounts of the managed companies. were made up some time during the end of September of the year following the respective accounting years.\n\nBut in the case of office allowance, the same was given up even before the end of the finii.n- \" cial years. , !Jn the bash. o~ these facts, the I. T. 0. s well as the Appellate Ass1sta:nt 1 Coo:nm1ss1oner held that the dcduc~1ons claimed were not allowable. As regards the commission, .they came to the conclusion that the same having accrued at the end of each of the financial years, the agency giving up the same subsequent to these dates,- docs not bring the case under s. 10(1) of the Income-tax Act. So for as tho offico allowanc~ was concerned, they caffie to the conclusion that there was 110 justification for giving up the sanw. The Income Tax Appellate\n\nI \"\n\nL .\n\n\"' (\n\nI ..\n\nC.I.T. v. BIRLA GWALIOR PVT. LTD.' (llegde, J.) 903\n\nTribunal differed from this vie~ and held that to the 'extent the commission was give)tl up, the asscssee company had no Income at al!· In other words, the commission that was, given up caIUiot be cons1ckred as the real income of the assessee company. Therefore, it i3 an all'Ow\n\n4 able expenditure under s. 10(2)(xv). As regards the office allowance the Tribunal held that the same was allowable deduction under s/ 10(2) ()<.!').\n\nThe Tri, bunal further held that the comm1ss10n as well as th!'! cffic.e allowance were given tip by the asscssee on the ground of commercial expediency. The High Court agreed with this view takqo by the Tribunal.\n\nDismissing the appeal, HELD : (i) As regards office allowance, following C.I.T.\n\nBombay North v. Chandulal Keshavlal & Co., 38 I.T.R. 601 the Tribunal was fully justified in coming to the conclusion that the expenditure incurred came within the scope of s. 10(2) (xv). The only contention advanced by the appellant was that the allowance was paid to meet certain expenses i!O'Curred by the asscS:Seei company.\n\nTherefore, the . assessec could not have given up the same.\n\nThis c.'.ontenti'On makes no difference in law.\n\nThe ratio of the decision of this Court in Cham/u .. la/'s case completely covers the point under corrsidcration .. IL906B]\n\n(ii) The question regarding giving up of the commission, no due date was fixed for the payment of th., commission under the managing agency agreements. The conimission receivable could have been ascertained only after the managed company made up its acpunts. The assessce had given up the commission even before the managed company made up its accDunts. -Hence, the fact that the assesscc company was maintaining its accounts on the basis of mercantile system cannot lead to. the conclusion that the commission ac.rued to 'it by the end of the relevant\n\nacoou!t'Aing year. It was the real income of the -assessee company that was liable to tax and the real income could not be arrived at without\n\ntaking into account the amount given up by the assessee. Therefore, in the present case, the contention of the revenue. that a surrender of\n\nthe commiss'icn under the provisions mentioned in the agreement were not dcductable for the purposes of Income Tax, cannot be sustained. [906 Fl .\n\nPoona Electric Supply Co. Ltd. v.\n\nConunissioner of . lnco111e-tax, Bombay City !, 57\n\nI.T.R. 521 TI. M. Kas/iiparek/J & Co. Ltd. v.\n\nComnu\"ssioner of lncon1e-tax, Bo1nbay North, Kutch & Saurashtra. 39 I.T.R .. 706, referred to. The question whether the -giv.en up commission comes under s. 10(2) (xv) depended on whether. the income had really accrued or not.\n\nIt is not a hypothetical accrual of income that has got to be taken into cionsidration but the real accrual of the income.\n\nIn the present case, since there was no re\"al accrual of Income, .the assessee \\Vas not liable to tax for this amount.\n\nCIVIL APPELLATE JURISDICTION : Civil. Appeal Nos. 2.42 to 244 (NT) of 1970. ·\n\nAppeals by certificate from the judgment . and order dated April 22, and 23, 1969 of the Calcutta High Court in Income-tax Reference Nos. 187, 188 & 189 of 1963.\n\nS. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthev, for the appelJant (in C.A. No. 242). '\n\nB B. Ahuja, S. P. Nayar and R. N. Sachthey, for the appellant A (in C.A. Nos. 243-244). ·\n\nD. Srn, Leila Seth, U. K. Khaitan and B. P. Maheshwari, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J.-These are connected appeals by certificate. They relate to respondent's assessment for the assessment years 1954-55, 1955-56 and 1956-57. The previous financial years are the relevant accounting year$.\n\nIn all these appeals, as directed' by the High Court of Calcutta under S.66(2) of the Indian Income Tax Act, 1922, certain questions were subjnitted by the Tribunal.\n\nIn the first case i.e.\n\nCivil Appeal No. 242 of 1970 enly one question was submilted and in the other two cases i.e., Civil Appeals Nos. 243 and 244 of 1970, two questions were submitted.\n\nThe question submitted in the first case is as follows :\n\n\"Whether on the facts in !he circumstances 0: the case the sum of Rs. 1, 11, 779 said to have been foregone by the assessee as Managing Agency commission was allowable as a revenue expenditure under S. 10(2)\n\n(xv) of the Indian Income-tax Act, 1922 for the assessment year 1954-55\" ?\n\nSimilar qestions were called for the remaining two assessment years as well. But, in addition, one more question, namely :\n\n\"Whether on the facts and in the circumstances of the case the sum of Rs. 30,000 said to have been foregone by the assessee as office allowance receivable from Gwalior Rayon and Silk Manufacturing Co. Ltd. w1s allowable as a revenue expenditure under Section 10(2)\n\n(xv) of the Indian Income Tax Act, 1922 for the. assessment years, 1955-56 and 1956-57, was called for.\" At the hearing, the High Court came to the conclusion that it is not necessary to answer the common quesion referred to in all these three appeals as the same was academic but the question relating to the office allowance was an•wered in favour of the assessee following the decision of this Court in Commissioner of Income tax Bombay North v. Chand!tlal Keshavlal & Co. ( 1 ) The material facts of the case may now be stated. The assessee -respondent is the managing agent of the National Bearing Co.\n\nLtd. and Gwalior Rayon and Silk Manufacturing Co. As managing agent of the former company it was entitled to receive a commission of 12t per cent on the net profits of the managed company together with a sum of Rs. 18,000 as office allowance. In the\n\n(1, JS J.T.Jl.. 601.\n\ncase of Gwalior Rayon and Milk Manufacturing Co. the assessee was entitled to get an office allowance of Rs. 3{),000 per year, in addition to the agreed managing agency commission.\n\nIn the relevant accounting years the assessee gave up the qJ.anaging agency commission due from both the managed companies. It also gave up 'the office allowance due from Gwalior Rayon and Silk Manufacturing company.\n\nThe accounting )ears of both the assessee company as well as the managed companies were the financial years.\n\nIn the agreement entered into between the assessee company and the managed companies no date for payment of the managing agency commission appears to have . been stipulated.\n\nThe commission was given up by the assessee com.parry after the end of the financial year but before the accounts of the managed Co. were made up. The accounts of the managed companies appear to have been made up somewhere during the end of September of the year following the respective accounting years. But, in the case of office allowance the same was given up even before the end of the financial year. On the basis of these facts the Incometax Officer as well as !he Appellate Assistant Commissioner came to the conclusion that the deductions claimed were not allowable.\n\nAs regards the commission, they came to the conclusion that the same having accrued at the end of each of the financial years, the assessee giving up the same subsequent to those dates does not bring the case under S. ! 0 (1) of the Act and no case was made out under S.10(2) (xv). So far as the office allowance i; concerned they came to the conclusion 1hat there was no justification for giving up the same.\n\nThe Income-tax Appellate Tribunal differed from the view taken by the Income-tax Officer and the Appellate Assistant Commissioner. Dealing with the question of commission it came to the conclusion that to the extent the commission was given up the assessee company earned no income at all. In other words the commission that was given up cannot be considered as-the real income of the assessee company. It further came to the conclusion that under any circumstance it is an allowable expenditure under S. 10(2) (xv). As regards the office allowance, the Tribunai was of the opinion that the same was an allowable deduction under S. 10(2)(xv). The Tribunal held that the commission as well as the office allowance were given up by the assessee on the ground of commercial expediency. The High Court agreed with the view taken by the Tribunal.\n\nWe will first take up the question relating to the office allowance. According to the finding of the Tribunal the assessec com pany gave up !he office allowance on the ground of cort1mcrcial expediency. It opined that the managed company's financial position was not sound during the relevant accounting years and it l0-L797SL•P C.T.173\n\nwas necessary for the assessee company to give up the office allowance in order 'to stabilise the jinances of the managed company.\n\nThe Tribunal further came to the conclusion that because o.f the sacrifices made by the assessee company, the finances of the managed company improved susequently, as a result of which the assessee company was able to earn more profits in the later years. This is a finding of fact. That finding was binding on the High Court.\n\nOn the basis of that finding the Tribunal was fully justified in coming to the conclusion that the expenditure incurrel\" came within the scope of S. J0(2)(xv). That conclusion is supported by the decision of this Court in Chandulal's case (supra).\n\nThe only contention advanced in this Court in respect of the office allowance was that it was paid to meet certain expenses incurred by the assessee company; consequently the assessee could not have given up the same.\n\nWe do not know whether the office allowance was paid solely for that purpose or whether it was partly as reinuneration and partly to meet the expenditure incurred.\n\nIn either case it makes no difference in law.\n\nThe ratio of the decision of this Court in Chandulal's case completely covers the point under consideration.\n\nNow turning to !he question regarding giving up of the commission, as mentioned earlier, the assessee was maintaining its accounts on the basis of mercantile system.\n\nIts acounting year was the financial year.\n\nIt gave up the commission after the .end of the financial year.\n\nOn the basis of these facts it was contended on half of the Revenue that the commission had accrued betore it was given up.\n\nHence it cannot be said that the assessee had not earned the commission in question.\n\nTherefore, the assessee's case cannot be considered under S.10( 1).\n\nWe are unable to accept this contention as correct.\n\nAs mentioned earlier no due date was fixed for the payment of the commission under the managing agency agreements.\n\nThe commission receivable could have been ascertained only after the managed company made up its accounts.\n\nThe assessee had given up the commission even before the managed company made up its accounts. Hence !he mere fact that the assessee company was maintaining its accounts on the basis of mercantile system cannot lead to the conclusion that the commission had accrued to it by the end of the relevant accounting year.\n\nThis is also the view taken by the Bombay High Court in H. M. Kashiparekh & Co. Ltd. v. Commissioner of Income-tax, Bombay North, Kutch & Saurashtra. (') The facts of that case are somewhat similar to the facts of the present case.\n\nTherein the assessee which maintained its accounts on mercantile system was the managing agent of a. paper mill company.\n\nUnder the managing agency\n\n(1) 39 I. T. R. 706.\n\nagreement it was under a duty to forego upto one-thirds of its commission where the profits of the managed company were not sufficient to pay a dividend of 6 per cent.\n\nFor the accounting year ending March 31, 1950, the assessee earned a commission of Rs. 1,17,644, that as a result of the resolutions passed by the managed company and the assessee company the assessee gave up a sum of Rs. 97 ,000 in December, 1950. The Appellate Assistant Commissioner held that the maximum amount the assessee was bound to forego was only Rs. 39,215 and included the balance of the amount foregone, viz., Rs. 57,785/- in the taxable income.\n\nThe Appellate Tribunal, however, found that the sum of Rs. 57, 785 was. also given up for reasons of commercial expediency.\n\nAffirming the decision of. the Tribunal the High Court held that it was the real income of the assessee company for the accounting year that was liable to tax and that the real income could not be arrived a:t without taking into account the amount foregone by the assessee.\n\nIn ascertaining the real income the fact that the assessed followed the mercantile system of accounting did not have any bearing. The accrual of the commission, the making of the accounts, the legal obligation to give up part of the commission, and the foregoing of the commission at the time of the making of the accounts were not disjointed facts : there was a dovetailing about them which could not bJl ignored.\n\nThe real income of the assessee was Rs. 27,644 and the amount of Rs. 97,000 foregone by the assessee could not be included in the real income of the assessee for the accounting year.\n\nRejecting the contention that merely because the assessee maintained its accounts on the basis of mercantile system, the income must be held to have accrued at the end of the accounting year, the High Court observed \"even so, (the failure to produce account books) we shall proceed on the footing that, the assessee company having following the mercantile system of account, there must have been entries made in its books in the accounting year in respect of the amount of the commission.\n\nIn our judgment, we would not be justified in attaching any particular importance in this case to the fact that the company followed the mercantile system of account.\n\nThat would not have any particular bearing in applying the principle of real income to the facts of this case.\" This decision was cited with approval by this Court in Poona Electric Supply Co. Ltd. v. Comrni>sioner of Income-tax, Bombay city I.('') Dealing with that decision this is what this Court observed : \"The conceot of 'real income' is also expounded in the decision of the Bombay High Court in H. M. Kashiparekh & Co. Ltd. v. Commissioner of Income-tax (supra). There, under the managing agency agreement the managing agent was under a duty to forego up to one-third of\n\n(1) l7 I. T. R. Sil.\n\nits commission where the profits of the managed company were A not sufficient to pay a dividend of 6 per cent. The contention of the revenue that such surrender of the commission under the provisions mentioned in th~ agreement was not deductible for the purpose of income-tax was negatived. The principle has been succintly stated in the head-note thus :\n\n\"The principle of real income is not to be so subordinated as to amount vir'tually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the dos~ of an accounting year.\n\nIn examining any transaction and situation of this nature the court would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language\".\n\nMr. S. T. Desai, learned counsel appearing for the Revenue contended that the facts of this case are governed by the rule laid down by this Court in Morvi Industries Ltd. v. Commissioner of Income-tax (Central), Calcutta(').\n\nWe do not think thatsubmission is correct.· Facts of that case are :-The assessee, which was the managing agen1 of its subsidiary company, maintained its accounts on the mercantile system.\n\nIt was .entitled to receive an office allowance of Rs. 1,000 per month, a commission of 12t per cent, of the ne1 profits of the managed company and an additional commission of 1 t per cent on all purchases of cotton and sales of cloth and yarn.\n\nIn the accounting years ended on December 31. 1954 and December 31, 1955, the managed Company suffered losses and the assessee earned only commission on -the sale of cloth and yarn for the two years. The total amounts, including the office a\\lowancc which the assessee was entitled to receive were Rs. 50,719 and Rs, 13.963 for the two years. Under clause 2 ( e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively. By resolutions of its board of directors dated respectively, April 4, 1955, and June 19, 1956 [i.e., after the\n\nco1;;111ission had become due but before it had become payable in terms of clause 2 (2) ], the assessee relinquished its commission on sales and office allowance because the managed company had been suffering heavy losses in the past years. The Tribunal held\n\n(,) 82 I. T. R. 835.\n\nthat the relinquishment J:W the assessee of its remuneration after it had become .4ue was of no effect; and also rejected its claim that the amounts relinquished were allowable under section 10(2) (xv) of the Income-tax Act, 1922, because, as a result of the relinquishment, the financial position of the managed company did not become stronger while that of the assessee-company became weaker and, therefore, the relinquishment was not for the benefit of 1he assessee.\n\nOn a. reference the High Court agreed with the view taken by the Tribunal. On appeal this Court affirmed the decision of the High Court.\n\nAS seen from the facts of that case the commission given up had accrued on the 31st December, 1954 and 31st December, 1955, respectively, and the assessee purported to give up that commission several months thereafter.\n\nFurther, the Tribunal in that case had come to the conclusion that the assessee did not 2ive up 1he amounts in quesion for commercial expediency.\n\nThis Court came to the conclusion that the amounts in question were due at the 31st December, 1955 and 1956, though payable at a later date. Consequently, those amounts had accrued long before they were given up and the giving up of the same did not come within the scope of section I 0 (I ) . It is true that in the course of the judgment emphasis was also placed on the fact that the assessee was mintaining its accounts on the basis of mercantile system, but it was not on that basis alone that this Court came to the conclusion that the income in queston accrued on 3 lst Decemher, 1955 and 31st December, 1956.\n\nIn arriving at the conclusicin that the income in question accrued on the 31st December, 1955 and 31st December, 1956, this Court primarily took into consideration the terms of the agreement.\n\nIn the course of the judgment delivered by one of us, Khanna, J., passage from the judgment of this Court in Commissioner of Income Tax Bombay City Iv. Messrs.\n\nShoorji Valiabhadas and Co.( 1 ) was quoted in support of the conclusion reached by this Court. That passage reads thus :\n\n\"Income-tax is a levy on income.\n\nThough the Income-tax A-ct takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt, yet the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-ke\"ping, an entry is made about a 'hypothetical inr:ome'. which doer not materialise.\n\nWhere income has, in fact, been received and is subsequently given up in such circumstances that it remams the income of the recipient, even though given up, the tax may be payable.\n\nWhere, however, the income can be said not to /1ave resulted at all, there is obviomly neither accrual nor receim of income, even though an entry to that effect might, in certain\n\n(I) 46 I. T. R. 144.\n\ncircumstances, have been made in the books of account\" (emphasis supplied). Hence it is clear that this Court in Morvi Industries' case did emphasise the fact that the real question for decision was whc; ther the income had really accrued or not. It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the income.\n\nIn addition to the contentions taken earlier, Mr. Desai also took objection to the way in which the High Court disposed of these cases. It may be noted that the High Court came to the conclusion that the findings reached b(y the Tribunal were findings of fact and, therefore, it would not be proper for the High Court to interfere with the same but Sltrangely enough, at an earlier stage the High Court called for the questions referred to earlier, under S. 66 ( 2) . If the questions raised are concluded by the facts found by the Tribunal the High Court was not justified in calling for\n\nthose questions.\n\nFuther when the High Court issued the rule on the applications made by the Revenue, the assessee not only objected to the prayer made by the Revenue, but also submitted that in case the Court was pleased to direct the Tribunal to Stalce a case, It may also be pleased to direct the Tn1*mal to submit the question \"whether the commission given up can be considered as real income coming within the scope of S. l 0(1) ?\" But, the High Court rejected that prayer but merely called upon the Tribtlnal to submit the questions set out earlier. 'J'he High Court has now come to the conclusion that the COffiil!ission given up by the assessee cannot be considered as it real income. It is undoubtedly true that there are certain incongruities in the procedure adopted by the High Court but the final conclusion reached by the High Court is, in our opinion, correct in law. Therefore, the High Court was justified in refusing to answer the first question in all the three cases.\n\nIn the result these appealli fail and they are dismissed with costs; one set of hearing fee.\n\ns.c.\n\nAppeals dismissed_", "total_entities": 61, "entities": [{"text": "COMMISSIONER OF INCOME-TAX WEST BENGAL-II,\n\nCALCUITA", "label": "PETITIONER", "start_char": 0, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX WEST BENGAL-II, CALCUTTA", "offset_not_found": false}}, {"text": "M/S. BIRLA GWALIOR (PVT.) LTD", "label": "RESPONDENT", "start_char": 58, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "M/S BIRLA GWALIOR (PVT.) LTD", "offset_not_found": false}}, {"text": "April 4, 1973", "label": "DATE", "start_char": 90, "end_char": 103, "source": "ner", "metadata": {"in_sentence": "April 4, 1973 . ."}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 110, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ", "label": "JUDGE", "start_char": 127, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Indian Income Tax Act 1922", "label": "STATUTE", "start_char": 146, "end_char": 172, "source": "regex", "metadata": {}}, {"text": "S. 10(2)", "label": "PROVISION", "start_char": 174, "end_char": 182, "source": "regex", "metadata": {"linked_statute_text": "Indian Income Tax Act 1922", "statute": "Indian Income Tax Act 1922"}}, {"text": "Jome Tax Act", "label": "STATUTE", "start_char": 1547, "end_char": 1559, "source": "regex", "metadata": {}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 2928, "end_char": 2936, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2944, "end_char": 2958, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "BIRLA GWALIOR PVT. LTD", "label": "RESPONDENT", "start_char": 3151, "end_char": 3173, "source": "ner", "metadata": {"in_sentence": "\"' (\n\nI ..\n\nC.I.T. v. BIRLA GWALIOR PVT."}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 3499, "end_char": 3511, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 4095, "end_char": 4103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 5761, "end_char": 5769, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 6321, "end_char": 6332, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthev, for the appelJant (in C.A. No."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 6334, "end_char": 6345, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthev, for the appelJant (in C.A. No.", "canonical_name": "B. B. Ahuja"}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 6347, "end_char": 6358, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthev, for the appelJant (in C.A. No."}}, {"text": "R. N. Sachthev", "label": "LAWYER", "start_char": 6363, "end_char": 6377, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthev, for the appelJant (in C.A. No.", "canonical_name": "R. N. Sachthev"}}, {"text": "B B. Ahuja", "label": "LAWYER", "start_char": 6419, "end_char": 6429, "source": "ner", "metadata": {"in_sentence": "B B. Ahuja, S. P. Nayar and R. N. Sachthey, for the appellant A (in C.A. Nos.", "canonical_name": "B. B. Ahuja"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6447, "end_char": 6461, "source": "ner", "metadata": {"in_sentence": "B B. Ahuja, S. P. Nayar and R. N. Sachthey, for the appellant A (in C.A. Nos.", "canonical_name": "R. N. Sachthev"}}, {"text": "D. Srn", "label": "OTHER_PERSON", "start_char": 6510, "end_char": 6516, "source": "ner", "metadata": {"in_sentence": "D. Srn, Leila Seth, U. K. Khaitan and B. P. Maheshwari, for the respondent."}}, {"text": "Leila Seth", "label": "OTHER_PERSON", "start_char": 6518, "end_char": 6528, "source": "ner", "metadata": {"in_sentence": "D. Srn, Leila Seth, U. K. Khaitan and B. P. Maheshwari, for the respondent."}}, {"text": "U. K. Khaitan", "label": "OTHER_PERSON", "start_char": 6530, "end_char": 6543, "source": "ner", "metadata": {"in_sentence": "D. Srn, Leila Seth, U. K. Khaitan and B. P. Maheshwari, for the respondent."}}, {"text": "B. P. Maheshwari", "label": "OTHER_PERSON", "start_char": 6548, "end_char": 6564, "source": "ner", "metadata": {"in_sentence": "D. Srn, Leila Seth, U. K. Khaitan and B. P. Maheshwari, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 6631, "end_char": 6636, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE, J.-These are connected appeals by certificate."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 6886, "end_char": 6908, "source": "ner", "metadata": {"in_sentence": "The previous financial years are the relevant accounting year$.\n\nIn all these appeals, as directed' by the High Court of Calcutta under S.66(2) of the Indian Income Tax Act, 1922, certain questions were subjnitted by the Tribunal."}}, {"text": "S.66(2)", "label": "PROVISION", "start_char": 6915, "end_char": 6922, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 6930, "end_char": 6957, "source": "regex", "metadata": {}}, {"text": "S. 10(2)", "label": "PROVISION", "start_char": 7457, "end_char": 7465, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7479, "end_char": 7506, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gwalior Rayon and Silk Manufacturing Co. Ltd.", "label": "ORG", "start_char": 7827, "end_char": 7872, "source": "ner", "metadata": {"in_sentence": "30,000 said to have been foregone by the assessee as office allowance receivable from Gwalior Rayon and Silk Manufacturing Co. Ltd. w1s allowable as a revenue expenditure under Section 10(2)\n\n(xv) of the Indian Income Tax Act, 1922 for the."}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 7918, "end_char": 7931, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 7945, "end_char": 7972, "source": "regex", "metadata": {}}, {"text": "Gwalior Rayon and Silk Manufacturing Co.", "label": "ORG", "start_char": 8550, "end_char": 8590, "source": "ner", "metadata": {"in_sentence": "The assessee -respondent is the managing agent of the National Bearing Co.\n\nLtd. and Gwalior Rayon and Silk Manufacturing Co. As managing agent of the former company it was entitled to receive a commission of 12t per cent on the net profits of the managed company together with a sum of Rs."}}, {"text": "Gwalior Rayon and Milk Manufacturing Co.", "label": "ORG", "start_char": 8822, "end_char": 8862, "source": "ner", "metadata": {"in_sentence": "case of Gwalior Rayon and Milk Manufacturing Co. the assessee was entitled to get an office allowance of Rs."}}, {"text": "Gwalior Rayon and Silk Manufacturing company", "label": "ORG", "start_char": 9167, "end_char": 9211, "source": "ner", "metadata": {"in_sentence": "It also gave up 'the office allowance due from Gwalior Rayon and Silk Manufacturing company."}}, {"text": "S.10(2)", "label": "PROVISION", "start_char": 10345, "end_char": 10352, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 10(2)", "label": "PROVISION", "start_char": 10990, "end_char": 10998, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 10(2)(xv)", "label": "PROVISION", "start_char": 11117, "end_char": 11129, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandulal", "label": "OTHER_PERSON", "start_char": 12351, "end_char": 12360, "source": "ner", "metadata": {"in_sentence": "That conclusion is supported by the decision of this Court in Chandulal's case (supra)."}}, {"text": "S.10( 1)", "label": "PROVISION", "start_char": 13464, "end_char": 13472, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 14104, "end_char": 14121, "source": "ner", "metadata": {"in_sentence": "This is also the view taken by the Bombay High Court in H. M. Kashiparekh & Co. Ltd. v. Commissioner of Income-tax, Bombay North, Kutch & Saurashtra. (')"}}, {"text": "March 31, 1950", "label": "DATE", "start_char": 14673, "end_char": 14687, "source": "ner", "metadata": {"in_sentence": "For the accounting year ending March 31, 1950, the assessee earned a commission of Rs."}}, {"text": "December 31. 1954", "label": "DATE", "start_char": 19093, "end_char": 19110, "source": "ner", "metadata": {"in_sentence": "In the accounting years ended on December 31."}}, {"text": "December 31, 1955", "label": "DATE", "start_char": 19115, "end_char": 19132, "source": "ner", "metadata": {"in_sentence": "1954 and December 31, 1955, the managed Company suffered losses and the assessee earned only commission on -the sale of cloth and yarn for the two years."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 19409, "end_char": 19417, "source": "regex", "metadata": {"statute": null}}, {"text": "December 31, 1954", "label": "DATE", "start_char": 19498, "end_char": 19515, "source": "ner", "metadata": {"in_sentence": "Under clause 2 ( e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively."}}, {"text": "November 24, 1955", "label": "DATE", "start_char": 19684, "end_char": 19701, "source": "ner", "metadata": {"in_sentence": "Under clause 2 ( e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively."}}, {"text": "July 21, 1956", "label": "DATE", "start_char": 19707, "end_char": 19720, "source": "ner", "metadata": {"in_sentence": "Under clause 2 ( e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively."}}, {"text": "April 4, 1955", "label": "DATE", "start_char": 19797, "end_char": 19810, "source": "ner", "metadata": {"in_sentence": "By resolutions of its board of directors dated respectively, April 4, 1955, and June 19, 1956 [i.e., after the\n\nco1;;111ission had become due but before it had become payable in terms of clause 2 (2) ], the assessee relinquished its commission on sales and office allowance because the managed company had been suffering heavy losses in the past years."}}, {"text": "June 19, 1956", "label": "DATE", "start_char": 19816, "end_char": 19829, "source": "ner", "metadata": {"in_sentence": "By resolutions of its board of directors dated respectively, April 4, 1955, and June 19, 1956 [i.e., after the\n\nco1;;111ission had become due but before it had become payable in terms of clause 2 (2) ], the assessee relinquished its commission on sales and office allowance because the managed company had been suffering heavy losses in the past years."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 19923, "end_char": 19931, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 20313, "end_char": 20326, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 20339, "end_char": 20359, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "31st December, 1954 and", "label": "DATE", "start_char": 20818, "end_char": 20841, "source": "ner", "metadata": {"in_sentence": "AS seen from the facts of that case the commission given up had accrued on the 31st December, 1954 and 31st December, 1955, respectively, and the assessee purported to give up that commission several months thereafter."}}, {"text": "31st December, 1955", "label": "DATE", "start_char": 20842, "end_char": 20861, "source": "ner", "metadata": {"in_sentence": "AS seen from the facts of that case the commission given up had accrued on the 31st December, 1954 and 31st December, 1955, respectively, and the assessee purported to give up that commission several months thereafter."}}, {"text": "31st December, 1956", "label": "DATE", "start_char": 21821, "end_char": 21840, "source": "ner", "metadata": {"in_sentence": "In arriving at the conclusicin that the income in question accrued on the 31st December, 1955 and 31st December, 1956, this Court primarily took into consideration the terms of the agreement."}}, {"text": "Khanna", "label": "JUDGE", "start_char": 21970, "end_char": 21976, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment delivered by one of us, Khanna, J., passage from the judgment of this Court in Commissioner of Income Tax Bombay City Iv."}}, {"text": "Morvi Industries", "label": "ORG", "start_char": 23100, "end_char": 23116, "source": "ner", "metadata": {"in_sentence": "Hence it is clear that this Court in Morvi Industries' case did emphasise the fact that the real question for decision was whc; ther the income had really accrued or not."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 23408, "end_char": 23413, "source": "ner", "metadata": {"in_sentence": "In addition to the contentions taken earlier, Mr. Desai also took objection to the way in which the High Court disposed of these cases."}}, {"text": "S. 66", "label": "PROVISION", "start_char": 23813, "end_char": 23818, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_911_917_EN", "year": 1973, "text": "RAM NARAIN\n\nSTATE OF UTTAR PRADESH April 5, 1973 [K. K. MATHEW AND I. D. DuA, JJ,] Indian Evidence Act, 1872, s. 45-Han_dwriting Expert-Sole testimony for conviction--Courts below comparing handwriting for theniselves and c.greeing with Expert-No illegality in conviction--Sente, nce-Lapse of tin1e-Sentence reduced to period already undergone.\n\nThe appellant was convicted of an offence under s. 384 read with s. 511 Indian Penal Code.\n\nThe conviotion was solely based <>.ti the conclusion that the two anonymous letters dema:nding ransom for the kidn•pped boy had been written by him. The appellant having categorically denied his authorship of those letters a handwriting expert was produced in support of t~ prosecution case, and believing the expert testimony the three cpurts below agreed in co!t?Victing the appellant.\n\nIn this Court the sole question for consideration was as to the legality and propriety of the appeUant's conviction on the uncorroborated testimony of the handwriting expert. It was urged by the appellant Iha: it was not safe to record a findi$lg about a person's handriting merely on the basis of comparison because the opinion of the handwriting expert is not conclusive.\n\nDismissing the appeal.\n\nHELD : (i) The legal position enundiated in Fakhruddin's case cannot be said to be inconsistent with the ratio of ftnyone of the earlier decisions to which reference has been made therein. [916A] Fakhruddin v. State of Madh, va Pradesh, A.LR. 1967 S.C. 1326, Ram Chandra v. State of U. P., A.LR. 1957 S.C. 381, Ishwari Prasad Misra v. Mohammad Isa, A.LR. 1963 S.C. 1728 and Sha.lhi Kumar Banerjee, v. Subodh Kumar Banerjee, A.I.R. 1964\n\nS.C. 529, referred to. lt is no douPt true that the opinion of a hand-writing expert givtti in evidence is no less fallible than any other expert opin'ion adduced in evidence with the result that such evidence has to be received with great caution.\n\nBut this opinion evidepce wh'ich is relevant may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert.\n\nIf after comparison of the disputed and the admitted writings by the Court itself when the Presiding Officer is familiar with the language, it is considered safe to accept the opinion of the expert, then the condusion so arrived at cannot be assa'iled on special leave on the mere ground that comparison of handwriting is genera11y considered as hazardous and inconclusive.\n\nIn the present case the Trial Magistrate, the Sessions 111<18\" who\n\nhard the •ppeal and the , High. our! themselve. co01pared the writing with the help of the experts opm1on and came to the conclusion that the disputed handwriting tallied with tho specime, n handwriting of the appellant.\n\nThere was, therefore no ground for interference by this Court with the appellant's conviction. [9!6B]\n\n(ii) Though a large number of factors fall for consideration in determining the appropriate sentence the broad object of punishment 9ll\n\nSUPREME COURT REPORTS [1973] 3 S.C.ll.\n\nof an accused found guilty in progressive civilized societies is to impress on the guHty party that commission of crime does not pay and that it is both against his individu-al interest and also against the larger interest of the soclety to which he belongs. The 'e:ntence to be appropriate should, therefore, be neither too harsh nor too lenient.\n\nThe sentence Jf rigorous imprisonment for one year imposed in the present case \\vould not in the normal course be considered to be too harsh but considerable time had elapsed since the commissio, o of crime and the appellant had been on bail granted by this Court since January, 1970.\n\nT-o send him back to jail after so many years would be somewhat harsh. c9 l 7B]\n\n[Sentence reduced to period already undergone with fine.] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal o. 6 of 1970.\n\nAppeal by special leave from the judgment and order dated October 10, 1969 of the Allahabad High Court in Criminal Rev.\n\nNo. 2093 of 1967.\n\nJ. P. Goyal and R. K. Bhatt, for the appellant.\n\n0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by DuA, J. : This appeal by special leave is directed against the judgment and order of a learned Single Judge of the Allahabad High Court dated October 6, 1969 dismissing the appellant's revision from the order of a II Temporary Sessions Judge, Kanpur dated November 8, 1967 dismissing his appeal from his conviction by a learned Magistrate under ss. 384/511 I.P.C. and sentence of rigorous imprisonment for one year.\n\nOn August 15,1964, Mannu, a boy about 5 years old, was found missing from the house of the appellant's relation Shri Gajendra Natth (P.W. 19), an Excise Inspector, residing in Mohalla Ashok Nagar, Kanpur within the jurisdiction of police station Sisamau the following day.\n\nA report was lodged at the police station Sisamau about this fact and a notice was also published in the newspapers and hand-bills were distributed announcing a reward of Rs. 501/- for anyone who furnished the clue of 1he missing child's whereabouts. A post-card (Ext. Ka-1) bearing post office seals dated 21-8-1964 and later an inland letter (Ext. Ka-2) bearing the date October 21, 1964 were received by Gajendra Nath demanding, in the first letter a ransom of Rs. 1,000/-, and in the second a ransom of Rs. 5,000/- for the return of the boy.\n\nIn December, 1964, a trainee of. the local I.T.I., Kanpur, Yashpal Singh by name, after reading the announcement of the reward.. made attempts to trace the whereabouts of the missing child.\n\nHaving found a clue, he gave the necessary information to the father of the child regarding his whereabouts.\n\nThereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur. The investigation of the case revealed that the appellant, Ram Narain, was also responsible for kidnapping and wrongfully confining the said child and that it was be who had sent the two anonymous letters (Exts. Ka-1 and K-2) demanding ransom. All the three persons were prosecuted under ss. 363, 468 and 384/511, I.P.C.\n\nThe trial court convicted Ganga Bux Singh and Chandrabusban Singh under s. 368, I.P.C.' and Ram Narain appellant under ss. 384/511, I.P.C.\n\nOn appeals by the convicted persons, the learned II Temporary Sessions Judge, Kanpur, came to the conclusion that the offence under s. 368, I.P.C. had not en established beyond reasonable doubt with the result that Ganga Bux Singh and Chandrabushan were acquitted.\n\nThe appellant, Ram Narain's conviction for an offence under ss. 384/511, I.P.C. was, however, upheld. This conviction was solely based on the conclusion that the two anonymous letters had been written by him.\n\nThe appellant having categorically denied bis authorship of those letters, Shri R. A. Gregory, a hand-writing expert was produced in support of the presecution case. Believing his testimony that the appallant was the writer of those two letters, all the three courts below have agreed in convicting the appellant.\n\nThe short question raised before us relates to the legality and .properiety of the appellant's conviction on the uncorroborated testimony of the hand-writting expert. The High Court relied in support of the appellant's conviction on the decision of this Court in Fakhruddin v. State of Madhya Pradesh ( 1) in w!Jich after referring to four of its earlier decisions in, (i) Ram Chandra v.\n\nState of U.P.( 2 ) (ii) lshwari Prasad Misra v. Mohammad lsa( 3 )\n\n(iii) Shashi Kumar Banerjee v. Subodh Kumar Banerjee(') (iv) State of Gujarat v.\n\nChhotalal Patni(') this Court rejected the contention that the Court dealing with the authorship of a writing could not observe for itself the similarity and differences between the admitted and the disputed hand-writings to verify whether or not the conclusi.ons of the hand-writing expert were proper.\n\nThen, after refernng to ss. 45, 47 and 73 of the Indian Evidence Act, this Court observed :-\n\n\"Both under S. 45 and S. 4 7 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familliari1y resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion my be acted upon. One such means open to the Court 1s to apply its own observation to the\n\n(f) A. I. R. 1967 S. C. 1326.\n\n(3) A. l. R. 1963 S. C. 1728.\n\n(5) [1967]\n\n(2) A. I. R. 1957 S. C. 381.\n\n(4) A. I. R. 1964 S. C. 529.\n\nI S. C. R. 249\n\nadmitted or proved writings and to compare them with the disputed one, not to become an handwritin~ expert but to verify the premises of the expert in the one case an to appraise the value of the opinion in the other case.\n\nThis comparison depends on an analysis of the characteristics in the admitted or proved wd'tings and the finding cf the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is sub.iected to scrutiny and although relevant to start with becomes probative.\n\nWhere an expert's opinion is giv.en, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the 1wo writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accent the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.\n\nTherefore, to satisfy ourselves whether the testimony of the handwriting expert is acceptable or not, we sent for the record and compared the disputd writings with some comparable material.\n\nThere were two such writings which were claimed as standard. One was a register maintained at the office of the Association in which there was a signature in three places in Hindi which purported to be that of Fakhruddin (Exhibit\n\nP-56).\n\nThe other was a writing which Fakhruddin made to the dictation of the Police Officer in Jail (Ex.P.61).\n\nThese were, of course, not admitted by Fakhruddin and the question had to be first decided which of the two or bO'!h could be said to be approved &tandard material.\n\nMr.\n\nKohli urged that Ex. P-56 could not be so treated as there was no proof that the signatures were made by Fakhruddin. In this submission Mr. Kohli is right. The evidence of Tahir Ali, P.W.14 which has been relied upon is not definite on this point. He does not say that the signatures were of Fakhruddin who was the accused in the case. He only says that the persons whose signatures were made in the register, signed it and this leaves the matr at large.\n\nThere is, however, proof that the other wntmg was made r/y Fakhruddin the appellant.\n\nThe Sub-Inspector, P.W. 33 took the precaution of having two \"'.itnesses P.Ws. Nos. 16 and 27.\n\nOf these P.W. 16 dtC~ not identify the appellant as the writer but the other\n\nP.W. 27 did.\n\nExhibit P-61, therefore, furnishes the necessary comparative material.\"\n\nAccording to the appellant's learned counsel, the High Court has not properly understood the principle of law laid down by this Court in its various decisions.\n\nOur avtention was invited B to Chhota Lal Patni's case (supra) where it is observed :-\n\n\"A Court is competent to compare th\\: disputed writing of a person with others which are admitted or proved to be his writings. It may not be . safe for a Court to record a finding about a person's writing in a certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before rt in that regard. The opinion of a handwriting expert is also relevant in view of s. 45 of the Evidence Act, but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite fin.ding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It was therefore not right for the learned Judge to consider it unsafe to rely upon the evidence of the complainant in a case like this, i.e., in a case in which no handwriting expert had been examined in support of his statement.\" ·\n\nIt was emphasised by the appellant's learned counsel that according to this decision it is not safe to record a finding about a person's writing merely on the basis of comparison because the opinion of a hand-whiting expert is not conclusive and his evidence is normally insufficient for recording a definite finding about the writing being of a certain person or not.\n\nIndeed the l\\l'Pellant's contention was that in Fakhruddin's case (supra) though reference was made to this decision, its ratio was not properly appreciated and the decision in Fakhruddin (supra) is not in conformity with this earlier decision. We are uable to agree wth this submission.\n\nReference was also made by the appellant's counsel to Shashi Kumar (supra) where it is observed that the expert evidence as to' hand-writing is opinion evidence and it can rarely, if ever, take\n\nthe place of subl>tantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence.\n\nIn Shashi Kumar (supra), it may be pointed out, this Court found all the probabilities against the expert opinion and the direct testimony of two witnesses accepted by this Court also wholly inconsistent with that opinion.\n\nIn our view, the legal position enunciated in Fakhruddin (supra) cannot be said to be inconsistent with the ratio of any one of 'the earlier decisions to which refrence has been made therein How it is no doubt true that the opinion of a hand-writing expert given . in evidence is no less fallible than any other expert opfrtion\n\nadduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supportin.~ the view expressed lzy the expert. If after comparison of the disputed and the admitted writings by the Court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison hand-writing is generally considered as hazardous and inclusive and that the opinion of the hand-writing expert has to be received with considerable caution. The ques•tion\n\nin each case falls for determination on the appreciation of evidence and unless some serious infirmity or gave failure of justice i; shown, this Court would normally refrain from re-appraising the matter on appeal by special leave, Tiie Triaf Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand.\n\nThe learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the Trial Magistrate. himself compared those writings with the help of the expert's opinion and his report and came to a definite conclusion \"that the disputed hand-writings tally with the specimen hand-writing\". In the High Court also the learned Single Judge, a.f'ter referring to the decision in FakhruddJn (supra), observed as follows :-\n\n\"I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters.\n\nI have not the least doubt that the writing in the post-card and he writing in the admitted writing of the applicant are the same. Thus. I have no reason to differ from the finding recorded by the courts below.\" No serious attempt was made on behalf of ihe appellant to find fault with the approach of the three courts below.\n\nThere is. therefore, no !!fOUnd made out for interference by this Court with the appellant's conviction. Unfortunately, the record i; not before us otherwise we would have also tried to examine for ourselves the disputed and the soecimen hand-writings.\n\nHow ever, in view of the concurrent decisions of the three courts beiow, we did not consider it necessary to adjourn the hearing of th.is case to have the documents before us for our examination.\n\nThe next question is one of sentence which is always a matter of some difficulty. It generally poses a complex problem which requires a working compromise between the coQipetin.e; views based on reformative, deterrent and retributive theories of punishments. Though a large number of factors fall for consideration in determining the appropriate sentence; the broad object of punishment. of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest ot the society to which he belongs.\n\nThe. sentence to appropriate should, therefore, be neither too harsh nor too lenient.\n\nIn the casein hand the imposition of rigorous imprisonment for one yea{ upheld by the appellate and the revisional courts may not have been considered by us in the nomal course to be too harsh calling for interference under Article 136 of the Constitution. The difficulty now posed is !hat the . appellant is on bail and he has serve.!l out only one\n\nmonth's sentence.\n\nHe was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as 1964.\n\nThe proceeding against him have lasted fq_r more than 8 years.\n\nHe was released on bail by this Court in January, 1970. 'l'o send him back to jail now after the lapse of so many years for serving out the remaining period of sentence seems to us on the facts and circumstances of this case to bj:l somewhat harsh. The offence of attempted exortion undoubtedly reflects to some extent anti-social deparvity of mind but the attempt did not succeed. We, therefore, consider that on the facts and circumstances of this case the ends of substantial justice would be amply met ii we now reduce the sentence of imprisonment to that already undergone but also impose fine of Rs. 700/- and in default of payment of fine direct\n\nthat he undergoes rigorous imprisonment for a period of three months.\n\nWe order accordingly. The appeal is thus accepted in part as just stated. ·\n\nG.C.\n\nAppeal allowed in part.", "total_entities": 57, "entities": [{"text": "RAM NARAIN", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "RAM NARAIN", "offset_not_found": false}}, {"text": "STATE OF UTTAR PRADESH", "label": "RESPONDENT", "start_char": 12, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "April 5, 1973", "label": "DATE", "start_char": 35, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "RAM NARAIN\n\nSTATE OF UTTAR PRADESH April 5, 1973 [K. K. MATHEW AND I. D. DuA, JJ,] Indian Evidence Act, 1872, s. 45-Han_dwriting Expert-Sole testimony for conviction--Courts below comparing handwriting for theniselves and c.greeing with Expert-No illegality in conviction--Sente, nce-Lapse of tin1e-Sentence reduced to period already undergone."}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 50, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "I. D. DuA, JJ", "label": "JUDGE", "start_char": 67, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA*", "offset_not_found": false}}, {"text": "Indian Evidence Act, 1872", "label": "STATUTE", "start_char": 83, "end_char": 108, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 110, "end_char": 115, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act, 1872", "statute": "Indian Evidence Act, 1872"}}, {"text": "s. 384", "label": "PROVISION", "start_char": 394, "end_char": 400, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act, 1872", "statute": "Indian Evidence Act, 1872"}}, {"text": "s. 511", "label": "PROVISION", "start_char": 411, "end_char": 417, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act, 1872", "statute": "Indian Evidence Act, 1872"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 418, "end_char": 435, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Fakhruddin", "label": "OTHER_PERSON", "start_char": 1270, "end_char": 1280, "source": "ner", "metadata": {"in_sentence": "HELD : (i) The legal position enundiated in Fakhruddin's case cannot be said to be inconsistent with the ratio of ftnyone of the earlier decisions to which reference has been made therein. [", "canonical_name": "Fakhruddin"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3977, "end_char": 3997, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated October 10, 1969 of the Allahabad High Court in Criminal Rev.\n\nNo."}}, {"text": "R. K. Bhatt", "label": "OTHER_PERSON", "start_char": 4051, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and R. K. Bhatt, for the appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 4087, "end_char": 4094, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4160, "end_char": 4163, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by DuA, J. : This appeal by special leave is directed against the judgment and order of a learned Single Judge of the Allahabad High Court dated October 6, 1969 dismissing the appellant's revision from the order of a II Temporary Sessions Judge, Kanpur dated November 8, 1967 dismissing his appeal from his conviction by a learned Magistrate under ss."}}, {"text": "ss. 384", "label": "PROVISION", "start_char": 4505, "end_char": 4512, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4517, "end_char": 4522, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mannu", "label": "PETITIONER", "start_char": 4596, "end_char": 4601, "source": "ner", "metadata": {"in_sentence": "On August 15,1964, Mannu, a boy about 5 years old, was found missing from the house of the appellant's relation Shri Gajendra Natth (P.W. 19), an Excise Inspector, residing in Mohalla Ashok Nagar, Kanpur within the jurisdiction of police station Sisamau the following day."}}, {"text": "Gajendra Natth", "label": "WITNESS", "start_char": 4694, "end_char": 4708, "source": "ner", "metadata": {"in_sentence": "On August 15,1964, Mannu, a boy about 5 years old, was found missing from the house of the appellant's relation Shri Gajendra Natth (P.W. 19), an Excise Inspector, residing in Mohalla Ashok Nagar, Kanpur within the jurisdiction of police station Sisamau the following day."}}, {"text": "Kanpur", "label": "GPE", "start_char": 4774, "end_char": 4780, "source": "ner", "metadata": {"in_sentence": "On August 15,1964, Mannu, a boy about 5 years old, was found missing from the house of the appellant's relation Shri Gajendra Natth (P.W. 19), an Excise Inspector, residing in Mohalla Ashok Nagar, Kanpur within the jurisdiction of police station Sisamau the following day."}}, {"text": "21-8-1964", "label": "DATE", "start_char": 5158, "end_char": 5167, "source": "ner", "metadata": {"in_sentence": "Ka-1) bearing post office seals dated 21-8-1964 and later an inland letter (Ext."}}, {"text": "October 21, 1964", "label": "DATE", "start_char": 5224, "end_char": 5240, "source": "ner", "metadata": {"in_sentence": "Ka-2) bearing the date October 21, 1964 were received by Gajendra Nath demanding, in the first letter a ransom of Rs."}}, {"text": "Gajendra Nath", "label": "OTHER_PERSON", "start_char": 5258, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "Ka-2) bearing the date October 21, 1964 were received by Gajendra Nath demanding, in the first letter a ransom of Rs."}}, {"text": "Yashpal Singh", "label": "OTHER_PERSON", "start_char": 5457, "end_char": 5470, "source": "ner", "metadata": {"in_sentence": "the local I.T.I., Kanpur, Yashpal Singh by name, after reading the announcement of the reward.. made attempts to trace the whereabouts of the missing child."}}, {"text": "January 11, 1965", "label": "DATE", "start_char": 5713, "end_char": 5729, "source": "ner", "metadata": {"in_sentence": "Thereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur."}}, {"text": "Rahasbehari", "label": "OTHER_PERSON", "start_char": 5757, "end_char": 5768, "source": "ner", "metadata": {"in_sentence": "Thereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur."}}, {"text": "Ganga Bux Singh", "label": "PETITIONER", "start_char": 5820, "end_char": 5835, "source": "ner", "metadata": {"in_sentence": "Thereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur.", "canonical_name": "Ganga Bux Singh"}}, {"text": "Chandrabushan Singh", "label": "PETITIONER", "start_char": 5840, "end_char": 5859, "source": "ner", "metadata": {"in_sentence": "Thereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur.", "canonical_name": "Chandrabushan Singh"}}, {"text": "Pandeypur District", "label": "GPE", "start_char": 5871, "end_char": 5889, "source": "ner", "metadata": {"in_sentence": "Thereupon, on January 11, 1965 the child was recovered by Rahasbehari, the grand-father of the child, from\n\nthe house of Ganga Bux Singh and Chandrabushan Singh in village Pandeypur District Kanpur."}}, {"text": "Ram Narain", "label": "PETITIONER", "start_char": 5957, "end_char": 5967, "source": "ner", "metadata": {"in_sentence": "The investigation of the case revealed that the appellant, Ram Narain, was also responsible for kidnapping and wrongfully confining the said child and that it was be who had sent the two anonymous letters (Exts.", "canonical_name": "RAM NARAIN"}}, {"text": "ss. 363, 468 and 384", "label": "PROVISION", "start_char": 6186, "end_char": 6206, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6212, "end_char": 6217, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ganga Bux Singh", "label": "PETITIONER", "start_char": 6246, "end_char": 6261, "source": "ner", "metadata": {"in_sentence": "363, 468 and 384/511, I.P.C.\n\nThe trial court convicted Ganga Bux Singh and Chandrabusban Singh under s. 368, I.P.C.' and Ram Narain appellant under ss.", "canonical_name": "Ganga Bux Singh"}}, {"text": "Chandrabusban Singh", "label": "PETITIONER", "start_char": 6266, "end_char": 6285, "source": "ner", "metadata": {"in_sentence": "363, 468 and 384/511, I.P.C.\n\nThe trial court convicted Ganga Bux Singh and Chandrabusban Singh under s. 368, I.P.C.' and Ram Narain appellant under ss.", "canonical_name": "Chandrabushan Singh"}}, {"text": "s. 368", "label": "PROVISION", "start_char": 6292, "end_char": 6298, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6300, "end_char": 6305, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 384", "label": "PROVISION", "start_char": 6339, "end_char": 6346, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6352, "end_char": 6357, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "II Temporary Sessions Judge, Kanpur", "label": "COURT", "start_char": 6409, "end_char": 6444, "source": "ner", "metadata": {"in_sentence": "384/511, I.P.C.\n\nOn appeals by the convicted persons, the learned II Temporary Sessions Judge, Kanpur, came to the conclusion that the offence under s. 368, I.P.C. had not en established beyond reasonable doubt with the result that Ganga Bux Singh and Chandrabushan were acquitted."}}, {"text": "s. 368", "label": "PROVISION", "start_char": 6492, "end_char": 6498, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6500, "end_char": 6505, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chandrabushan", "label": "PETITIONER", "start_char": 6595, "end_char": 6608, "source": "ner", "metadata": {"in_sentence": "384/511, I.P.C.\n\nOn appeals by the convicted persons, the learned II Temporary Sessions Judge, Kanpur, came to the conclusion that the offence under s. 368, I.P.C. had not en established beyond reasonable doubt with the result that Ganga Bux Singh and Chandrabushan were acquitted.", "canonical_name": "Chandrabushan Singh"}}, {"text": "ss. 384", "label": "PROVISION", "start_char": 6686, "end_char": 6693, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6699, "end_char": 6704, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R. A. Gregory", "label": "OTHER_PERSON", "start_char": 6916, "end_char": 6929, "source": "ner", "metadata": {"in_sentence": "The appellant having categorically denied bis authorship of those letters, Shri R. A. Gregory, a hand-writing expert was produced in support of the presecution case."}}, {"text": "ss. 45, 47 and 73", "label": "PROVISION", "start_char": 8018, "end_char": 8035, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 8043, "end_char": 8062, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 45", "label": "PROVISION", "start_char": 8100, "end_char": 8105, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 4", "label": "PROVISION", "start_char": 8110, "end_char": 8114, "source": "regex", "metadata": {"statute": null}}, {"text": "Kohli", "label": "OTHER_PERSON", "start_char": 10337, "end_char": 10342, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nKohli urged that Ex."}}, {"text": "Tahir Ali", "label": "WITNESS", "start_char": 10509, "end_char": 10518, "source": "ner", "metadata": {"in_sentence": "The evidence of Tahir Ali, P.W.14 which has been relied upon is not definite on this point."}}, {"text": "Chhota Lal Patni", "label": "OTHER_PERSON", "start_char": 11332, "end_char": 11348, "source": "ner", "metadata": {"in_sentence": "Our avtention was invited B to Chhota Lal Patni's case (supra) where it is observed :-\n\n\"A Court is competent to compare th\\: disputed writing of a person with others which are admitted or proved to be his writings."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 11846, "end_char": 11851, "source": "regex", "metadata": {"statute": null}}, {"text": "Shashi Kumar", "label": "OTHER_PERSON", "start_char": 13169, "end_char": 13181, "source": "ner", "metadata": {"in_sentence": "Reference was also made by the appellant's counsel to Shashi Kumar (supra) where it is observed that the expert evidence as to' hand-writing is opinion evidence and it can rarely, if ever, take\n\nthe place of subl>tantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence."}}, {"text": "FakhruddJn", "label": "OTHER_PERSON", "start_char": 15647, "end_char": 15657, "source": "ner", "metadata": {"in_sentence": "In the High Court also the learned Single Judge, a.f'ter referring to the decision in FakhruddJn (supra), observed as follows :-\n\n\"I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters.", "canonical_name": "Fakhruddin"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 17551, "end_char": 17562, "source": "regex", "metadata": {"statute": null}}, {"text": "April 17, 1967", "label": "DATE", "start_char": 17747, "end_char": 17761, "source": "ner", "metadata": {"in_sentence": "He was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as 1964."}}]}
{"document_id": "1973_3_918_936_EN", "year": 1973, "text": "ROSY JACOB\n\nJACOB A. CHAKRAMAKKAL April 5, 1973\n\n[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]\n\nGuardians and Wards Act, 1890, Sec. 25-Husbond's application for the custody oj children-Welfare of the children is the dominant consi deration.\n\nOn the wife's application, judicial separation was granted under the Indian Divorce Act by the single Judge of the High Court. The custody of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent Appeal preferred by the husband, the Division Bench varied the order directing handing over the custody of the daughter and the youngest son also to the husband.\n\nThe principal question before the Court was whe ther the husband's application for the custody of the children u/s 25 of the Guardian and Wards Act, 1890, was maintainable and, if so, what are the considerations which the Court should bear in mind in exercising the discretion regardin11 custody of children.\n\nAllowing the appeal, HELD : (i) On the facts and circumstances of the case, namely, that the Court cannot make any order under the Divorce Act, as the daughter had attained majority, and no guardian could be appointed u/s. 19 of the Guardians and Wards Act, 1890 during the life time of the existing guardian, husband's application was competent.\n\nWelfare of the children is the primary consideration, and hyper-technicalities should not be allowed to deprive the guardian necessary assistance from the Court in effectively discharging his duties and obligations towards his ward. l932D]\n\n(ii) The controlling consideration g0veming the custody of the children is the welfare of the children concerned and not the right of their parents.\n\nThe Court while exercising the discretion should consider all relevant facts and circumstances so as to ensure the welfare of the children.\n\nThe contention that if the husband is not unfit to be the guardian of his minor children. then the question of their welfare does not at all\n\narise, is misleading.\n\nIf the custody of the father cannot promote the children's welfare, equally or better. than the custody of the mother, then. he cannot claim indefeasible right to their -custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has.\n\nAs the daughter has just attained puberty and the youngest son was of the tender age, in the interest of their welfare, the mother should have the custody in preference to the father.\n\n.[933DJ • CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295 & 1296 of 1972.\n\nAppeals by special leave from the judgment and order dated April 26, 1972 of the Madras High Court in O.S.A. Nos. 2 and 3 of 1971. 918\n\nA K. N. Balasubramanian and Lily Thomas, for the appellant.\n\nThe respondent appeared in person.\n\nThe Judgment of the Court was delivered by\n\nDUA, J.-The real controversy in these two appeals by special leave preferred by the wife against her husband, lies in a narrow compass.\n\nThese appeals are directed against the judgment and order of a Division Bench of the Madras High Court allowing the appeals by the husband and dismissing the cross-objections by the wife from the judgment and order of a learned single judge of the same High Court dismissing aout 25 applications seeking diverse kinds of reliefs, presented by one or the other party. According to the learned single Judge (Maharajan J.) \"these 25 applications represent but a fraction of the bitterness and frustration of an accomplished Syrian Christian couple who after making a mess of their married life have endeavoured to convert this Court into a machinery for wreaking private vengeance\". This observation reflects the feelings of the husband and the wife towards each other in the present litigation. The short question which we are called upon to decide relates to the guardianship of the three children of the parties and the solution of this problem primarily requires consideration of the welfare of the children.\n\nThe appellant, Rosy Chakram.akkal (described her~ as wife) was married to respondent Jacob A. Chakramakkal (described herein as husband) sometime in 1952.\n\nThree children were born from this wedlock. Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Maheshalias Thomas was born in 1961. Sometime in 1962 thel wife started proceedings for judicial separation (O.M.S. 12 of 1962) on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 19~.\n\nSadasivam J., while granting the decree directed that Ajit alias Andrews. (son) the eldest child should be kept in the custody of the husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of\n\nthe wife. The husband was directed to pay to the wife Rs. 200/- per mensem towards the expenses and maintenance of the wife and the two children. The wife applied to Sadasivam J., sometime later for a direction that Ajit alias Andrews should also be handed over to her or in the alternative for a direction that the boy should be admitted in a boarding school. In this application (no. 2076 of\n\n1964) it was alleged by the wife that the husband hud beaten Ajit on the ground that he had accepted from his mother (the wife) a fountain pen as a present. This was denied bly the husband but the learned Judge, after elabrote enquiry, held that he had no doubt that the husband had caused injuries to the boy on\n\naccount of his sudden out burst of temper on learning that Ajit had received a fountain pen by way of present from his mother on his birth day.\n\nAj~ was accordingly to be handed over to the mother subjected to certain conditions.\n\nThe husband preferred an appeal against the decree made in O.M.S. 12 of 1962 (O.S.A. 65 of 1964) and another appeal againstthe order made by Sadasivam J., (in application no, 2076 of 1964 in O.M.S. 12 of 1962) directing the custody of the eldest son Ajit to be handed over to the wife (0.S.A. 63 of 1964).\n\nOn August 2, 1966 the appellate blench confirmed the decree for judicial separation granted by Sadasivam J., and also issued cer, tain directions based on agreement of the parties with respect to the custody of !he children, as also reduction of the monthly maintenance payable by the husband to the wife from Rs. 200/- to Rs. 150/- p.m., inclusive of maintenance payable for Mahesh.\n\nAccording to this order the eldest boy Ajit alias Andrews directed to remain in the custody of the father and to be educated by him at his expense : Mahesh alias Thomas was directed to be in the custody of the mother to be educated at her expense: and the second child Maya alias Mary was directed to be put in a boarding school, the expenses of her t1oard and education to be met in equal shares by both the parents. The husband also undertook that 'he will arrange to have the presence of his mother or sister at his residence to attend to the children whenever they are with him and never to leave the chilren alone at his residenee or to the care of his servants or others\". Later both the husband and wife presented a series of applications in !he appellate court seeking modifications of its directions.\n\nThat court ultimately made an order on February 2. 1967 modifying its earlier directions.\n\nThe modified order directed Maya to be left in the exclusive custody of !he wifo who was al liberaty to educate her in the manner she thought best at her own cost. The appellate court also modified the direction regarding maintenance and ordered that the husband should pay to tlie wife maintenance at !he rate of Rs. 200 /- p.m. as awarded by the learned single judge.\n\nSubsequently the directions of the appellate court regarding access of the mother and the fatlter to the children were also sought by !he parties to be modified to the prejudice of each other.\n\nThe matters are stated to have been heard by most of the Judges of the Madras High Court at one stage or !he other and according to Maharajan J., the parties even tfied to secure transfer o; f these proceedings by making wild allegations of partiality against some of the Judges.\n\nThe husband who is an advocate of the Madras High Court, had, according to the wife, been filin~ cases systematically against her and the wife. who, in the opinion of Maharajan J., has the gift of the gab also argued her own cases.\n\nThe children for whose\n\nweliare the parents are supposed to have been fighting as observed\n\nby Maharajan J., are given a secondary consideration and the quarrelling couple have lost all sense of proportion. On account of these considerations the learned single Judge felt that it would be a waste of public time to consider in detail the trivialities of the controversy pressed by both the parties to this litigation. According to the learned single Judge the following four points arose for his judicial determination'.\n\n\"(l) Whether by defaulting to pay the maintenance decreed, the husband must be held guilty of contempt and shall not be allowed to prosecute his applications before. he purges himself of contempt?\n\n(2) What is the proper order to pass as regards the custody of the three children of the marriage in the light of the events that have occurred subsequent to the judgement of the appellate court and under the Guardians and Wards Act ?\n\n(3) What is the proper order to pass as to the access of either parent to the children in the custody of the other?\n\n( 4) Whether in the light of the subsequent events, the order regarding maintenance allowance should be reduced, enhanced or altered in any manner and if so, how?' On the first point the learned single Judge came to the conclusion that the husband could not be declined hearing merely because he had not paid the maintimance as directed by the matrimonial court. The amount yi respect of which the husband had defaulted payment could be recovered through execution proceedings. On point no. 2 the learned single Judge proceeded to F consider the question of the cutody ol the three children with the preliminary observation that the controlli.ng factor governing their custody would t!e their welfare and not the riehts of their parell\\s. The eldest child Ajit alias Andrews, according to the learned Judge, was doing well at the school and was progressing\n\nsatisfactorily both metally and physically. There was accordingly G no reason to transfer his custody from his father to his mother.\n\nAs regards the second child Maya alias Mary, as she was about to attain puberty and the wife being anxious that till she got married she must be in the monther's vigila'lt and affectionate custody she was to remain with her mother. Mahesh alias Thomas, who was considered to be of tender years and in the formative H stage ol life requiring sense Of emotional security which a mo'her alone could give, was also kept in the custody of his mother. With resnect to Maya and Mahesh it was further observed that from their educational point of view the wife was a more suitable l 1-L797Sup.CI/73\n\ncustodian than the husband because she was running a primary school from nursery to fifth standard with more than a hundred pupils and was also residing in a portion of the school premises enjoying certain facilities in her capacity as the founder and principal of that school.\n\nThe husband, who was described as a grass widower without fomale relatives to look after the children, was not preferred to the wife as, while being with her, the children would bl.) living in an academic atmosphere. With respect to the husband's complaint that from the moral point of viw the wife was not fit to have the custody of the children, Maharajan J., observed that earlier Sadasivam J., had dealt with the entire evidence relating to <this charge and had found no sufficient ground for such imputations and that they were likely to cause mental pain to the wife and affect her health.\n\nThe husband had even been held guilty of mental and moral cruelty to the wife.\n\nThe husband's contention that his opinion was reversed by the appellate bench was disposed of by Maharajan J., after quoting the followinl( passage from the appellate judgment dated August 2, 1966 :\n\n\"But it is to be clearly understood that there should be no slur on the part of either the appellant or the respondent because of the several proceedings in court and other happenings outside. The decree or judicial separation which is confirmed does not cast any cloud on the reputation or character of the husb!and or the wife. They have reached this settlement keeping in view all the circumstances and particularly the welfare of their minor children.\" According to Maharajan 3., the appellate bench had felt satisfied that the charge of immorality levelled by the husband against the wife was not established because had it not been so satisfied the bench would not have entrusted two of the three children to the wife.\n\nThe husband was in the circumstances held by Maharaian J.. disentitled to reopen the question of the wife's immorality. In any event, Maharajan J., also rejeoted the charge of immorality as unproved, for the same reasons which had weighed with Sadasivam J. With respect to point no. 3 the learned single Judge gave the rollowi.ng directions :\n\n\"( 1) On the first Sunday of every month, exceot during the school vacations, the husband shall send Ajit\n\nalias Andrews to the wife bv 8.00 a.m. and the wife shall send back the child by 8. p.m. the same day.\n\n(2) The wife shall send Mava alias Mary and Thomas alias Mahesh to the husband's bv 8 a.m. on the last Sunday of every month, except during the school vacations, and the husband shall send them back by 8 p.m. the same day.\n\n( 3) Each party shall send the children by a conveyance taxi, rickshaw or \"f?us, after prepaying the fare thereof. ·\n\n( 4) The wife shall send Mary alias Maya and Thomas alias Mahesh to the husband, so hat they might stay with him and Ajit alias Andrews for thirty days during the summer vacation. The exact time and dates of departure .and arrival will be fixed with reference to the convenience or parties and after change of letters between them at least one months prior to the commencement of the vacation. Likewise, the husband will send Ajit to the wife to enabile him to spend the whole Dasara and Christamas vacations in the company of his mother, sister and brother.\"\n\nOn the fourth point the learned single Judge, fater considering . at length the wife's allegations against the husband with rAp.:ct\n\nto his extravagance and inability, reduced the quantum of maintenance pa¥able by him to the wife to.Rs. 100/- p.m., the reduced amount being payablle with effect from January 1, 1971. The husband was directed to pay the monthly maintenance on or before . the 10th of the succeeding month. This order was made with the observation that the earning. capacity of the wife was superior to that of the husband.\n\nIt is unnecessary to refer to the formal orders separately passed in the various applications .. Suffice it to say that the parties were left to bear to their own costs and hope was expressed in the concluding para of the judgment by Maharajan, J. that \"the parties will refrain from rushing to this court with applications of the kind that have b!een dismissed and will apply themselves as, iduously to the improvement of their status in <their respective professfons and to alleviation of the pain of material failure, which ha' unfortunately been visited upon the three lovely and sprightly children 1hat they have produced.\" ·\n\nContrary to the hope expressed by learned Judge, the matter wa5 taken to the appellate bench of the High Court under cl• 15 ol\n\nthe Letters Patent (0.S. Appeal Nos. 2 and 3 ofAi\"). The wife also pressented cross-objections against the reduction of alimony and against directions as regards the father's access of Maya.\n\nA large number of applications were presented to the Court parties praying for diverse reliefs including action for contempt of court for disobedience of the court's orders. The hearing of the appeals somewhat surprisingly lasted for more than a year (March 1971 to March 1972). We find no justification for such prolonged hearing on a fairly simple matter like this. According to the Letters Patent Bench the arguments on boh sides. \"mainly\n\nrested upon the character of each\". The husband is said to have repeatedly accused the wife with immorality. ln the opinion of the Letters Pantent Bep.ch ''the truth or otherwise of the matter may assume importance only for the purpose of deciding upon the fitness of the person to be the guardian of the children\". Final orders were passed on April 26, 1972 by means of which the husband was held to be bellter fitted to be the guardian of the three children and to have their custody. This decision was stated to be based on evidence and in view of ss.17, 19 and 25 of the Guardians and Wards Act.\n\nThis is what one of the Judges constituting the Letters Patent Bench ( Gokul Krishnan, J ., ) said in this connection :\n\n\"In our opinion, the principles to be applied to cases of this kind will be the same both under the Indian Divorce Act and the Guardians and Wards Act, 1890.\n\nBut since the father has specifically filed a petition, O.P.\n\nNo. 270 of 1970, under section 25 of the Guardians and Wards Act, and that being a special law for the purpose will certainly apply, we shall concentrate on the Guardians and Warc!S Act, 1890\".\n\nAfter quoting s. 19 of the Guardians and Wards Act the learned Judge proceeded :\n\n\"It is thus clear that the special enactment difinitely states that the father is the guardian of the minor until he is found unfit to be the guardian of the person of the minor.\n\nThe welfare of the minor is the paramount consideration in the matter of apointing guardian for the person of minor, and cannot be said to be in conflict with the terms of section 19 of the Guardians and Wards Act which recognize the father as the guardian. Bearing this in mind, we proceed to consider as to who is fit and proper to be the guardian for the person of the minor children in this case.\" In his view the principle on which the Court should decide the fitness of the guardian mainly depends on two factors : ( i) the father's fitness or otherwise to be the guardian and (ii) the interests of the minors. Considering these 'factors it was felt that both the parties in the present case loved their children . who were happy during their stay with both of their parents.\n\nThere was in his view, absolutely no proof as regards disqualificatioo of. the husband to be the guardian of the minor children. It may here be pointed out that both the Judges constituting the Letters Patent Bench wrote separate judgments.\n\nGokulakrishnan J., commenting on the Judgment of Maharajan J., observed thus :\n\n\"Maharajan J. in his judgment under appeal no doubt referred to section 19 of the Guardians and Wards Act, but would observe that if the Court finds that the\n\nwelfare of -the minor children could be protected only in the maternal custody, the Court has power to put the children in the care oJ' custody of the mo!her. The learned Judge clearly observed that Ajit, the eldest boy, who is in the custody of the appellant, is quite healthy' and cheerful, doing well at school and that his sojourn with the father has not prejudicially affected him physically or mentally. But at the same breath, the learned Judge says that Maya and Mahesh 'are of tender years and in the formative stage of their life and need a sense of emotional security, which a mother alone can give.' In the case of Maya and Mahesh, the learned Judge has applied a different standard in regard to ilieir custody.\n\nConsidering the present age of l:/oth Maya a'ld Mahesh and taking into consideration lhe upbringing of Ajit by the appellant having him in his custody, we are of the view that the same amount of sense of emotional security can be enjoyed by Maya and Mahesh at the hands of 1he appellant also.\n\nThe learned Judge's reasoning that the mother is running a school and has also facilities to make 1hese two children live in the academic atmosphere rather than with their father, cannot have any.force in view of the clear and categorical principles laid down in the various decisions noticed\n\n(supra) and also in view of the clear intendment and spirit of the Guardians and Wards Act, which prescribes that father is the guardian of his minor child unless otherwise found unfit.\n\nThe academic qualificatioin of the mother, her financial status and the o1her standards cannot at all wiegh in the matter when lhe appellant has not been rejected as a person unfit to be the guardian of the minors. If they should weigh, the poorer and affectionate father with moderate capacity to protect his children will be deprived of the custody of the minor children on the flimsy ground of 'welfare of the minor children'. That is how and why lthe welfare of the minor children' must be read with 'fitness or unfitness of the father to be guardian of ihe minors.\n\nOnce it is found that the father is the fit and proper person to be 1he guardian of his minor children, unless it is otherwise found that he is not fit, it must be presumed that the children's interests will be properly protected by the father. As far as the present case is concerned, when the trial court itself has found that Aiit has been properly looked after and brought uo very well in his academic career by the appellant. there cannot bre any difficulty in coming to the conclusion that Maya and\n\nMahesh will also be looked after and protected and imparted with proper educirtion by the affectionate father, the appellant.\"\n\nAfter reproducing certain observations from the judgment> of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy L\n\n(<1s he then was) and Krishnaswami Reddy J., dated Februarv 12. 1967 in C.M.P. 415 in O.S.A. nos. 63 & 65 of 1969, Rarnamurt1 .I., dated April 24, 1968 in application nos. 769 and 770 of 1968 in O.M.S. 12 of 1962 and after referring rto the view of Maharajan J., that Ajit when produced in Court was found quite healthy and cheerful and was doing well at school, Venkataraman J. in his concurring judgment observed thus :-\n\n\"Regarding the other children, he gave their custody to the mother, because he thought that they were of tender years and needed emotional security which a mother alone could give.\n\nHere, with respect we must differ from the learned Judge. We find that the .father is quite frt 'to have the custody of the children, and, in law, custody of the minor children cannot be refused to him.\n\nWe are also satisfied from what we saw of the appellant arnd heard from him during the several hearings, that he is very deeply attached to his children and is quite competent to have their custody. It will be enough if the mother is allowed a somewhat liberal access to the three children.\"\n\nWith respect to alimony the appellate bench concluded that the wife was mnaging her school verv successfui'y; she had purchased a mini-bus and also possessed we•t lands in her village.\n\nThe husband on the other hand was not getting on well in his profession which he attributed to the present litiation : his house at Adyar was stated to be under mortgage and he had practically sold everything in his native village with the exception o.f one or one-and-half acres of land. In view of the financial position of the wife and the husband and in view of the fact that all the !hree children were to be in the custody of the husband the appellate bench considere~ it unnecessary for the husband to pay any maintenance to the wife.\n\nThe payment of the arrears of alimony was also suspended as the apnellate bench c0nsidered itself empowered to do so under the proviso to s. 37 of the Indian Divorce Act.\n\nIn so far as access of the wife to the children is concerned a detailed order was passed bv the ench about the right of the wife to take the daughter with her dming the summer and Christmas vacations and also during several days every month, particularly during the periods. We do not consider it necessary to state in full the details of that order. With respect to A.iit and\n\nMahesh also a detailed order was made fix\\ng the precise. days and even time when the wife could bring the children from the father .to stay with her.\n\nIn the event of any difficulty in ge,, mg custody of the children from the wife, it was ordered at the instance of the husband that he could take the police help on the strength of the High Court judgment.\n\nWe find it extremeldillicult. to appreciate this direction.\n\nOrders from the Court execution would have been more appropriate. Police intervention in su7h\n\npersonal domestic differences in tlle present case where prties belong to educated respectable families should have been avoided.\n\nIn this Court a preliminary objectiQll to die hearing of the wife's appeal was raised by the husband, who, being an advocate, personally addressed us in opposing these appeals.\n\nIndeed in June, 1972 he had presented Civil Miscellaneous Petitions Nos. 4188 and 4189 of 1972 for revolting special leave and it was these applications which he pressed before us at ihe outset. These lengthy applications covering nearly 50 pages mainly contain arguments on the merits and there is hardly any cogent ground made out justifying revocation of the special Je.ev~ T• ; no doubt open to this Court to revoke special leave when : ; '\"' . .; that special leave had been secured by the appellant on deliberate misrepresentation on a mterial point having a bearing on the\n\nquestion of granting such leave. The extraordinary discretionary power vested in this Court by the Constitution under Act, 136 js\n\nin the nature of a special residuary power exercisable in its judicial discretion outside the purview of ordinary law in cases where the needs of justice demand interference.\n\nBeing discre tionary power intended only to promote the cause of justice when there is no other adequate remedy, this Court expects those seeking resort to this reserve of constitutional power for securing justice to be absolutely fair and frank with this Court in correctly stating the relevant facts and circumstances of the case.\n\nIn the event of a party making a misrepresentation on a point having a bearing on the question of the exercise of judicial discretion and thereby trving to over-reach this Court the party forfeits the claim to the discretiooary relief : the same is the case when such misrepresentation is discovered by this Court and brought to i'ts notice after the grant of snecial Jeave and this Court is comnetent and indeed it considers it proper to revoke the special leave thm obtained. But the misrepresentation must be deliberate and on a point havinl( such relevance to the question of special leave that if true facts were known thi< Court would hove in all probabilitv declined special leave.· Applying this test to the pre; ent case we ai:e\n\nunable to find anv such deliberate misrenresentation bv the appellant indicating intention to mislead or over-reach this Court.\n\nThe points to which our attention was drawn seem to relate to the merits of the controversies between the parties which would fall for\n\ndetermination on the hearing of the appeal after considering the arguments pro and con. The preliminary objection thus fails and must be disallowed.\n\nTurning to the merits of these appeals, it may be pointed out :hat with the exception of O.P. No. 270 of 1970 filed by the husband under s. 25 of the Guardians and Wards Act all the other applications presented by the parties and disposed of by Maharajan J., were off-shoots of O.M.S. 12 of 1962 in which the wife had obtained a decree for judicial separation. The first contention raised on behalf of the appellant was that O.P. No. 270 of 1970 did not lie. It was strenuously pressed by Shri Balasubaramania Iyer the\n\ncounsel for the appellant wife that the husband's application under s. 25, Guardians and Wards Act was not competent because none of the children had been illegally removed from the lawful custody of their father, the custody of the two children having been lawfully entrusted to the wife in proceedings to which the husl:iand was a party. It was emphasised in this connection that the custody o.f the girl Maya and of the boy Mahesh had been lawfully entrusted to the wife by a competent Court and unless there is actual physical removal of the children from the custody of the father, s. 25 would not be a(tracted.\n\nNow the first .thing to be notified is that this objection as to the competence of the application under s. 25 is in the nature of a preliminary obuectian. But it was nCJI! raised either before the learned single Judge or before the Letters Patent Bench in the manner in whlch it is pressed before us. In this Court also in the special leave appeal the objection seems to be based on the argument that the Guardians and Wards Act would be inapplicable to cases where orders have been made in matrimonial proceedings, and s. 19 of the Guardians and Wards Act cannot control the custody of chlldren given by a consent decree under the Indian Divorce Act.\n\nHowever, as the objection was stated to pertain to jurisdiction we allowed the parties to address us on this point.\n\nFor determining the question of coinpetence of the husband's application under s. 25 of the Guardians and Wards Act (18 of\n\n1890) it is necessary to examine the scheme of that Act as also the relevant provisions of the Indian Divorce Act. The Guardians and Wards Act was enacted in order to consolidate and amend the law relating to Guar<lian and Ward. But as provided by s.3, this Act is not to be construed, inter alia, •to take away any power possessed by any Rich Coutt.\n\nAccording to s.4, which is the definition section, a \"minor\" is a person who, under the provisions\n\nof the Indian Maiority Act, 1875 is to be deemed not to have attained his majority.\n\nUnder s. 3 of that Act this age is fixed at 18 years, except for those, for whose person or property or both\n\na guardian has already been appointed by a court of justice (other than a guardian for a suit under Chapter XXXI, C.P .C.) and for whose property, superintendence has been assumed by a Court of Wards, for whom it is fixed at 21 years. A \"ward\" under this Act means a minor for whose person or property or both there is a guardian and \"guardian\" is a person having the care of the person of a minor or of his property or both. Chapter II of !his Act ( 18 of 1890), consisting of ss.5 to 19 ( s. 5 applicable to, European British subjects has since been repealed), deals with the Appointment and Declaration of Guardians. Section 7 empowers !he Court to make orders as 10 guardianship where it is satisfied that it is for the welfare of the minor that an order should be made appointing his guardian or declaring a person to be such guardian. Section 7 ( 3) places certain restrictions with respect to cases where guardians have been appointed by will or other instrument or appointed or declared by court.\n\nSection 8 provides for persons entitled to apply under s. 7 : they include\n\nCollectors as specified in els. ( c) and ( d).\n\nSections 9 to 11 provide for jurisdictioo of courts, form of applications and proce\n\ndure on admission ol\" applications.\n\nSection 12 provides for interlocutory orders subject to -certain restrictions. Next importam sections are ss. 17 and 19.\n\nSection 17 which provide& for the matters to be ccinsidered biY the court in appointing or declaring guardioo reads :\n\n\"17. Matters to be considered by the Court in appointing guardian.\n\n(1 ) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor. is subject, .appears in the circumstances to be for the welfare of the minor.\n\n( 2) In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.\n\n( 3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.\"\n\nSection 19, which prohibt the Court from appointing guardians in certain cases, reads :\n\n\"19. Guardians not to be appointed by the Court in certain cases :\n\nNothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or delcare a guardian of the person.\n\n(a) of a minor who is '\\ married female and whose husband is not, in the opinion of the Court, unfit to tie\n\nguardian of her person, or\n\n(b) of a minor whose father is living and is not, in the opinion of the Court, 1mfit to be guardian of the person of the minor, or ( c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.\"\n\nChapter III ( ss. 20 to 42) prescribes duties, rights and liabilities of guardians. Sections 20-23 (General provisions) do not concern us. Section 20 provides for the fiduciary relationship of guardian towards his wards and s. 22 provides for remuneration of guardians appointed or declared by the Court.\n\nSections 24 to 26 deal with \"Guardian of the person\". Under s. 24 the guardian is bound, inter alia, to look to his ward's support, health and education.\n\nSection 25 which is of importance for our purpose provides for \"Title of Guardian to custody of Ward\" and reads :\n\n\"25. Title of guardian to custody of ward :\n\n(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.\n\n(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882. ( 3) The residence o.f a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.\"\n\nSections 27 to 37 deal with \"Guardian's Property\" and Sections 38 to 48 deal with \"Termination of Guardianship\". Chapter IV ( ss. 43 to 51) is the last chapter dealing with supplementary provisions.\n\nNow it is clear from the language of g, 25 that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the Count is empowered to make an order for the return of the ward to his guardian if it is of opinion that it will be for the welfare of the war<l to return to the custody of his guardian.\n\nThe Court is entrusted with a .iudicial discretion IO order re-turn of the Ward to the custody of his guardiain, if it forms an opinion that such return is for the ward's welfare. The use of the words \"ward\" and \"guardian\" leave little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law.\n\nIt is not diuted that, as already noticed, the Court dealing with the proceedings for judicial separation under the Indian Divorce Act, (4 of 1869) had made certain orders with respect to the custody, mai•ntenancc and education of the 'three children of the parties.\n\nSection 41 of the Divorce Act empowers the Court to make interim orders with respect to the minor children and also to make proper provision to that effect in the decree : s. 42 empowers the Court to make similar orders upon application (by petition) even after the decree.\n\nThis section expressly embodies the legislative recognition of the , fundamentol rule that !he Court as representing the State is vested with the power as also the duty and responsibility of making\n\n>uitable orders for the custody, maintenance and education of the minor children to suit the changed conditions and circumstances.\n\nIt is, however, noteworthy that under Indian Divorce Act the sons of Indian fathers cease to be minors on attaining the age of 16 years and !heir daughters cease to be minors on attaining the age of 13 years: s. 3(5). The Court under the Divorce Act would thus be incompetent now to make any order under ss. 41 and 42 with respect to the elder son and the\n\ndauhter in the present case.\n\nAccording to the respondenthusband under these circumstances he cannot approach the Court under the Divorce Act for relief with respect to the custody of these children and now that those children have ceased to be minors under that Act, the orders made by that Court have also lost their vitality On this reasoning the husband claimed the right to invoke s. 25 of the Guardians and Wards Act : in case this section is not applicable, then the huslland contended that his application (0.P. 270 of 1970) hould be treated to be an application under s. 19 of the Guardians and Wards Act or under auy other competent section of that Act so that he could get the custody of his children, denied to him by the wife.\n\nThe label on the application, he argued, should be treated as\n\na matter of mere form and, therefore, immaterial. The appellant's counsel on the other hand contended that the proper procedure for the husband to adopt was to apply under s. 7 of the Guardians and Wards Act. Such an application, if made, would have been tried in accordance with the provisions of that Act. The counsel added that ss. 7 and I 7 of that Act also postulate welfare of the minor in the circumstainces of the case, as the basic and primary consideration for the Court to keep in view when appointing or declaring a guardian.\n\nThe welfare of the minors in the present case, according to the wile, would be best served if they remain in her custody.\n\nIn our opinion, s; 25 of the Guardians and Wards Act corrtemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories or guardians. The ob/iect and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal i!fterpretation so as to effectuate that object.\n\nHyper-technicalities should not be allowed to deprive the guardian lhe necessari assistance from the Court in effectivtily discharging his duties and obligations towards his ward so as to promote the latter's welfare. If the Court under the Divorce Act ca, nnot make any order with respect\n\nto the custody of Ajit'alias Andrew and Maya alias Mary and it 'is not open to the Court under tlle Guardians and Wards Act to appoint or declare guardian of the person of his children under s. 19 during his life-time, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is s. 25.\n\nWithout, therefore, laying down exhaustively the circumstances in which s. 25 can be invoked. in our opinion, on the facts and circumstances of this case the\n\nhusband's application under s. 25 was competent with respect to the two elder children.\n\nThe Court entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With resoect to Mahesh alias Thomas. however, the Court under the Divorce Act is at pre.sent empowered to make suitable orders relating to his custody, maintenance and education.\n\nIt is, therefore, somewhat difficult to impute to the legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act.\n\nWe are unable to accede to the respondent's suggestion that his application should be considered to have been nreferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed\n\nby Maharaj an J., with which observation we entirely agree, \"the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents\". h was not disputed that under the Indian Divorce Act this is the controlling consideration.\n\nThe Court's power under s.25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned.\n\nThe discretion vested in the Court is, as is the case with all judicial discretions to he exercised judiciously in the background of all the relevant facts and circumstances.\n\nEach case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldomif ever-identical. The contention that if the husband is not u.nfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too b\\roadly may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under s.25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children.\n\nFrom this point of view, in case of conflict or dispute between the mother and the father about the custody of 1heir children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case.\n\nThere is . no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare.\n\nThe father's fitne\" h•1 to be co~<idered. determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstance;, If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right ¢o. their custody under s.25 merely bau1e there is !llO defect in his personal character and he has attachment for his childrenwhich every normal parent has. These are the only two asoects pressed before us, apart from the stress laid by the husband on the allegations of immorality againsit the wife which, in our firm opinion, he was not at all justified iin contending. Such allegations, it; t view ol' earlier decisions, had to be comnletely ignored in considering the question. of custody of the children in the present case. The father's fitness from the point of view just mentioned\n\n<:annot over-ride considerations of the welfare or the minor children.\n\nNo doubt, the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Cour, has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a taring on their heahh, maintenance and education. The family is normally !he heart of our society and for a balanced and healthy growth of children it h highly desirable that they get their due share of affection and care from both the parents in their normal parental home. \"'Where. however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances.\n\nMerely because the father loves his children and is not shown to be otherwise undersirable cannot necessarily lead to the conclusion that the welfare of the -children would be better promoted by granting their custody to him\n\nas against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources. may be in a position to guarantee better health, education and maintenance for them.\n\nThe children arc not mere chattels; nor are they mere play-things for their parents.\n\nAbsolute right of parents .over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights\n\n- of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with hin1.\n\nThe Letters Patent Bench on appeal seems to us have erred in reversing him on grounds which we are unable to appreciate.\n\nAt the bar reference was made to ti number of decided cases on the question of the right ot' father to tie appointed or declared as guardian and to be granted custody of his minor children under s. 25 read with s.19 of the Guardians and Wards Act.\n\nThose decisions were mostly decided on their own peculiar facts. We have, therefore not considered it necessary to deal with them.\n\nTo the extent, however, thev go against the view we have taken of s. 25 of the Guardians and Wards Act, they must be held to be wrongly decided.\n\nThe respondent's contention that the Court under the Div- -orce Act had granted custody of the two younger children to the\n\nwifo on the ground of their being of tender age, no tonger hold> good and that, therefore, •their custody must be handed over to him appears to us to be misconceived.\n\nThe age of the daughter at present is such that she must need the constant company of \" grown-up temale in !he house genuinely interested in her welfare.\n\nHer mother is in the circumstnces the best company for her.\n\nThe daughter would need her mother's advice and guidance on several matters of importance.\"' It has not been suggested at the bar that any grown-up woman closely related to Maya alias Mary would be available in the husband's house for such motherly advice and guidance. But this apart, even from the po>nt Di view of her education, in our opinion, her custody mth the wife would be for more beneficial than her custody with rthe husband.\n\nThe youngest son would also, in our opinion, be much better looked after by his mother than by his father who will have to work hard to take a mark in his profession.\n\nHe has quite clearly neglected !tis profession and we )lave no doubt that if he devotes himself whole-heartedly to it he is sure to find his place fairly high up in the legal profession.\n\nThe appellant's argument based on cstoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us.\n\nAll orders relating to the custody of the minor wards from their very nature must be considered to. be temporary orders made in the existing circumstances.\n\nWith the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the walfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees; cited at the bar. Orders relating to custody oi. wards even when\n\nbased on consent are liable to be varied by the Court, if the welfare of the wards demands variation.\n\nWe accordingly allow the appeal with respect to the custody of the two younger children and setting aside the judgment of the Letters Patnet Bench in this respect, restore that of the learned single Judge who, in our view, had correctly exercised his discretion under s. 25 of the Guardians and Wards Act The directions given by him with respect to access of the parties to their children are also restored.\n\nAs regards alimony, no doubt, the Letters Patent Bench was. in. our opinion, not quite right in withholding payment of the alimony already fallen due and in arrears. But in view of the fact that the financial position of the wife is far superior to that of the husband who according to his own submission. has yet to establish himself in his profession, we do not consider it just and proper to\n\ninterfere with that order under Art. 136 of the Constitution.\n\nWith respect to the alimony, t!J&refore, the appeal falls and is dismissed. We also direct that the parties should bear their own costs throughout.\n\nBefure concluding we must also express our earnest hope, as was done by the learned single Judge, that the two spouses would at least for the sake of happiness of their own off-spring if for no other reason, forget the past and tum a new leaf in their family life, so that they can provide to their children a happy, domestic home, to which their children must be considere'd io be justly entilted.\n\nThe requirement of\"indispensable tolerance and mental understanding in matrimonial life is its basic foundation.\n\nThe two spouses before us who are both educated and cultured and who come from highly respectable families must realise that reasonable wear and tear and nomal jars and shocks of ordinary married life has to be put up with in the larger interests of their own hapiness and of the healthy, normal growth and development of their offspring, .whom destiny has entrusted to their joint parental care.\n\nIncompatibility of tamprament has to be endeavoured to be disciplined into compatibility and not to be magnified by abnormal impluses or impulsive desires and passions. The husband is not disentitled to a house and a housewife, even though the wife has achieved the status of an economically emancipated woman; similarly the wife is not a domestic slave, but a responsible partner in discharging their jointparental obliira•ion in promoting the welfare of their children and in sharing the pleasure of their children's company. :Soth parents have, therefore, to cooperate and work harmoniously for their children who should feel proud of their parents and of their home, bearing in mind that their children have a right to expect from their parents such a home.\n\nS.B.W.\n\nAppeal allowed in part.", "total_entities": 154, "entities": [{"text": "ROSY JACOB", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "ROSY JACOB", "offset_not_found": false}}, {"text": "JACOB A. CHAKRAMAKKAL", "label": "RESPONDENT", "start_char": 12, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "JACOB A. 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N. Balasubramanian", "label": "OTHER_PERSON", "start_char": 2772, "end_char": 2795, "source": "ner", "metadata": {"in_sentence": "918\n\nA K. N. Balasubramanian and Lily Thomas, for the appellant."}}, {"text": "Lily Thomas", "label": "OTHER_PERSON", "start_char": 2800, "end_char": 2811, "source": "ner", "metadata": {"in_sentence": "918\n\nA K. N. Balasubramanian and Lily Thomas, for the appellant."}}, {"text": "DUA", "label": "JUDGE", "start_char": 2913, "end_char": 2916, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nDUA, J.-The real controversy in these two appeals by special leave preferred by the wife against her husband, lies in a narrow compass."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 3135, "end_char": 3152, "source": "ner", "metadata": {"in_sentence": "These appeals are directed against the judgment and order of a Division Bench of the Madras High Court allowing the appeals by the husband and dismissing the cross-objections by the wife from the judgment and order of a learned single judge of the same High Court dismissing aout 25 applications seeking diverse kinds of reliefs, presented by one or the other party."}}, {"text": "Maharajan", "label": "JUDGE", "start_char": 3456, "end_char": 3465, "source": "ner", "metadata": {"in_sentence": "According to the learned single Judge (Maharajan J.) \"these 25 applications represent but a fraction of the bitterness and frustration of an accomplished Syrian Christian couple who after making a mess of their married life have endeavoured to convert this Court into a machinery for wreaking private vengeance\".", "canonical_name": "Maharajan"}}, {"text": "Rosy Chakram.akkal", "label": "PETITIONER", "start_char": 4076, "end_char": 4094, "source": "ner", "metadata": {"in_sentence": "The appellant, Rosy Chakram.akkal (described her~ as wife) was married to respondent Jacob A. Chakramakkal (described herein as husband) sometime in 1952."}}, {"text": "Jacob A. Chakramakkal", "label": "RESPONDENT", "start_char": 4146, "end_char": 4167, "source": "ner", "metadata": {"in_sentence": "The appellant, Rosy Chakram.akkal (described her~ as wife) was married to respondent Jacob A. Chakramakkal (described herein as husband) sometime in 1952.", "canonical_name": "JACOB A. CHAKRAMAKKAL"}}, {"text": "Ajit alias Andrews", "label": "PETITIONER", "start_char": 4261, "end_char": 4279, "source": "ner", "metadata": {"in_sentence": "Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Maheshalias Thomas was born in 1961.", "canonical_name": "Ajit\n\nalias Andrews"}}, {"text": "Maya alias Mary", "label": "PETITIONER", "start_char": 4305, "end_char": 4320, "source": "ner", "metadata": {"in_sentence": "Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Maheshalias Thomas was born in 1961.", "canonical_name": "Maya alias Mary"}}, {"text": "Maheshalias Thomas", "label": "OTHER_PERSON", "start_char": 4342, "end_char": 4360, "source": "ner", "metadata": {"in_sentence": "Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Maheshalias Thomas was born in 1961.", "canonical_name": "Mahesh alias Thomas"}}, {"text": "S. 12", "label": "PROVISION", "start_char": 4455, "end_char": 4460, "source": "regex", "metadata": {"statute": null}}, {"text": "April 15, 19~.", "label": "DATE", "start_char": 4600, "end_char": 4614, "source": "ner", "metadata": {"in_sentence": "Sometime in 1962 thel wife started proceedings for judicial separation (O.M.S. 12 of 1962) on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 19~.\n\nSadasivam J., while granting the decree directed that Ajit alias Andrews. ("}}, {"text": "Sadasivam", "label": "JUDGE", "start_char": 4616, "end_char": 4625, "source": "ner", "metadata": {"in_sentence": "Sometime in 1962 thel wife started proceedings for judicial separation (O.M.S. 12 of 1962) on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 19~.\n\nSadasivam J., while granting the decree directed that Ajit alias Andrews. ("}}, {"text": "Ajit alias Andrews", "label": "PETITIONER", "start_char": 4670, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "Sometime in 1962 thel wife started proceedings for judicial separation (O.M.S. 12 of 1962) on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 19~.\n\nSadasivam J., while granting the decree directed that Ajit alias Andrews. (", "canonical_name": "Ajit\n\nalias Andrews"}}, {"text": "Mary alias Maya", "label": "OTHER_PERSON", "start_char": 4762, "end_char": 4777, "source": "ner", "metadata": {"in_sentence": "son) the eldest child should be kept in the custody of the husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of\n\nthe wife."}}, {"text": "Thomas alias Mahesh", "label": "OTHER_PERSON", "start_char": 4793, "end_char": 4812, "source": "ner", "metadata": {"in_sentence": "son) the eldest child should be kept in the custody of the husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of\n\nthe wife."}}, {"text": "Ajit", "label": "OTHER_PERSON", "start_char": 5318, "end_char": 5322, "source": "ner", "metadata": {"in_sentence": "2076 of\n\n1964) it was alleged by the wife that the husband hud beaten Ajit on the ground that he had accepted from his mother (the wife) a fountain pen as a present."}}, {"text": "S. 12", "label": "PROVISION", "start_char": 5865, "end_char": 5870, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 12", "label": "PROVISION", "start_char": 5997, "end_char": 6002, "source": "regex", "metadata": {"statute": null}}, {"text": "August 2, 1966", "label": "DATE", "start_char": 6112, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "On August 2, 1966 the appellate blench confirmed the decree for judicial separation granted by Sadasivam J., and also issued cer, tain directions based on agreement of the parties with respect to the custody of !"}}, {"text": "Mahesh", "label": "OTHER_PERSON", "start_char": 6485, "end_char": 6491, "source": "ner", "metadata": {"in_sentence": "150/- p.m., inclusive of maintenance payable for Mahesh."}}, {"text": "Mahesh alias Thomas", "label": "OTHER_PERSON", "start_char": 6643, "end_char": 6662, "source": "ner", "metadata": {"in_sentence": "According to this order the eldest boy Ajit alias Andrews directed to remain in the custody of the father and to be educated by him at his expense : Mahesh alias Thomas was directed to be in the custody of the mother to be educated at her expense: and the second child Maya alias Mary was directed to be put in a boarding school, the expenses of her t1oard and education to be met in equal shares by both the parents.", "canonical_name": "Mahesh alias Thomas"}}, {"text": "Maya alias Mary", "label": "PETITIONER", "start_char": 6763, "end_char": 6778, "source": "ner", "metadata": {"in_sentence": "According to this order the eldest boy Ajit alias Andrews directed to remain in the custody of the father and to be educated by him at his expense : Mahesh alias Thomas was directed to be in the custody of the mother to be educated at her expense: and the second child Maya alias Mary was directed to be put in a boarding school, the expenses of her t1oard and education to be met in equal shares by both the parents.", "canonical_name": "Maya alias Mary"}}, {"text": "February 2. 1967", "label": "DATE", "start_char": 7344, "end_char": 7360, "source": "ner", "metadata": {"in_sentence": "That court ultimately made an order on February 2."}}, {"text": "Maya", "label": "OTHER_PERSON", "start_char": 7424, "end_char": 7428, "source": "ner", "metadata": {"in_sentence": "The modified order directed Maya to be left in the exclusive custody of !"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 9404, "end_char": 9427, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ajit alias Andrews", "label": "JUDGE", "start_char": 10304, "end_char": 10322, "source": "ner", "metadata": {"in_sentence": "The eldest child Ajit alias Andrews, according to the learned Judge, was doing well at the school and was progressing\n\nsatisfactorily both metally and physically.", "canonical_name": "Ajit\n\nalias Andrews"}}, {"text": "Maharajan", "label": "JUDGE", "start_char": 12758, "end_char": 12767, "source": "ner", "metadata": {"in_sentence": "According to Maharajan 3.,", "canonical_name": "Maharajan"}}, {"text": "Maharaian", "label": "JUDGE", "start_char": 13059, "end_char": 13068, "source": "ner", "metadata": {"in_sentence": "The husband was in the circumstances held by Maharaian J.. disentitled to reopen the question of the wife's immorality.", "canonical_name": "Maharajan"}}, {"text": "Ajit\n\nalias Andrews", "label": "PETITIONER", "start_char": 13459, "end_char": 13478, "source": "ner", "metadata": {"in_sentence": "3 the learned single Judge gave the rollowi.ng directions :\n\n\"( 1) On the first Sunday of every month, exceot during the school vacations, the husband shall send Ajit\n\nalias Andrews to the wife bv 8.00 a.m. and the wife shall send back the child by 8.", "canonical_name": "Ajit\n\nalias Andrews"}}, {"text": "Mava alias Mary", "label": "PETITIONER", "start_char": 13593, "end_char": 13608, "source": "ner", "metadata": {"in_sentence": "(2) The wife shall send Mava alias Mary and Thomas alias Mahesh to the husband's bv 8 a.m. on the last Sunday of every month, except during the school vacations, and the husband shall send them back by 8 p.m. the same day.", "canonical_name": "Maya alias Mary"}}, {"text": "January 1, 1971", "label": "DATE", "start_char": 14772, "end_char": 14787, "source": "ner", "metadata": {"in_sentence": "100/- p.m., the reduced amount being payablle with effect from January 1, 1971."}}, {"text": "April 26, 1972", "label": "DATE", "start_char": 16751, "end_char": 16765, "source": "ner", "metadata": {"in_sentence": "Final orders were passed on April 26, 1972 by means of which the husband was held to be bellter fitted to be the guardian of the three children and to have their custody."}}, {"text": "ss.17, 19 and 25", "label": "PROVISION", "start_char": 16958, "end_char": 16974, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 16982, "end_char": 17005, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Gokul Krishnan", "label": "JUDGE", "start_char": 17079, "end_char": 17093, "source": "ner", "metadata": {"in_sentence": "This is what one of the Judges constituting the Letters Patent Bench ( Gokul Krishnan, J ., )", "canonical_name": "Gokul Krishnan"}}, {"text": "Indian Divorce Act and the Guardians and Wards Act, 1890", "label": "STATUTE", "start_char": 17229, "end_char": 17285, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 25", "label": "PROVISION", "start_char": 17373, "end_char": 17383, "source": "regex", "metadata": {"linked_statute_text": "the Indian Divorce Act and the Guardians and Wards Act, 1890", "statute": "the Indian Divorce Act and the Guardians and Wards Act, 1890"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 17391, "end_char": 17414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 19", "label": "PROVISION", "start_char": 17559, "end_char": 17564, "source": "regex", "metadata": {"linked_statute_text": "the Indian Divorce Act and the Guardians and Wards Act, 1890", "statute": "the Indian Divorce Act and the Guardians and Wards Act, 1890"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 17572, "end_char": 17595, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 19", "label": "PROVISION", "start_char": 17979, "end_char": 17989, "source": "regex", "metadata": {"linked_statute_text": "the Indian Divorce Act and the Guardians and Wards Act, 1890", "statute": "the Indian Divorce Act and the Guardians and Wards Act, 1890"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 17997, "end_char": 18020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Gokulakrishnan", "label": "JUDGE", "start_char": 18832, "end_char": 18846, "source": "ner", "metadata": {"in_sentence": "Gokulakrishnan J., commenting on the Judgment of Maharajan J., observed thus :\n\n\"Maharajan J. in his judgment under appeal no doubt referred to section 19 of the Guardians and Wards Act, but would observe that if the Court finds that the\n\nwelfare of -the minor children could be protected only in the maternal custody, the Court has power to put the children in the care oJ' custody of the mo!her.", "canonical_name": "Gokul Krishnan"}}, {"text": "section 19", "label": "PROVISION", "start_char": 18976, "end_char": 18986, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 18994, "end_char": 19017, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 20451, "end_char": 20474, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Veeraswamy L", "label": "JUDGE", "start_char": 21882, "end_char": 21894, "source": "ner", "metadata": {"in_sentence": "After reproducing certain observations from the judgment> of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy L\n\n(<1s he then was) and Krishnaswami Reddy J., dated Februarv 12."}}, {"text": "Krishnaswami Reddy", "label": "JUDGE", "start_char": 21918, "end_char": 21936, "source": "ner", "metadata": {"in_sentence": "After reproducing certain observations from the judgment> of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy L\n\n(<1s he then was) and Krishnaswami Reddy J., dated Februarv 12."}}, {"text": "S. 12", "label": "PROVISION", "start_char": 22095, "end_char": 22100, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkataraman", "label": "JUDGE", "start_char": 22259, "end_char": 22271, "source": "ner", "metadata": {"in_sentence": "769 and 770 of 1968 in O.M.S. 12 of 1962 and after referring rto the view of Maharajan J., that Ajit when produced in Court was found quite healthy and cheerful and was doing well at school, Venkataraman J. in his concurring judgment observed thus :-\n\n\"Regarding the other children, he gave their custody to the mother, because he thought that they were of tender years and needed emotional security which a mother alone could give."}}, {"text": "Adyar", "label": "GPE", "start_char": 23317, "end_char": 23322, "source": "ner", "metadata": {"in_sentence": "The husband on the other hand was not getting on well in his profession which he attributed to the present litiation : his house at Adyar was stated to be under mortgage and he had practically sold everything in his native village with the exception o.f one or one-and-half acres of land."}}, {"text": "s. 37", "label": "PROVISION", "start_char": 23866, "end_char": 23871, "source": "regex", "metadata": {"statute": null}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 23886, "end_char": 23897, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "A.iit", "label": "OTHER_PERSON", "start_char": 24267, "end_char": 24272, "source": "ner", "metadata": {"in_sentence": "With respect to A.iit and\n\nMahesh also a detailed order was made fix\\ng the precise."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 27615, "end_char": 27620, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 27628, "end_char": 27651, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 12", "label": "PROVISION", "start_char": 27760, "end_char": 27765, "source": "regex", "metadata": {"statute": null}}, {"text": "Balasubaramania Iyer", "label": "OTHER_PERSON", "start_char": 27972, "end_char": 27992, "source": "ner", "metadata": {"in_sentence": "It was strenuously pressed by Shri Balasubaramania Iyer the\n\ncounsel for the appellant wife that the husband's application under s. 25, Guardians and Wards Act was not competent because none of the children had been illegally removed from the lawful custody of their father, the custody of the two children having been lawfully entrusted to the wife in proceedings to which the husl:iand was a party."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 28066, "end_char": 28071, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 28073, "end_char": 28096, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 25", "label": "PROVISION", "start_char": 28585, "end_char": 28590, "source": "regex", "metadata": {"linked_statute_text": "Guardians and Wards Act", "statute": "Guardians and Wards Act"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 28721, "end_char": 28726, "source": "regex", "metadata": {"linked_statute_text": "Guardians and Wards Act", "statute": "Guardians and Wards Act"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 29022, "end_char": 29045, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 19", "label": "PROVISION", "start_char": 29137, "end_char": 29142, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 29150, "end_char": 29173, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 29256, "end_char": 29267, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 29466, "end_char": 29471, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 29479, "end_char": 29502, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Act as also the relevant provisions of the Indian Divorce Act", "label": "STATUTE", "start_char": 29563, "end_char": 29624, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 29630, "end_char": 29653, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.3", "label": "PROVISION", "start_char": 29759, "end_char": 29762, "source": "regex", "metadata": {"linked_statute_text": "Act as also the relevant provisions of the Indian Divorce Act", "statute": "Act as also the relevant provisions of the Indian Divorce Act"}}, {"text": "s.4", "label": "PROVISION", "start_char": 29876, "end_char": 29879, "source": "regex", "metadata": {"linked_statute_text": "Act as also the relevant provisions of the Indian Divorce Act", "statute": "Act as also the relevant provisions of the Indian Divorce Act"}}, {"text": "Indian Maiority Act, 1875", "label": "STATUTE", "start_char": 29970, "end_char": 29995, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 30054, "end_char": 30058, "source": "regex", "metadata": {"linked_statute_text": "the Indian Maiority Act, 1875", "statute": "the Indian Maiority Act, 1875"}}, {"text": "ss.5 to 19", "label": "PROVISION", "start_char": 30636, "end_char": 30646, "source": "regex", "metadata": {"linked_statute_text": "the Indian Maiority Act, 1875", "statute": "the Indian Maiority Act, 1875"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 30649, "end_char": 30653, "source": "regex", "metadata": {"linked_statute_text": "the Indian Maiority Act, 1875", "statute": "the Indian Maiority Act, 1875"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 30778, "end_char": 30787, "source": "regex", "metadata": {"linked_statute_text": "the Indian Maiority Act, 1875", "statute": "the Indian Maiority Act, 1875"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 30999, "end_char": 31008, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 31164, "end_char": 31173, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 31219, "end_char": 31223, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 9 to 11", "label": "PROVISION", "start_char": 31288, "end_char": 31304, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 31410, "end_char": 31420, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 17 and 19", "label": "PROVISION", "start_char": 31516, "end_char": 31529, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 31532, "end_char": 31542, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 32445, "end_char": 32455, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 20 to 42", "label": "PROVISION", "start_char": 33381, "end_char": 33393, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 20", "label": "PROVISION", "start_char": 33451, "end_char": 33462, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 33506, "end_char": 33516, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 33591, "end_char": 33596, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 24 to 26", "label": "PROVISION", "start_char": 33673, "end_char": 33690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 33733, "end_char": 33738, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25", "label": "PROVISION", "start_char": 33828, "end_char": 33838, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100", "label": "PROVISION", "start_char": 34476, "end_char": 34487, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1882", "label": "STATUTE", "start_char": 34495, "end_char": 34527, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sections 27 to 37", "label": "PROVISION", "start_char": 34679, "end_char": 34696, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1882", "statute": "the Code of Criminal Procedure, 1882"}}, {"text": "Sections 38 to 48", "label": "PROVISION", "start_char": 34733, "end_char": 34750, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1882", "statute": "the Code of Criminal Procedure, 1882"}}, {"text": "ss. 43 to 51", "label": "PROVISION", "start_char": 34805, "end_char": 34817, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1882", "statute": "the Code of Criminal Procedure, 1882"}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 35933, "end_char": 35944, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 41", "label": "PROVISION", "start_char": 36078, "end_char": 36088, "source": "regex", "metadata": {"statute": null}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 36096, "end_char": 36107, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 42", "label": "PROVISION", "start_char": 36250, "end_char": 36255, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Divorce Act", "label": "STATUTE", "start_char": 36722, "end_char": 36740, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3(5)", "label": "PROVISION", "start_char": 36893, "end_char": 36900, "source": "regex", "metadata": {"linked_statute_text": "Indian Divorce Act", "statute": "Indian Divorce Act"}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 36922, "end_char": 36933, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 41 and 42", "label": "PROVISION", "start_char": 36988, "end_char": 37001, "source": "regex", "metadata": {"linked_statute_text": "Indian Divorce Act", "statute": "Indian Divorce Act"}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 37171, "end_char": 37182, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 37427, "end_char": 37432, "source": "regex", "metadata": {"linked_statute_text": "Indian Divorce Act", "statute": "Indian Divorce Act"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 37440, "end_char": 37463, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 19", "label": "PROVISION", "start_char": 37618, "end_char": 37623, "source": "regex", "metadata": {"linked_statute_text": "Indian Divorce Act", "statute": "Indian Divorce Act"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 37631, "end_char": 37654, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 7", "label": "PROVISION", "start_char": 38017, "end_char": 38021, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 38029, "end_char": 38052, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 7", "label": "PROVISION", "start_char": 38176, "end_char": 38181, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 38536, "end_char": 38559, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 39271, "end_char": 39282, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ajit'alias Andrew", "label": "PETITIONER", "start_char": 39339, "end_char": 39356, "source": "ner", "metadata": {"in_sentence": "If the Court under the Divorce Act ca, nnot make any order with respect\n\nto the custody of Ajit'alias Andrew and Maya alias Mary and it 'is not open to the Court under tlle Guardians and Wards Act to appoint or declare guardian of the person of his children under s. 19 during his life-time, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is s. 25.", "canonical_name": "Ajit\n\nalias Andrews"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 39421, "end_char": 39444, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 19", "label": "PROVISION", "start_char": 39512, "end_char": 39517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 39673, "end_char": 39678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 39753, "end_char": 39758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 39868, "end_char": 39873, "source": "regex", "metadata": {"statute": null}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 40126, "end_char": 40137, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 40461, "end_char": 40472, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 40736, "end_char": 40759, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 40780, "end_char": 40791, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "by Maharaj", "label": "JUDGE", "start_char": 40806, "end_char": 40816, "source": "ner", "metadata": {"in_sentence": "But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed\n\nby Maharaj an J., with which observation we entirely agree, \"the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents\"."}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 41054, "end_char": 41065, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.25", "label": "PROVISION", "start_char": 41130, "end_char": 41134, "source": "regex", "metadata": {"linked_statute_text": "Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act", "statute": "Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act"}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 41142, "end_char": 41165, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.25", "label": "PROVISION", "start_char": 41996, "end_char": 42000, "source": "regex", "metadata": {"statute": null}}, {"text": "s.25", "label": "PROVISION", "start_char": 43305, "end_char": 43309, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 46325, "end_char": 46330, "source": "regex", "metadata": {"statute": null}}, {"text": "s.19", "label": "PROVISION", "start_char": 46341, "end_char": 46345, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 46353, "end_char": 46376, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 46577, "end_char": 46582, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 46590, "end_char": 46613, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Divorce Act", "label": "STATUTE", "start_char": 48056, "end_char": 48067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 49035, "end_char": 49040, "source": "regex", "metadata": {"statute": null}}, {"text": "Guardians and Wards Act", "label": "STATUTE", "start_char": 49048, "end_char": 49071, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 49604, "end_char": 49612, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_937_942_EN", "year": 1973, "text": "STATE OF BIHAR v.\n\nBHAGIRATH SHARMA & ANOTHER April 9, 1973\n\n[K. K. MATHEW AND 1. D. DUA, JJ,]\n\n/Jilwr Es.\"•lllial Commodities Act othel' than Foodgrai11s Price, and Stuck.• (Dlspl\"Y and Control) Order, 1967, Cls. ,3, 4 and .S-Tyres a11d 1·11be!s if inclucled in Scl1ed1tle, r-Princlple1' of 1nrerpretat1on of penal\n\n111easurt~·.\n\nConstitutlo11 of l11dia, 1950, Art. 134(1)(c)-'Certi/)\", scope of.\n\nJtem I of Schedule I of the Bihar Essential Commodities Act-other than Foodgruins-Priccs and Stocks (Display and Con!rol) Order, 1967., refer> to •compa, ncnt parts and accessories of automob1lcs.\n\nOn the h:1:-11~ thnt thcri.: was a failure on the part of the firm of the rspondents to display the price list and stock position of motr tyres in heir shup, th!.! respon dents were prosecuted for the offence of contrnvent1on of els. 3, 4,, and 5 of the Order.\n\nThe High Court in revision quashed the prosecution on the bilsis that th!! item did not refer to tyres and tubes of motor cars.\n\nAfter the juUgment, an ilcn1 was introduced in Schedule 11 of the Order relating to tyres and tubes of cars etc.\n\nDismissing the appeal filed with a certific11te of fitness under Art. 1.141 l)(c) of the Constitution,\n\nHELD : ( 1) Assuming fr, om a brand point of view that tyres and tubes of motor cars may be considered to be covered by the expression\n\n\"component p<.1rts and accessories of auton1obiles\" when construed ip its widest import, a comparison of the scheduled items of the Order with 1 he items in the vurious notificatio11s issued by the State Governn1e11t and the Central Government shows that it wns rm intended by the draftsman to extend tne Order. as in force in May !969, when the firm of the mnondcnts wa!i inspected, to cover tyres and tubes of motor cars.\n\n'.941C-FI\n\n(2) According to the fundamental principle of criminal jurisprudence which reflects fair play, a dealer must know with reasonable certainty und must have a fair warning as to what his obligation is, and what act of commission or omission on his part would constitute a criminal offence,\n\nUnlrss the dealers are in a position to know with certainty that 'tyres and tubes of motor cars' are included in the Schedule items, of which the price list nod the stock position ought to be displayed in a conspicuous part of their business premises. they cannot be held guilty in a criminal court of an offence under the Essential Commodities Act for the violation of any such mandate.\n\nIn the present case, the Order does not unambiguously specify 'tyres and tubes of motor cars' as a Scheduled item. [941F-Hi\n\n(3) The word 'certify' in Art. 134(1)(c) is a strong word postulating the exercise of judicial discretion in determining if the question requiring J.ccision by this Court involves a matter of principle or a substantial question of Jaw of great general importance. Such certificate is not to be\n\ng.iven as a matter of -course on the mere ground that the impugned decision is cons!dered to be erroneous. There must be exceptional or special ci.rcurnstances like infringement of essential principles of justice, or some\n\ndifficult question of law of great publ:c or private imoortance.\n\nIt is not to be granted so as to coovert this Court into an ordinary court of fur\n\n937 12--L797Sup.Cl/73\n\nther appeal.\n\nIn the present case, after the issue of the Notification incluJ. .. \\ ing 'tyres and tubes of motor cars' in the Schedule to the Order there is no doubt that the Order is comprehensive enough to take within its fold tyres and tubes of motor cars; and the effect of the present decision would be confined only to the prosecution of the respondent• There is no material on record suggesting that the decision by this Court of the question posed is likely to govern any case other than the one in hand relating to the acquittal of the respondents. l940E-H] B\n\nCRIMINAL APPELLATE\n\nJURISDICTION : Criminal Appeal No. 7 of 1970.\n\nAppeal by certificate from the judgment and order dated August 14, 1969 of the Patna High Court in Criminal Revision No. 1055 of 1969.\n\nB .. P. Jha, for th~ appellant.\n\nSarjoo Prasad and S. N. Prasad, for the respondents.\n\nThe Judgment of the Court was delivered\n\nDuA, J. : The State of Bihar has appealed to this Court with a certificate of fitness under Article 134 ( 1) ( c) of the Constitution from the judgment a1l4, order of a learned Single Judge of the Patna High Court dated August 14, 1969 quashing, on revision under ss, 439/561-A, Cr.P.C., the prosecution of Bhagirath Sharma and Radhey Shyam Sharma, tlie respondents in this Court, for contravention of clauses 3, 4 and 5 of the Bihar Essential Commodities Act-other than Foodgrains-Prices and Stocks\n\n(Display and Control) Order, 1967 (hereinafter called the order), pending in the Court of the Subi-Divisional Magistrate, Gaya.\n\nAccording to the prosecution case, on receipt of confidential information that the proprietor of M/s. Auto Spare, Law Road, Gaya, was not properly maintaining the account of Motor Tyres, with the ulterior motive of withholding the supply of the said article to the genuine customers, Shri Ram Nivas Singh, Marketing Officer, Gaya, had, along with two supply Insoectors, made a surprise inspection of the firm on May 22, 1969 and f0und certain irregularities. One oi those irregularities was, the failure ol the firm to display the price list and stock position of Motor Tyres anywhere in their shop, in contravention of clause 4 of the order. On search by the said Marketing Officer, a huge stock of Motor Tyres of different varieties numbering 487 were actually found stored in the 1nner portion of the shop. In view of the irregularities discovered by the Marketing Officer and the seizure of the stock of Motor Tyres, it was felt that prima facie case had been made out against the partners of the said firm, Shri Bhagirath Sharma and Shri Radhev Shvam Sharma, resoondents in this Court. for contravention of clauses 3. 4 and 5 of the Order.\n\nComplaint to that effect was accordingly made in the Court of\n\nlliHAR STATE v. BHAGIRATH (Dua, J.) 93b\n\nthe Sub-Divisional Magistrate on May 23, 1969. On the same date, the Sub-Divisional Officer, Sadar, Gaya after persuing the report of 1the Marketing Officer, took cognizance of the ca:; e under s. 7 of the Essential Commodities Act and tramforred it for disposal to the Court of Shri N. N. Singh, Munsif Magistrate, Ist Class, Gaya. It is against this order of the Magistrate that the respondents in this Court approached the Patna High Court under ss. 439/561-A, Cr.P.C.\n\nA learned Single Judge of the High Court after referring to the two relevant items (Nos. 1 & 5) of Schedule 1 appended to the Order felt bound by an earlier Single Bench decision dated C April 20, 1969 of that High Court in Criminal Misc. Case No. 14 79 of 1968 holding that item No. 1 of Schedule I could not be assumed to cover the commodities like Motor Tyres and Motor Tubes though he himself thought tht he would have taken a different view, had the matter been res integra.\n\nItem No. 5 even according to the learned Single Judge's own view could not cover the Motor Tyres and Motor Tubes. Being, however, bound D 1:t< the earlier decision, he held the prosecution of the proprietors of the firm to be misconceived. The prosecution was accordingly quashed.\n\nIn this Court, our attention has been drawn to item No. I in Schedule I of the Order. This item reads :-\n\n\" 1. Component parts and accessories of automobiles.\"\n\nIt is contended that this item must cover 'Tyres and Tubes of Motor Cars and Motor Cycles'.\n\nAccording to the argument forcibly pressed on behalf of the State of Bihar; Tyres anti Tubes of automobiles are their essential component parts and the earlier Single Bench decision of the Patna High Court (in Criminal Misc. Case No. 1479/1958) followed as a binding precedent in the present case should be held to have been wrongly decided.\n\nThe other item to which reference was made by the High Court in the impu!Jned judgment is item No. 5 which reads:-\n\n\"5. Cycle tyres and tu)ks, (including cycle rickshaw , tyres and tubes).\"\n\nThe submission that this item should be held to cover Motor Tyres and Motor Tubes was rejected by the High Court .. Before us, however, the State has not placed any reliance on item No.5 though on behalf of the respondents it has been suggested that\n\nwhere \"Tyres and Tubes\" are intended to be included as an item in the schedule, they have actually been expressly so stated. The respondent has also brought to our notice a Gazette Notification\n\n(No. G.S.R. 82) dated September 18, 1970 published in -the Bihar Government Gazette (Extraordinary) dated September 22, 1970\n\naccording to which four items were added after item No. 9 in . . Schedule II of the Order. The new item No. 11 reads :-\n\n11. Tyres and tubes of cars, buses, jeeps, vans, trucks, automobiles of any category whatsoever, tractors and tractor-trollies.\"\n\nQuite clearly after this Notification there can be no doubt whatsoever that t~ Order is comprehensive enough to take within its fold Tyres and Tubes of cars as also of 'automoblies of any category whatsoever'. The effect of the decision of the present case would, therefore, seem, prima facie, to be confined only to the fate of the prosecution initiated against the respondents. It has not been stated or even suggested at the Bar if any (and if so, how many) pending cases of similar nature are likely to be governed by the decision of tliis Court. Unfortunately, even the High Court has made a laconic order on oral request, merely stating :\n\n\"IT IS CERTIFIED That thiS case fulfils the .requirement of Article 134 ( 1) ( c) of the Constitution of India and is fit for appeal to the Supreme Court.\" without showing on its face what substantial question of law or principle of great importance was involved justifying the grant of Certificate under Article 134 (1) (c). The word \"certify\" in this Article, as often observed by this Court, is a strong word postulating the exercise of judicial discretion in determining if the question requiring decision by this Court involves a matter of principle or a substantial question of law of great general impor- . tailce. Such certificate jg.not to be gjvenas a matter of course on the mere ground that the impugned decision is considred to l:k: erroneous. There must be-exceptional or special circumstances like infringement of essential principles of justice or some difficult question of law of great public or private importance. It is not to be granted so as to convert this Court into an ordinary court of further. appeal. We do not find any material on the record suggesting that the decision by this Court of the question posed is likely to govern any case .other than the one in hand relating to the acquittal of the respondents. It apoears that the attention of the High Court was not drawn to the Bihar Government Notification dated September 18, 1970, by means of which the defect or lacuna pointed out by the High Court was removed for future cases. Had that Notification been brought to the notice of the High Court, one would have eXpccted it to state in the order grant- .ing the Certificate the reasons impelling it to do so.\n\nF .. -\n\nll!HAR STATE v. BHAGIRATH (Dua, J.) 94!\n\nNow in the judgement in Criminal Misc. Case No. 1479/68, reference was made to a Notification dated January 11, 1968 (No. S.C. 218) issued by !!he Ministry of Commerce, Government\n\nf India in which Types and Tubes of Scooters were exoressly men- Uo.ned as essential commodities distinct from the component parts and accessories of automobiles. Reference in that judgment was also ma_9e to a Notification dated August 22, 1968 (No. S.Q.\n\n2878) issued by the Central Government in which similarly Tyres •tnd Tub~ of Cars, etc. were specifically mentioµed as essential commodities, and to a still later Notification by the Central\n\nGovenrunent dated January 3, 1969 (No. S.0. 85) in which Tyres and Tubes of Cars were mentioned in a manner almost similar to the one found in the Bihar Government Gazette Notilkation No. G.S.R. 82 dated September 18, 1970.\n\nIn this background even assuming that from a broad point of view, 'Tyres and Tubes of Motor Cars' may be considered to be covered by the general expression \"Component parts and accessories of automobiles\" when construed in its widest import, on comparison of the scheduled items of the Order with the items in the other Notification mentioned and considered in the earlier decision of the High Court (in Cr!. Misc. Case No. 1479/68), can it not be reasonably and rationally assumed that it was not intended by the draftsman to extend the Order to 'Tyres and Tubes of Motor Cars? In our view, the drafting precedents furnished by the other Notifications considered in the earlier decision of the High Court (in Cd.Misc.Case No. 1470/68) do indicate that the draftman did not intend the scheduled items in the Order as in force in May, 1969 to cover 'Tyres and Tubes of Motor Cars'.\n\nBut independently of this aspect the question may also be considered from another point of view, viz., if the legal mandate contained in the Order is expressed with such certainly and clarity as to give reasonably precise and adequate guidance to those who want to be law-abiding.\n\nIn other words, does the Order lay down an ascertainable standard of guilt by unambiguously specifying the Tyres and Tubes of Motor Cars as a Scheduled item.\n\nWe do not think it does unless the dealers are in a position to\n\nknow with certainly that the items of Tyres and Tubes of Motor Cars are included in the scheduled items of which the price list and the stock position are to be displayed in a conspicuous part of their business premises, in our opinion, they cannot br. held guilty in a criminal court of an offence under the Essential Commodities Act for violation of any such mandate.\n\nAccording to the fundamental principle o.f our criminal jurisprudence, which reflects fair play, the dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of commission or omission on his part\n\nwould constitute a criminal offence before he can be called upon to answer a charge and be liable to be convicted in a criminal court for any violation of a legal mandate.\n\nThis approach is in conformity with the general requirement that the act or default should be associated with a legally blameworthy condition of mind.\n\nOn the view that we have taken, the High Court seems to us to have been fully justified in recording the respondents' acquittal and we see no cogent ground for disagreeing with it.\n\n1he appeal accordingly fails and is dismissed.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "STATE OF BIHAR", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "BHAGIRATH SHARMA & ANOTHER", "label": "RESPONDENT", "start_char": 19, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "BHAGIRATH SHARMA & ANOTHER", "offset_not_found": false}}, {"text": "K. K. MATHEW", "label": "JUDGE", "start_char": 62, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "KUTTYIL KURIEN MATHEW", "offset_not_found": false}}, {"text": "1. D. DUA, JJ", "label": "JUDGE", "start_char": 79, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "I.D. DUA*", "offset_not_found": false}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 362, "end_char": 376, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Jtem I of Schedule I of the Bihar Essential Commodities Act", "label": "STATUTE", "start_char": 399, "end_char": 458, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Schedule 11", "label": "PROVISION", "start_char": 1035, "end_char": 1046, "source": "regex", "metadata": {"linked_statute_text": "Jtem I of Schedule I of the Bihar Essential Commodities Act", "statute": "Jtem I of Schedule I of the Bihar Essential Commodities Act"}}, {"text": "Art. 1", "label": "PROVISION", "start_char": 1167, "end_char": 1173, "source": "regex", "metadata": {"linked_statute_text": "Jtem I of Schedule I of the Bihar Essential Commodities Act", "statute": "Jtem I of Schedule I of the Bihar Essential Commodities Act"}}, {"text": "Central Government", "label": "ORG", "start_char": 1567, "end_char": 1585, "source": "ner", "metadata": {"in_sentence": "1.141 l)(c) of the Constitution,\n\nHELD : ( 1) Assuming fr, om a brand point of view that tyres and tubes of motor cars may be considered to be covered by the expression\n\n\"component p<.1rts and accessories of auton1obiles\" when construed ip its widest import, a comparison of the scheduled items of the Order with 1 he items in the vurious notificatio11s issued by the State Governn1e11t and the Central Government shows that it wns rm intended by the draftsman to extend tne Order."}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 2389, "end_char": 2414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 2606, "end_char": 2620, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "B .. P. Jha", "label": "LAWYER", "start_char": 4044, "end_char": 4055, "source": "ner", "metadata": {"in_sentence": "B .. P. Jha, for th~ appellant."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 4077, "end_char": 4090, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and S. N. Prasad, for the respondents."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 4095, "end_char": 4107, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and S. N. Prasad, for the respondents."}}, {"text": "DuA", "label": "JUDGE", "start_char": 4172, "end_char": 4175, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered\n\nDuA, J. : The State of Bihar has appealed to this Court with a certificate of fitness under Article 134 ( 1) ( c) of the Constitution from the judgment a1l4, order of a learned Single Judge of the Patna High Court dated August 14, 1969 quashing, on revision under ss, 439/561-A, Cr."}}, {"text": "State of Bihar", "label": "ORG", "start_char": 4186, "end_char": 4200, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered\n\nDuA, J. : The State of Bihar has appealed to this Court with a certificate of fitness under Article 134 ( 1) ( c) of the Constitution from the judgment a1l4, order of a learned Single Judge of the Patna High Court dated August 14, 1969 quashing, on revision under ss, 439/561-A, Cr."}}, {"text": "Article 134", "label": "PROVISION", "start_char": 4264, "end_char": 4275, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Patna High Court", "label": "COURT", "start_char": 4369, "end_char": 4385, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered\n\nDuA, J. : The State of Bihar has appealed to this Court with a certificate of fitness under Article 134 ( 1) ( c) of the Constitution from the judgment a1l4, order of a learned Single Judge of the Patna High Court dated August 14, 1969 quashing, on revision under ss, 439/561-A, Cr."}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 4451, "end_char": 4457, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhagirath Sharma", "label": "RESPONDENT", "start_char": 4479, "end_char": 4495, "source": "ner", "metadata": {"in_sentence": "P.C., the prosecution of Bhagirath Sharma and Radhey Shyam Sharma, tlie respondents in this Court, for contravention of clauses 3, 4 and 5 of the Bihar Essential Commodities Act-other than Foodgrains-Prices and Stocks\n\n(Display and Control) Order, 1967 (hereinafter called the order), pending in the Court of the Subi-Divisional Magistrate, Gaya.", "canonical_name": "BHAGIRATH SHARMA & ANOTHER"}}, {"text": "Radhey Shyam Sharma", "label": "RESPONDENT", "start_char": 4500, "end_char": 4519, "source": "ner", "metadata": {"in_sentence": "P.C., the prosecution of Bhagirath Sharma and Radhey Shyam Sharma, tlie respondents in this Court, for contravention of clauses 3, 4 and 5 of the Bihar Essential Commodities Act-other than Foodgrains-Prices and Stocks\n\n(Display and Control) Order, 1967 (hereinafter called the order), pending in the Court of the Subi-Divisional Magistrate, Gaya.", "canonical_name": "Radhey Shyam Sharma"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 4606, "end_char": 4631, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Court of the Subi-Divisional Magistrate, Gaya", "label": "COURT", "start_char": 4754, "end_char": 4799, "source": "ner", "metadata": {"in_sentence": "P.C., the prosecution of Bhagirath Sharma and Radhey Shyam Sharma, tlie respondents in this Court, for contravention of clauses 3, 4 and 5 of the Bihar Essential Commodities Act-other than Foodgrains-Prices and Stocks\n\n(Display and Control) Order, 1967 (hereinafter called the order), pending in the Court of the Subi-Divisional Magistrate, Gaya."}}, {"text": "Gaya", "label": "GPE", "start_char": 4926, "end_char": 4930, "source": "ner", "metadata": {"in_sentence": "According to the prosecution case, on receipt of confidential information that the proprietor of M/s. Auto Spare, Law Road, Gaya, was not properly maintaining the account of Motor Tyres, with the ulterior motive of withholding the supply of the said article to the genuine customers, Shri Ram Nivas Singh, Marketing Officer, Gaya, had, along with two supply Insoectors, made a surprise inspection of the firm on May 22, 1969 and f0und certain irregularities."}}, {"text": "Ram Nivas Singh", "label": "OTHER_PERSON", "start_char": 5091, "end_char": 5106, "source": "ner", "metadata": {"in_sentence": "According to the prosecution case, on receipt of confidential information that the proprietor of M/s. Auto Spare, Law Road, Gaya, was not properly maintaining the account of Motor Tyres, with the ulterior motive of withholding the supply of the said article to the genuine customers, Shri Ram Nivas Singh, Marketing Officer, Gaya, had, along with two supply Insoectors, made a surprise inspection of the firm on May 22, 1969 and f0und certain irregularities."}}, {"text": "May 22, 1969", "label": "DATE", "start_char": 5214, "end_char": 5226, "source": "ner", "metadata": {"in_sentence": "According to the prosecution case, on receipt of confidential information that the proprietor of M/s. Auto Spare, Law Road, Gaya, was not properly maintaining the account of Motor Tyres, with the ulterior motive of withholding the supply of the said article to the genuine customers, Shri Ram Nivas Singh, Marketing Officer, Gaya, had, along with two supply Insoectors, made a surprise inspection of the firm on May 22, 1969 and f0und certain irregularities."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 5422, "end_char": 5430, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Bhagirath Sharma", "label": "RESPONDENT", "start_char": 5819, "end_char": 5835, "source": "ner", "metadata": {"in_sentence": "In view of the irregularities discovered by the Marketing Officer and the seizure of the stock of Motor Tyres, it was felt that prima facie case had been made out against the partners of the said firm, Shri Bhagirath Sharma and Shri Radhev Shvam Sharma, resoondents in this Court.", "canonical_name": "BHAGIRATH SHARMA & ANOTHER"}}, {"text": "Radhev Shvam Sharma", "label": "RESPONDENT", "start_char": 5845, "end_char": 5864, "source": "ner", "metadata": {"in_sentence": "In view of the irregularities discovered by the Marketing Officer and the seizure of the stock of Motor Tyres, it was felt that prima facie case had been made out against the partners of the said firm, Shri Bhagirath Sharma and Shri Radhev Shvam Sharma, resoondents in this Court.", "canonical_name": "Radhey Shyam Sharma"}}, {"text": "May 23, 1969", "label": "DATE", "start_char": 6085, "end_char": 6097, "source": "ner", "metadata": {"in_sentence": "Complaint to that effect was accordingly made in the Court of\n\nlliHAR STATE v. BHAGIRATH (Dua, J.) 93b\n\nthe Sub-Divisional Magistrate on May 23, 1969."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6246, "end_char": 6250, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 6258, "end_char": 6283, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "N. N. Singh", "label": "JUDGE", "start_char": 6336, "end_char": 6347, "source": "ner", "metadata": {"in_sentence": "On the same date, the Sub-Divisional Officer, Sadar, Gaya after persuing the report of 1the Marketing Officer, took cognizance of the ca:; e under s. 7 of the Essential Commodities Act and tramforred it for disposal to the Court of Shri N. N. Singh, Munsif Magistrate, Ist Class, Gaya."}}, {"text": "ss. 439", "label": "PROVISION", "start_char": 6501, "end_char": 6508, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 6516, "end_char": 6522, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 6624, "end_char": 6634, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "April 20, 1969", "label": "DATE", "start_char": 6712, "end_char": 6726, "source": "ner", "metadata": {"in_sentence": "1 & 5) of Schedule 1 appended to the Order felt bound by an earlier Single Bench decision dated C April 20, 1969 of that High Court in Criminal Misc."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 6814, "end_char": 6824, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 7349, "end_char": 7359, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "September 18, 1970", "label": "DATE", "start_char": 8544, "end_char": 8562, "source": "ner", "metadata": {"in_sentence": "G.S.R. 82) dated September 18, 1970 published in -the Bihar Government Gazette (Extraordinary) dated September 22, 1970\n\naccording to which four items were added after item No."}}, {"text": "September 22, 1970", "label": "DATE", "start_char": 8628, "end_char": 8646, "source": "ner", "metadata": {"in_sentence": "G.S.R. 82) dated September 18, 1970 published in -the Bihar Government Gazette (Extraordinary) dated September 22, 1970\n\naccording to which four items were added after item No."}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 8713, "end_char": 8724, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 134", "label": "PROVISION", "start_char": 9605, "end_char": 9616, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 9634, "end_char": 9655, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 9685, "end_char": 9698, "source": "ner", "metadata": {"in_sentence": "Unfortunately, even the High Court has made a laconic order on oral request, merely stating :\n\n\"IT IS CERTIFIED That thiS case fulfils the .requirement of Article 134 ( 1) ( c) of the Constitution of India and is fit for appeal to the Supreme Court.\""}}, {"text": "Article 134", "label": "PROVISION", "start_char": 9850, "end_char": 9861, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Central\n\nGovenrunent", "label": "ORG", "start_char": 11858, "end_char": 11878, "source": "ner", "metadata": {"in_sentence": "were specifically mentioµed as essential commodities, and to a still later Notification by the Central\n\nGovenrunent dated January 3, 1969 (No."}}, {"text": "January 3, 1969", "label": "DATE", "start_char": 11885, "end_char": 11900, "source": "ner", "metadata": {"in_sentence": "were specifically mentioµed as essential commodities, and to a still later Notification by the Central\n\nGovenrunent dated January 3, 1969 (No."}}, {"text": "S.0", "label": "PROVISION", "start_char": 11906, "end_char": 11909, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 13789, "end_char": 13814, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1973_3_943_951_EN", "year": 1973, "text": "V. NAGAPPA v.\n\nIRON ORE MINES CESS COMMISSIONER & ANOTHER April 10, 1973\n\n[A. N. GROVER, K. K. MATHEW1AND A. K. MUKHERJEA, JJ.J Iron Ore Mines Labour Welfare Gess Act (58 of 1961), Ss. 2 and 3-Power delegated to Government to fix rate of exciJ:e duty-I/ suffers from vice of excessive delel(ation.\n\nSection 2 of the Iron Ore Mines Labour Welfare Cess Act, 1961, provides that the Central Government may levy as a cess for purposes of the Act, on all iron ore produced, an excise duty at such rate, not exceeding 50 P. per tonne of iron ore, as the Central Government may, from time to time, fix by notification.\n\nThe appellant, a lessee of an iron mine, challenged the validity of the Act, but the High Court dismissed the petition,\n\nIn appeal to this Court, it was contended that s. 2 of the Act suffers from the vice of excessive delegation in that, under the section, the Central Government has been given a blanket power to fix the rate of D excise duty from time to time, without any guidelines.\n\nDismissing the appeal,\n\nHELD : The necessary guidance for fixing the rate can be found in the amount of expenditure .necessary for carrying out the purposes of the Act. The policy of the Act has beOlll' clearly stated, and s. 3 has specified the purposes for which the excise duty collected is to be utilised.\n\nThe purposes mentioned are not vague, or indefinite, and the expenses to be incurf'ed for those purposes could be calculated with reasonable certainty. The power to levy the duty must be taken to be limited by the expenses required to discbarge the statutory function to be performed by the delegate, and so, the rate that is to be fixed should be such as would bring in the amount necessary to meet the needs of the delegate for discharging the functions.\n\nThat the amount collected will be expen <led for the purposes enumerated in s. 3 is ensured , first, by requiring the Governn1ent to make an appropriation by means of parliamentary legislation, and secondly, by requiring accounts and reports to be published in the offic'al Gazette [951 D-G]\n\nFurther, the fact that s. 2 has fixed the maximum rate would indicate that the delegate is not given an uncontrolled discretion in the matter of fixing the rate.\n\nThe area within which discretion n1ay be exercised is clearly demarcated, and hence, it cannot be said that a blanket po\\\\.er\n\nhall been declared to the Governn1ent. [951 G-H]\n\nCorporation of Calcutta and Another v. Liberty Cine111a A.I.R. 1965 I !07, Banarsidas v. State of M.P., A.LR. 1958 S.C. 909, Municipal Board, llapur v. Raglmvendra Kripal A.J.R.\n\n1966 S.C. 693, Devi Das Gopal Krishnan v. State of Punjab, A.J.R. 1967 S.C. 1895, Vasanrlal Maganbhai\n\nScnjamvala v. Stat• of Bombay, A.I.R. 1961 S.C. 4, Municipal Corporation of Delhi v. Bir/a Cotton and Spinning and WeavinH Mills, A.LR. 1968 S.C.\n\n1232 Kruse v. Johnson [1898] 2 Q.B. 91 and D. Ramaraju v. State of A.P ..\n\nA.J.R. 1972 S.C. 828. referred to. 9 43\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1695 of 1969.\n\nAppeal by special leave from the judgment and order dated february 20, 21, 1967 of the Mysore High Court Bangalore in Writ Petition No. 347 of 1965.\n\nV. M. Tarkunde andD. N. Mishra, for the appellant.\n\nP. P. Rao, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant, who was operating an iron mine within the State of Mysore on the basis of a lease granted by the Stak, filed a writ petition before the High Court of Mysore challenging the validity of the provisions of the Iron Ore Mines Labour Welfare Cess Act (Central Act 58 of 1961), hereinafter referred to as \"the Act\". _The contentions of the appellant in the writ petition were that the Act is violative of article 14 of the Constitution in that it imposes a fiat rate of excise duty on iron ere without reference to the actual content of iron in the ore and that there was excessive delegation of legislative power in that the po, wer to fix the rate of excise duty was delegated to the government. The prayer in the petition was for a declaration of the invalidity of the Act with the consequential relief of quashing the demand made in pursuance to the Act. That petition was heard along with other similar petitions.\n\nThe High Court dismissed the writ petitions by a common order and this appeal, by special leave, is against the order in so far as it affects the appellant.\n\nThe Act provides for the levy and collection of a cess on iron ore for financing the promotion of welfare of labour employed in the iron ore mining industry. So far as the Mysore State was concerned, the Act was brought into force from October 1, 1963.\n\nSections 2 and 3 of the Act contain the crucial provisions thereof.\n\nAs the arguments in this case centred round the said provisions, it is necessary to set them out :\n\n\"2. With effect from such date as the Central Government may, by notification in the official Gazette, appoint, there shall be levied and collected, as a cess for the purposes of this Act on all iron ore produced in any mine, a dnty of excise at snch rate not exceeding fifty naye paise per metric tonne of iron ore as the Central Government may, from time to time, fix by notification in the official Gazette.\n\n\"3. An amount equivalent to the proceeds of the duty levied under this Act, reduaed by the cost of colc\n\nlection as detennined by the Central Government, together with any income from investment of the said amount and any other moneys received by the Central Government for the purposes of this Act, shall, after duo appropriation made by Parliament by law, be utilised by the Central Government to meet the expenditure incurred in connection with measures which, in the opinion of that Government, are necessary or expedient to promote the welfare of labour employed in the iron ore mining industry and in particular :-\n\n(a) to defray the cost of measures for the benefit of lalx1ur employed in the Iron Ore Mining Industry directed towards :-\n\n( i) the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities,\n\n(ii) the provision and improvement of water supplies and facilities for washing,\n\n'iii) the provision and improvement of educational facilities,\n\n(iv J the improvement of standards of living including housing and nutrition, the amelioration of social conditions and the provisions of recreational facilities, and\n\n( v) the provision of transport to and from work;\n\n(b) to make grants to a State Government, a local authority, the owner of an iron ore mine or any other person, of money in aid of any scheme approved by the Central Government for any purpose connected with the welfare of labour employed in the iron ore mining industry :\n\n( c) to pay annually grants in aid to such of the owners of iron ore mines as provided to the satisfaction of the Central Government welfare facilities of the prescribed standard for the benefit of labour employed in their mines, so, however, that the amount payable as grant in aid to the owner of an iron ore mine shall not exceed-\n\n(i) the amount spent by the owner of the mine in the provision of welfare facilities, as detennined by the Central Government or any person specified by it in this behalf or\n\n(ii) such amount as may be prescribed by rules made under this Act; •\n\nwhichver is less : Provided that no grant in aid shall be payable in respect of any welfare facilities provided by the owner of an iron ore mine where the amount spent thereon determined as aforesaid is less than the amount prescribed by rules made in this behalf. ( d) to meet the allowances, if any of members of the . Advisory Committees constituted under section 4, and the salaries and allowances, if any, of persons appointed under Section 5.\"\n\nSections 4 and 5 empower the Central Government to appoint Advisory Committees' and the necessary staff for enforcement of the provisions of the Act. Section 6 empowers the Central Governinent to exempt from the operation of the Act such States as those in which there is, in the opinion of the Central Government, a law making adequate provision for the financing of activities similar to those dealt with by the Act.\n\nSection .7 requires the Central Government to cause to be published in the official Gazette a report giving an account of its activities under the Act together with a statement of accounts. Section 8 empowers the Central Government to make rules. for carrying into effect the purposes-of the Act.\n\nPursuant to the power conferred by Section 8, rules called E the Iron Ore Mines Labour Welfare Cess Rules, 1963, were framed and published by a notification dated September 20, 1963.\n\nOn the first question decided against the appellant by the High Court, no arguments were addressed before us and we do not, therefor~, think it necessary to discuss that question.\n\nThe only point argued on behalf of the appellant was that s. 2 of the Act suffers.from the vice of excessive delegation in that under that Section the Central Government has been given a blanket power to fix the rate of excise duty. It was contended that the section, while leaving it to the Central Government to fix the rate and change it from time to time, has failed to give sufficient guidance to the Government in the matter of fixing the rate, :r:ior has it indicated the basis for fixation or the relevant consideration to be taken into account for fixing the rate.\n\nThe High Court relying on the decision of this Court in Corporation of Calcutta and Another v. Liberty Cinema(') negatived the contention. .\n\n(I) A. I .R. 1965 S. C. 1 !07.\n\n' .. )\n\n. '\n\nIn that case the validity of s. 548(2) of the Calcutta Municipal Act, 1951 which empowered the corporation to levy fees \"at such rates as may from time to time be fixed by the Corporation\" was challenged on the ground of excessive delegation as it provided no guidance for the fixation of the amount. The majority upheld the provision relying on the decision in Banarsidas v.\n\nState of M.P.(1) that the fixation of rates of tax being not an essential legislative function could be validly delegated. to a nonlegislative body, but observed further that when it was left to such a body, the legislature must provide guidance for such fixation.\n\nThe Court found th~ guidance in the monetary needs of the Corporation for carrying out tile functions entrusted to it under the Act. It was further observed that the power to collect taxes was limited by \"the expenses required to discharge those functions\".\n\nThe minority, however, held that no guidance could be discovered from the provisions of the Act. According to them if the monetary needs of the Corporation could afford any guidance, applying the same principle it would have to be held that the monetary needs of the State or the union would provide sufficient guidance in c:ase a similar power to 'fix the rate .of tax was delegated to the Government by the higislature.\n\nThe question for consideration is whether subsequent deci- >ions of this Court have in any way modified or altered the principles laid down in this ruling and if so, to what extent, and whether s. 2 of the Act suffers from the vice of excessive dele, gation.\n\nIn Municipal Board, Hapur v. Raghuvendra Kripal(') the validity of the U.P. Municipalities Act, 1916 was involved. The Act had empowered the municipalities to fix the rates of tax and after having enumerated the kinds of taxes to be levied, prescribed an elaborate procedure for such a levy and also provided for the sanction of the government. Section 135 ( 3) of the Act raised a conclusive presumption that the procedure prescribed had been gone through on a certain notification being issued by the Government in that regard. This provision, it was contended, was ultra vires because there was an abdication of essential legislative functions by the legislature with respect to the imposition of tax inasmuch as the State Government was given the power to condone the breaches of the Act and to set at naught the Act itself.\n\nThis was an indirect exempting or dispensing power.\n\nHidayatullah, J., speaking for the majority, pointed out :\n\n\" .... regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is proper to leave to\n\n(I) A. I .R. 1958 S. C. 909.\n\n(2) A. I .R. 1966 S. C. 693.\n\nthese municipalities the power to impose and collect these taxes.\n\nThe taxes are, however, pre-determined and a procedure for consulting the wishes of the people is devised\" (at p. 698).\n\nApart from the fact that the Board was a representative body of the local population on whom the tax was levied, there were other safeguards by way of checks and controls by government which could veto the ac'lion of the Board in case it did not carry out .the mandate of the legislature.\n\nJn Devi Das Gopal Krishnan v. State of Punjab (1), s. 5 of\n\nth~ East Punjab General Sales Tax Act, 1948 empowered the State Government to fix sales tax at such rates as it thought lit.\n\nThe Court struck down the section on the ground that the legislature did not lay down any policy or guidance to the executive in the matter of fixation of rates.\n\nSubba Rao, C.J. speaking for the Court -pointed out that the needs of the State and the purpose of the Act would not provide sufficient guidance in the fixation of rates of tax.\n\nIt was further contended tha~ s. 5 as amended only prescribed the maximum rate and did not disclose any policy giving guidance to the executive for fixing any rate other_ tha:i the maximum. The Court rejected this contention on the gmund that the discretion granted to the executive to fix the rate between one pice and two pice in a rupee is insignificant and did not exceed the perpermissib[e limits. In this case the learned Chief Justice reiterated his views about the permissible limits of delegation, expressed in his dissentng judgment in Vasantlal Maganbhai Sanjanwala v.\n\nState of Bombay( 2 ). He pointed out the danger inherent in the process of delegation thus :\n\n\"An overburdened legislature or one controlled by a powerful executive may unduly over-step the limits of delegation. It may not lay down any policy at all : It may not set down any standard for the guidance of the executive; ir may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation\". (at p. 1901).\n\nIn Municipal Corporation of Delhi v.\n\nBir/a Cotton and Spinning and Weaving Mills('), the main question was the .::onstitutionality of delegation of taxing powers to Municipal\n\n(\\ l\n\nA. I .R. 1967 S. C. 1895.\n\n(2) A. I .R. 1961 S. C. 4.\n\n(3 ) A. I .R. 1968 S. C. 1232.\n\nCorporations. The Delhi Municipal Corporation Act (66 of 1957) by s. 113(2) had empowered the Corporation to levy optioual taxes. Under s. 150, power was given to the Corporation to define the maximum rate of such tax to be levied, the classes of persons and the descriptions of articles and properties to be taxed, the systems of assessment to be adopted and the exemptions if any to be granted. The delegation made to the Corporation in the matter of imposing the optional taxes was said to s'uffer from the vice of excessive delegation.\n\nThe majority of the Court held the delegation to the valid. Wanchoo, C.J. observed\n\nthat there were sufficient guidance, checks and safeguards in the Act which prevented excessive delegation.\n\nThe learned Chic.f Justice observed that statements in certain cases 'IO the effect that the power to fix the rates of taxes was not an essential feature were too broad.\n\nSikri. J. (as be then was), in his concurring j udgmcnt held the view that there ; was \"adequate guide or policy in the expression \"purposes of the Act in section 113\" and \"it is not necessary to rely on the safeguards mentioned by the learned Chief Justice to sus!ain the delegation\".\n\nHe said : ''Apart from authority, in my view; parliament hus full power to delegate legislative authority to subordinate bodies.\n\nThis power flows, in my judgment from art. 246 of the Constitution.\n\nThe word \"exclusive\" means ex, lusive of any other legislature and not exclusive of any other subordinate body. There is, however, one restriction in this respect and that is also contained in art. 246. Parliament must pass a law in respect of an item or items of the relevant list.\n\nNegatively this means that Parliament cannot abdicate its functions. It seems to me that this was the position under the various Government of India Acts and the constitution has made no difference in this respect.\n\nI read (1883) 9 AC 117 and (1885) 10 AC 282 as laying down that legislatures like Indian legislatures had full power to delegate legislative authority to subordinate bodies. In the judgments in these cases no\n\nG such words as 'policy', 'standard' or 'guidance' is men_tioned\" (at p. 1266).\n\nWanchoo, C.J. made a functional approach to the question when he stated that \"the nature of the body to which delegation is made is also. a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation\" (at 1244). Accordine to the leamed Chief Justice the fact that delegation was made -to an elected body responsible to the people including those who paid taxes provided a great check on the elected councillors imposing unreasonable rates of tax.\n\nAgain, guide or control on the limit of taxation could be seen\n\nin the expression \"purposes of the Act\" in s. 113.\n\nThe power lo tax was circumscribed by the need to finance the functions which were made incumbent on the Corporation to perform.\n\nThe necessity of adopting budget estimates each year as provided under the Act afforded another limit and guide-line in the matter. Fmther, the fact that the government was made the watchdog to control the actions of the Corporation in the matter of fixinµ the rates provided another check against arbi-· trarily exercising the power of taxation vested with the Corporution.\n\nThe guidance may also take the form of providing maximum rates of tax upto which a local body may be given the discretion to make its choice. Lastly, relying on Kruse v.\n\nJohnson(') the learned Chief Justice pointed out that in the case .of subordinate public representative bodies, such as municipal boards, the reasonableness of their action could be reviewed by the Courts. Thus the majority relied on the safeguards inherent in delegating the power to an elected body and guidelines provided under the various provisions of the Act for upholding the delegation. They observed the power from the angle of its exercise aad gauged its propensity for abuse functionally.\n\nIn D. Ranuwaju v. State of A.P.(') the question was about the vires of the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968. Section 3 of that Act provided for levy and collection of drainage cess. . According to sub-section (1) of that section there shall be levied and collected by the Government, for a period of six years from the date of the commencement of the Act, as a drainage cess on every Ja11d in the delta area comprised within a division specified in column (2) of the Schedule, for the purposes of the Act in that division, a tax at such rate per acre per annum, not exceeding the rate specified in the corresponding entry in column (3) thereof, as the Government may, by notification, specify in respect of that division. The schedule referred to in the section fixed the maximum rate at which drainage cess may be Gollected and according to it the maximum rate shall be Rupees 10 per acre per annum for the Godavari eastern delta, and the Godavari central delta.\n\nSection 8(1) provides for a cess fund and any moneys received from the Central or State Government or any other source for the purposes of the Act shall be credited to the Fund toget.her with the proceeds of the Drainage Cess as levied and collected under the Act.\n\nSub-section ( 4) of s. 8 provides that the fund, in so far as it relates to the proceeds of the drainage cess levied and collected in a division, shall be applied towards meeting the cost of the drainage schemes which the Board may, with the concurrence of the Government, undertake in that division.\n\n(I) (1898) S. C. 91.\n\n(2) A. I .R. 1972 S.C 828.\n\n. In answer to the contention that the section furnishes 110 sufficient guidelines for exercising the discretion to fix the rate. and therefore, the section was bad on the ground of excessive delegation of legislative power, the Court said that the Act contained sufficient guidelines, for the fixation of the rate of cess, that there was enough materials on records to justify a uniform rate of cess for each acre of land in a division of the deltaic nrea and that the imposition of tax on land for raising general revenue is substantially different from the levy of cess for implementa tion of a drainage scheme for the benefit of lands in an area.\n\nTested in the light of the reasoning adopted in the cases referred to above, we are of opinion that the Act has furnished definite guideline for the government to exercise the power to fix the rate of excise duty.\n\nSection 3 has specified the purposes for which the excise duty collected is to be utilized.\n\nWe do not think that the purposes mentioned are vague or mdefinite or that the expenses to be incurred for those purposes cannot be calculated with reasonable certainty. The power to lezy the duty must be taken to be limited by the expenses required to discharge the statutory function to be performed by the delegate and so, the rate that is to be fixed should be such as would bring in the amount necessary to meet the needs of the delegate for discharging the functions.\n\nThat the amount collected will be expended for the purposes enumerated in s. 3 is ensured firstly by requiring the Government to make an appropriation by means of parliamentary legislation and secondly, by requiring accounts and reports to be published in the official Gazette.\n\nThe policy of the J\\ct has been dearly stated; the purposes for which the tax collected should be expended have been enumerated and the purposes are such that it is reasonably possible for the delegate to calculate the amount necessary to meet them.\n\nIn these circumstances, we think that the necessary guidance for fixing the rare can be found in the amount of expenditure necessary for carrying out the purposes of the Act. Quite apart from these circumstances, the fact that s. 2 has fixed the maximum rate would indicate that the delegate is not given an uncontrolled discretion in the matter of fixing the rate.\n\nThe at'ea within which the discretion has to be exercised having been clearlv\n\ndemarcated, it cannot be said that a blanket power to fix the rate\n\nhas been delegated to government.\n\nWe dismiss the appeal with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 59, "entities": [{"text": "V. NAGAPPA", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "V. NAGAPPA", "offset_not_found": false}}, {"text": "IRON ORE MINES CESS COMMISSIONER & ANOTHER", "label": "RESPONDENT", "start_char": 15, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "IRON ORE MINES CESS COMMISSIONER & ANOTHER", "offset_not_found": false}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 75, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER*", "offset_not_found": false}}, {"text": "K. K. MATHEW1AND A. K. MUKHERJEA, JJ", "label": "JUDGE", "start_char": 89, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "A.K. MUKHERJEA", "offset_not_found": false}}, {"text": "Iron Ore Mines Labour Welfare Gess Act", "label": "STATUTE", "start_char": 128, "end_char": 166, "source": "regex", "metadata": {}}, {"text": "Ss. 2 and 3", "label": "PROVISION", "start_char": 181, "end_char": 192, "source": "regex", "metadata": {"linked_statute_text": "Iron Ore Mines Labour Welfare Gess Act", "statute": "Iron Ore Mines Labour Welfare Gess Act"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 299, "end_char": 308, "source": "regex", "metadata": {"linked_statute_text": "Iron Ore Mines Labour Welfare Gess Act", "statute": "Iron Ore Mines Labour Welfare Gess Act"}}, {"text": "Iron Ore Mines Labour Welfare Cess Act, 1961", "label": "STATUTE", "start_char": 316, "end_char": 360, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 380, "end_char": 398, "source": "ner", "metadata": {"in_sentence": "Section 2 of the Iron Ore Mines Labour Welfare Cess Act, 1961, provides that the Central Government may levy as a cess for purposes of the Act, on all iron ore produced, an excise duty at such rate, not exceeding 50 P. per tonne of iron ore, as the Central Government may, from time to time, fix by notification."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 781, "end_char": 785, "source": "regex", "metadata": {"linked_statute_text": "the Iron Ore Mines Labour Welfare Cess Act, 1961", "statute": "the Iron Ore Mines Labour Welfare Cess Act, 1961"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1225, "end_char": 1229, "source": "regex", "metadata": {"linked_statute_text": "the Iron Ore Mines Labour Welfare Cess Act, 1961", "statute": "the Iron Ore Mines Labour Welfare Cess Act, 1961"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1847, "end_char": 1851, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2087, "end_char": 2091, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 3162, "end_char": 3176, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde andD. N. Mishra, for the appellant."}}, {"text": "andD. N. Mishra", "label": "LAWYER", "start_char": 3177, "end_char": 3192, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde andD. N. Mishra, for the appellant."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 3214, "end_char": 3223, "source": "ner", "metadata": {"in_sentence": "P. P. Rao, for the respondents."}}, {"text": "MATHEW", "label": "JUDGE", "start_char": 3291, "end_char": 3297, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant, who was operating an iron mine within the State of Mysore on the basis of a lease granted by the Stak, filed a writ petition before the High Court of Mysore challenging the validity of the provisions of the Iron Ore Mines Labour Welfare Cess Act (Central Act 58 of 1961), hereinafter referred to as \"the Act\". _"}}, {"text": "Mysore", "label": "GPE", "start_char": 3369, "end_char": 3375, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant, who was operating an iron mine within the State of Mysore on the basis of a lease granted by the Stak, filed a writ petition before the High Court of Mysore challenging the validity of the provisions of the Iron Ore Mines Labour Welfare Cess Act (Central Act 58 of 1961), hereinafter referred to as \"the Act\". _"}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 3454, "end_char": 3474, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMATHEW, J.\n\nThe appellant, who was operating an iron mine within the State of Mysore on the basis of a lease granted by the Stak, filed a writ petition before the High Court of Mysore challenging the validity of the provisions of the Iron Ore Mines Labour Welfare Cess Act (Central Act 58 of 1961), hereinafter referred to as \"the Act\". _"}}, {"text": "article 14", "label": "PROVISION", "start_char": 3717, "end_char": 3727, "source": "regex", "metadata": {"statute": null}}, {"text": "October 1, 1963", "label": "DATE", "start_char": 4626, "end_char": 4641, "source": "ner", "metadata": {"in_sentence": "So far as the Mysore State was concerned, the Act was brought into force from October 1, 1963."}}, {"text": "Sections 2 and 3", "label": "PROVISION", "start_char": 4644, "end_char": 4660, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 5564, "end_char": 5574, "source": "ner", "metadata": {"in_sentence": "An amount equivalent to the proceeds of the duty levied under this Act, reduaed by the cost of colc\n\nlection as detennined by the Central Government, together with any income from investment of the said amount and any other moneys received by the Central Government for the purposes of this Act, shall, after duo appropriation made by Parliament by law, be utilised by the Central Government to meet the expenditure incurred in connection with measures which, in the opinion of that Government, are necessary or expedient to promote the welfare of labour employed in the iron ore mining industry and in particular :-\n\n(a) to defray the cost of measures for the benefit of lalx1ur employed in the Iron Ore Mining Industry directed towards :-\n\n( i) the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities,\n\n(ii) the provision and improvement of water supplies and facilities for washing,\n\n'iii) the provision and improvement of educational facilities,\n\n(iv J the improvement of standards of living including housing and nutrition, the amelioration of social conditions and the provisions of recreational facilities, and\n\n( v) the provision of transport to and from work;\n\n(b) to make grants to a State Government, a local authority, the owner of an iron ore mine or any other person, of money in aid of any scheme approved by the Central Government for any purpose connected with the welfare of labour employed in the iron ore mining industry :\n\n( c) to pay annually grants in aid to such of the owners of iron ore mines as provided to the satisfaction of the Central Government welfare facilities of the prescribed standard for the benefit of labour employed in their mines, so, however, that the amount payable as grant in aid to the owner of an iron ore mine shall not exceed-\n\n(i) the amount spent by the owner of the mine in the provision of welfare facilities, as detennined by the Central Government or any person specified by it in this behalf or\n\n(ii) such amount as may be prescribed by rules made under this Act; •\n\nwhichver is less : Provided that no grant in aid shall be payable in respect of any welfare facilities provided by the owner of an iron ore mine where the amount spent thereon determined as aforesaid is less than the amount prescribed by rules made in this behalf. ("}}, {"text": "section 4", "label": "PROVISION", "start_char": 7689, "end_char": 7698, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 7768, "end_char": 7777, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 4 and 5", "label": "PROVISION", "start_char": 7781, "end_char": 7797, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 7931, "end_char": 7940, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Governinent", "label": "ORG", "start_char": 7954, "end_char": 7973, "source": "ner", "metadata": {"in_sentence": "Section 6 empowers the Central Governinent to exempt from the operation of the Act such States as those in which there is, in the opinion of the Central Government, a law making adequate provision for the financing of activities similar to those dealt with by the Act."}}, {"text": "Section 8", "label": "PROVISION", "start_char": 8391, "end_char": 8400, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 8534, "end_char": 8543, "source": "regex", "metadata": {"statute": null}}, {"text": "Iron Ore Mines Labour Welfare Cess Rules, 1963", "label": "STATUTE", "start_char": 8564, "end_char": 8610, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8922, "end_char": 8926, "source": "regex", "metadata": {"linked_statute_text": "the Iron Ore Mines Labour Welfare Cess Rules, 1963", "statute": "the Iron Ore Mines Labour Welfare Cess Rules, 1963"}}, {"text": "s. 548(2)", "label": "PROVISION", "start_char": 9655, "end_char": 9664, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta Municipal Act, 1951", "label": "STATUTE", "start_char": 9672, "end_char": 9700, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11145, "end_char": 11149, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 11287, "end_char": 11311, "source": "regex", "metadata": {}}, {"text": "Section 135", "label": "PROVISION", "start_char": 11556, "end_char": 11567, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 12094, "end_char": 12106, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, J., speaking for the majority, pointed out :\n\n\" .... regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is proper to leave to\n\n(I) A. I .R. 1958 S. C. 909."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12909, "end_char": 12913, "source": "regex", "metadata": {"statute": null}}, {"text": "East Punjab General Sales Tax Act, 1948", "label": "STATUTE", "start_char": 12922, "end_char": 12961, "source": "regex", "metadata": {}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 13207, "end_char": 13216, "source": "ner", "metadata": {"in_sentence": "Subba Rao, C.J. speaking for the Court -pointed out that the needs of the State and the purpose of the Act would not provide sufficient guidance in the fixation of rates of tax."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13416, "end_char": 13420, "source": "regex", "metadata": {"linked_statute_text": "East Punjab General Sales Tax Act, 1948", "statute": "East Punjab General Sales Tax Act, 1948"}}, {"text": "Delhi Municipal Corporation Act", "label": "STATUTE", "start_char": 14904, "end_char": 14935, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 113(2)", "label": "PROVISION", "start_char": 14952, "end_char": 14961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 150", "label": "PROVISION", "start_char": 15022, "end_char": 15028, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 15487, "end_char": 15494, "source": "ner", "metadata": {"in_sentence": "Wanchoo, C.J. observed\n\nthat there were sufficient guidance, checks and safeguards in the Act which prevented excessive delegation."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 15791, "end_char": 15796, "source": "ner", "metadata": {"in_sentence": "Sikri."}}, {"text": "section 113", "label": "PROVISION", "start_char": 15946, "end_char": 15957, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 246", "label": "PROVISION", "start_char": 16246, "end_char": 16254, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 246", "label": "PROVISION", "start_char": 16470, "end_char": 16478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 113", "label": "PROVISION", "start_char": 17681, "end_char": 17687, "source": "regex", "metadata": {"statute": null}}, {"text": "Drainage Cess Act, 1968", "label": "STATUTE", "start_char": 18992, "end_char": 19015, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19017, "end_char": 19026, "source": "regex", "metadata": {"linked_statute_text": "Drainage Cess Act, 1968", "statute": "Drainage Cess Act, 1968"}}, {"text": "Godavari", "label": "GPE", "start_char": 19816, "end_char": 19824, "source": "ner", "metadata": {"in_sentence": "The schedule referred to in the section fixed the maximum rate at which drainage cess may be Gollected and according to it the maximum rate shall be Rupees 10 per acre per annum for the Godavari eastern delta, and the Godavari central delta."}}, {"text": "Section 8(1)", "label": "PROVISION", "start_char": 19873, "end_char": 19885, "source": "regex", "metadata": {"linked_statute_text": "Drainage Cess Act, 1968", "statute": "Drainage Cess Act, 1968"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 20159, "end_char": 20163, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 21358, "end_char": 21367, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 22000, "end_char": 22004, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 22683, "end_char": 22687, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1973_3_952_958_EN", "year": 1973, "text": ") I\n\n. '\n\nCOMMISSIONER OF INCOM&TAX, WEST BENGAL\n\nCALCUTTA\n\nCALCUITA DISCOUNT CO., LTD.\n\nApril 10, 1973\n\n[K. S. HEGDE AND H. R. KHANNA, JJ.]\n\nlncome-tax-Riglzt of assessee to avoid tax. ,4 ppel/ate Tribunal-Disposal of appeal on 'teclmica/ities-Duty tu conshirr substance of the matter. .\n\nThe assessee company floated a subsidiary co.mpany during the ele- \\'ant previous year and transferred to that su}Jtdtary company vanou5 l>harc! held by it at a certain rate. The authonttes under the lncome-tlx\n\nAct. 1922. held that the assessee and its subsidiary were two different kg01J entities that the transact:on was a bona fide transacttnn and that the assessee had not maJe any secret profits out of that transaction. The locomc-tax Officer, however, valued the shares transferred at the market\n\nriltc and held that the assessee company must he deemed to have made a profit. In appeal, the Appellate Assistat Commissioner . set a.1ide thr order of the Income-tax Officer and rcrrutted the case to h1m for findin~ out whether the assessee bad really mad.: any profits from the tran-\n\n, action.. 'The Tribunal dismed the appeal of the lncome-[a:t Offktr \"l:!ain5t that order, summarily, on the ground that the Income-ta.-c Officer hotd not taken the necessary pleas that the dl!cision of the Appdlate\n\nA\"i.tant Commisioncr was incorrect in law.\n\nOn reference. the High C..ourt held that the order of the Tribunal was an interlocutory on~ and that an application to male a reference to the High Court did not lie.\n\nDi.missing the appeal to this Court.\n\nHELD: ( l) The Tribunal, instead of dealin~ with the substance or the matter had been unduly influenced by procedural technicalith:s. The\n\nconcluion of the Tribunal that the appeal memorandum was not in o.ccordance with law was alo not correct a.'! no specific formula i~ r.eccsary for seeking relief at the hand of any court or tribunal if the\n\nnecc~'ilry grounds are t-ahn.\n\n[.9550-E]\n\n(2) Dut the view of the Appellate Assistant Commissioner was corred .r.n.d there was no necessity to decide whether the Tribunal errcJ. in\n\nd•mJ!I.\\Jng the appeal summarily. (958F-G}\n\n. lt is. a well ac~~~ priciple o! law that an ll!i~~:ssee can sv arraol!, e lu' nff:urs u~ t_o mlnt_m1s_e ht~ taJt burden.\n\nHc:nce, if the assssc to th1s 4:4.-'C_:m<lngcd t_ts. Wfa1rs tn such a manner ll!i t&.l reduce it! tax liability by\n\nt.; tl1mg a subsJJ, ary comp; my anJ transferring its shares to that subsidi- \".Lry coa1pay a.nll thU5. orgo1ng part of its own protl~ and at thll same lime tn_ahn~; JU su})\\h.Jiary to earn some profits, such a courc is not\n\ntrnpermt~.aJblc under lilw.\n\nI957E-F]\n\nCommi5:.lont>r ul /ncom~ Tax, Gujarat,· v. A. Raman and Co. 67 J.T.R.\n\nII followed.\n\n, Sri Ri.Jmalinga ChooJumbikai Mill:J Ltd. v, Commisslonu of Jncomt .u.t. J.fadral. 28 1.1 .R. 95:!. approved.\n\nSharkey (/nsprctor of Taxn) v. Wunl; r 1956 Appeal Cases 58 and II\n\n/}r~Vars 1'a Cu. Lrd. v.- <;:om.misslonrr of Agricullura/ Jncor; 1.:-!~~. IV1'.1t tfirnNI, \". l.T . .R. G. dtst•n~Uishcd and uplainc:J.\n\n...,\n\n\\ '' I I\n\nI I\n\n. 'I\n\nC.I.T, v. CALCUTTA DISCOUNT C:O. (Hegde, ],) 953\n\nCIVIL APPllLLATE JURISDICTION : C.A.No. 495 of 1970.\n\nAppeal by certificate from the judgment and order dated July 2S, 1969 of the Calcutta High Court in Income.Tax Refe renee No. 61 of 1966.\n\nS. C. Manchanda, S. P. Nayar and R. N. Sachthey, for the appellant.\n\nSachin Chaudhuri, M. C. Chagla, T. A. Ramachandran'and D. N. Gupta, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHEGDE, J.-This is an appeal by certificate.\n\nIt arises from the decision of the Calcutta High Court in a reference under S. 66(1) of the Indian Income-tax Act, 1922 (to be hereafter referred to. as the 'Act'). Three questions of law were referred to the High Court for ascertaining its opinion. Those que.-stions are .--\n\n0) Whether in view of the fact that the Tribunal's order dated 22nd July 1964 was an interlocutory order the Tribunal was competent to entertain an applicatioll purported to be under Section 66(1) of the Indian Income Tax Act, 1922, in respect of such order ?\n\n(2) If the answer to question No. 1 above be in th~ affirmative, whether on the facts and in the circum .. stances of the case the Tribunal exercised its discretion judicially in not allowing the applicant's petition for raising the additional grounds ?\n\n( 3) , Whether on the facts antL in the circumstances of lhe case, the Tribunal erred in dismissing the appeal summarily on the grounds stated in its appdlate order dated 3-9-1964 ?\n\nThe High Court answered the first question in favour of the assessee and came to the conclusion that it was unnecesary to amwer the remaining two questions.\n\nMr. Manchanda. learned coumel for the Revenue did not seek to get any answer from us on questions 1 and 2. His arguments were confined to question No.3.\n\nThe material facts of the case as could be gathered from the case stated by the Tribunal are as follow~\n\nHerein we are concerned with the assessment of the assessee H for the assessment year 194 7-48, relevant accounting year being the financial year 1946-4 7. The assessee company floated a subsidiary company named Messrs. Clive Row Investment ~H0ld 13-L797Sup.Cll73\n\n954 SUPREME COUllT REPORTS [1973] 3 s.c.R.\n\ning) Co., Ltd., quring the relevant previous year and transferred to that subsidiary company various shares held by it. In return the subsidiary company transferred to the assessee company its shares of the value of Rs. 1,38,81,173/ ... The book value of the shares transferred by the assessee company to its subsidiary was Rs. 1,66,69,391/~. Thu~ the assessee company sustained a loss of Rs. 27,02,398,/ but it did not claim that loss in the return made on the ground that the transfer in question was made to its own subsidiary. The Income Tax Officer valued the shares transferred b(y the assessee company to its: subsidiary at the market rate\n\nnnd on that basis came to the conclusion that the assessee company must be deemed t~ have made a profit of. Rs. 1,02,40,546/-.\n\nThe Income Tax Officer did not hold that the transaction between the assessee company and its subsidiary was not a bona fide transaction or the assessee company had made any secret profits out of that transaction. In other words, according to the Income Tax Officer even though the assessee company had not nl.ade any profits ]n fact, it must be deemed o have made\n\na profit of Rs. 1,02,40,546/- solely on the ground that the market value of the shares transferred by the assessee company to its subsidiary is much more than their book value.\n\nAggrieved by the decision of the Income Tax Officer the\n\n[tsessce went up in appeal to the Appellate Assistant Commis~ sioner. The Appellate Assistant .Commissioner opined that the basis adopted by the Income Tax Officer was unsustainable and .hence set aside the order of the Income Tax Officer and remitted the case back to that Offir for finding out whether tbe assessee had really made any profits in the transaction in quesion . As al!ainst that order the Income Tax: Officer went up in appeal to the Income Tax Appellate Tribunal. In the appeal memo the Income Tax Officer took only three grounds, namely :\n\n\"(1) For that on the .facts and in the citcumstau\" ces of the case the learned Appellate Assistant Commissioner of Income-tax should have held that the shares transferred by the assessee company to its subsidiary during the year of account should be valued, for the purposes of assessment under the Indian Incometax Act, at their market price.\n\n(2) For that the learned Appellate Assistant Commissioner of Incometax misappreciated the facts of the present case and wrongly applied the decision of the\n\nMadras High Court .in 28 I.T.R. 952.\n\n(3) For that the learned Appellate Assistant Commissioner ignored the principle that the cases of the pre- &ent type the sum to be taken for the disposal of the stock-in trade of the assessee is not what the assessee\n\n'.E\n\nC.I, T. V, CALCUTTA DISCOUNT CO. (Hegde, /,) 955\n\n~ has chosen to treat as his receipt but what he would normally have received for it in the due course of trade.''\n\nHe did not plead that the order of the Appellate Assistant Commissioner was incorrect in law and therefore, should be set aside.\n\nIt appears thao at the hearing the counsel for the assessee took the plea .that as the Income Tax Officer had not taken the ground that the order of the Appellate Assistant Commissioner was not in accordance with law, consequently it should be se~ ttside, the Tribunal could not gra.Qt the relief asked for by the Income Tax Officer.\n\nAt that stage, as seen from the records, the Income Tax Officer applied for amending his appeal memo but that prayer was rejected by the Income Tax Appellate Tribunal.\n\nUltimately the Tribunal dismissed the appeal of the Income Tax Officer summarily on the ground that necessary pleas have not been taken. Thereafter, at the instance of the Revenue the questions set out earlier were referred to the High Court.\n\nThe procedure adopted by the Tribunal appears to us to be somewhat strange.\n\nThe Tribunal instead of dealing with the substance of the matter appears to have been unduly influenced by procedural technicalities.\n\nWe are also not impressed with the conclusion of the Tribunal that the appeal memo was not in accordance with law.\n\nNo specific formula is necessary for seeking relief at the hands of any court or Tribunal if the necessary grounds are taken in the appeal memo.\n\nHad we come to the conclusion that the decision of the Income Tax Appellate Commissioner was wrong in law we would have had no hesitation in answering the three questions formulated above in favour of the Revenue and directing the Tribunal to reconsider the matter. But, in the view that we are taking the answers to those questions would become purdy academic. ·\n\nThe Appellate Assistant Commissioner came to the conclusion that the assessee and its subsidiary were two different legal entities. This conclusion was not and could not be challenged.\n\nAll the authorities under the Act have come to the conclusion that the transaction between the assessee and its subsidiary company was a bona fide transaction and the assessee had not made any secret profits out of the transaction in question. It may be that the assessee had transferred its valuable shares at cost price to its subsidiary in order to so arrange its affairs as to reduce\n\nits tax burden. The question whether such an arrangement is permissible or not, we shall presently examine.\n\nSUPREME COURT REPORTS [1973] 3 s.c.R.\n\nAs seen earlir the Appellate Assistant Commissioner came to the conclusion that unless the Income Tax Officer on the basis of material before him is able to come to the conclusion that the assessee had really made profits in the transaction. it is not permissible for him to add back to the assessee's return any fictional income. In our opinion that conclusion is fully in accordance with law.\n\nThe question hat when an assessee transfers some of h!~\n\nstockin trade to another person at a price less than the market price, whether that assessee can be considered to have made any profit merely because he has transferred some of his stock-in\n\ntrade not at the market price but at a lesser price, came up for consideration blefore the High Court of Madras in Sri Ramalinga Choodambikai Mills Ltd. v Commissioner of lncometax, MadrasC).\n\nThe facts of that case as set out in the head-note are : a .limited company sold certain goods shu, v:::d in its stock-in t-rade to its managing agency firm and to another firm in which one of its directors was interested.\n\nThe sales in question were held to be bona fide sales.\n\nAt the same time it was held that the goods were sold at a concessional rate.\n\nThe Income Tax Officer sought to tax. the assessee erein after computing the profits earned by that finn on the basis of the market price of the goods sold and not the actual price at which those goods were sold. The assessee challenged the said basis. The Tribunal uphe!J the contention of he assessee.\n\nIt came to the conclusion that the assessee had, in reality, made no profits at all.\n\nThe High C( urt agreed with the conclusion reached by the Tribunal.\n\nIt opin::d tlut in the absence of any evidence to show either that the sales were sham transactions or that the market prices were in fact ptiJ by the purchasers, the mere fact that the goods were sold at a ccucessional rate to benefit the purchasers at the expense of the company would not entitle the Income-tax department L~\n\nassess the difference between the mark'et price and the price paid by the purchasers, as profits of the companj'.\n\nA somewhat similar question came up for consideration before this Court in Commissioner of Income Tax, Gujarat v.\n\nA. Rcmwn a11d Co. e) It js unnecessary of set out the facts of that case and it is sufficient to refer to the relevant observations in the judgment.\n\nShah, J. (as he then ws), speaking for the Court stated the law at page 17 of the Report thu:; :-·\n\n\"1lte plea raised by the Income-4ax Officer is that income which could haYc be:::n earned by the a3sessees v.Js not earned, and a part of that income was earned by the Hindu undivided families. That according to th~\n\nIncome-tax Officer was brought about by 'a subterfuge\n\n(I) 281. T. R. 952.\n\n(2J 671. T. R. II.\n\n~ C.l.T. V. CALCUTTA DISCOUNT CO. (Hegde, J.) 957\n\nor contrivance. Counsel for the . Commissioner COll tended that if by resorting to a \"device or contrivance\" income which would normally have been earned by the assessee is divided between the assessee and another person, the Income-tax Pfficer would be entitled to bring the entire income to tax as if it had been earned by him.\n\nBut the law does not oblige a trader to make the maximum profit that he can out of his tradin~ transactions.\n\nIncome which accrues to a trader 1s taxable in his. hands : income which he could have, but has not earn~. )s not made taxable as income accrued to him. By adopting a advice~ if it is made to appear that income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of lhe ass.essee, and if the income has escaped tax in a previous assesment a case for commencing a proceeding for reassessment under section 147(b) may be made out.\n\nAvoidance of tax liability by so arranging commercial\n\naffairs that charge of tax is distributed is not prohibited.. A tax payer may resort to a device to divert the income before it accrueS! or arises to him. Effectiveness of the device depends not upon considerations of mora1ity, but on the operation of the Income-tax Act.\n\nLegislative injunction in taxing statutes may not, except on peril of penalty, be violated, but it may lawfully be circumvented.' It is a well accepted principle of law that an assessee can so arrange his affairs as to minimise his tax burden. Hence, if the asse!>See in this case has arranged his affairs in such a manner as to reduce his uix liability by staring a subsidiary company and transferring its shares to that subsidiary company and thus foregoing part of its own profits and at the same time enabling its subsidiary to earn some profits; such a course is not impermissible under law.\n\nMr. Manchanda contended that a person should not be allowed to adopt a device by which he gives up something through the right hand and receives the same through the left hand.\n\nAcording to him there is no difference between the assessee and its subsidiary and, therefore, when the assessee tries to make profits through its subsidiary,' we must presume that the profits were made by the assessee itself. In support of that contention he sought to place reliance on the decision of the House of Lon!s in Sharkey (Inspector of Taxes) v. Wernher( 1).\n\nTherein, the assessee was a breeder of hors.es.\n\nShe also had racing stables.\n\nShe transferred some horses from her sud to\n\n(1) [1956] Appeal Cases 58.\n\nSUPRBMB COURT REPORTS [1973] 3 s.c.R.\n\nthe stables. In so doing she debited in her accounts only the cost of breeding the ho!ses and not their market price. The question arose, whether in computing her income the market price of those horses or merely 'the cost of breeding them should be taken into consideration. The House of Lords upheld the contention of the Revenue by majority that in computing the profits of the assessee the market price of those horses should be taken jnto consideration.\n\nThe ratio of this decision is similar to the ratio of the decision of this Court in Dooar's Tea Co. Ltd. v.\n\nCof!!.missioner of Agricu]!ural lncome.tax, West Bengal(l).\n\nTherein, a tea garden owner raised in his own garden bamboo, thatch and som, e other agriculural produce.\n\nHe utilised those products for the purpose of its tea business. The question arose whether while assessing the tea garden 0wr1er under the Bengal Agricultural Income-tax_ Act the cost of £:\\ising bamboo, thatch,\n\netc., should be taken into consideration or their market price should be taken into consideration. This Court upheld the contention of the Revenue that the market price of those produc_ts should be taken into consideration in computing the agricultural income of the assessee.\n\nThe ratio of the decision in W arnher' s D as well as in Dooar's Tea Co.'s case does not bear upon the question of law arising for decision in this case. Therein what the courts had to consider was where a person carrying on a trade disposes of a part of his goods not by way of sale in the course of trade bu~ for his own use, whether the production cost of such goods or the market price of those goods should be taken into consideration. But, in the present case we are called upon to consider the question whether when one trader transfers his goods to another trader at a price less than the market price, the taxing authority can take in!o consideration the market price of those goods, ignoring the real price fetched. As mentioned earlier the latter question is no more res integra.\n\nIt is concluded by the decision of this Court in A Raman and Co.'s Case (supra).\n\nFor the reasons mentioned above we are of the opinion that the conclusion reached by the Appellate Assistant Commissioner is in accordance withlaw and it would be an exrcise in futility to answer the third question set out above in favour of the Revenue and remit the case back to the Tribunal.\n\nIn this view of the rna tter we do not propose to answer that question.\n\nIn the result this appeal fails and the same is dismissed with no order as to costs.\n\nP.v.s.\n\nAppeal dismissed.\n\n(I) 44 I .T. R. 6.", "total_entities": 32, "entities": [{"text": "COMMISSIONER OF INCOM&TAX, WEST BENGAL\n\nCALCUTTA", "label": "PETITIONER", "start_char": 10, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL CALCUTTA", "offset_not_found": false}}, {"text": "CALCUITA DISCOUNT CO., LTD", "label": "RESPONDENT", "start_char": 60, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "CALCUTTA DISCOUNT CO., LTD", "offset_not_found": false}}, {"text": "K. S. HEGDE", "label": "JUDGE", "start_char": 106, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "K.S. HEGDE*", "offset_not_found": false}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 122, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 3297, "end_char": 3312, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3314, "end_char": 3325, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3330, "end_char": 3344, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda, S. P. Nayar and R. N. Sachthey, for the appellant."}}, {"text": "Sachin Chaudhuri", "label": "LAWYER", "start_char": 3366, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, M. C. Chagla, T. A. Ramachandran'and D. N. Gupta, for the respondent."}}, {"text": "M. C. Chagla", "label": "LAWYER", "start_char": 3384, "end_char": 3396, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, M. C. Chagla, T. A. Ramachandran'and D. N. Gupta, for the respondent."}}, {"text": "T. A. Ramachandran'and", "label": "LAWYER", "start_char": 3398, "end_char": 3420, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, M. C. Chagla, T. A. Ramachandran'and D. N. Gupta, for the respondent."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 3421, "end_char": 3432, "source": "ner", "metadata": {"in_sentence": "Sachin Chaudhuri, M. C. Chagla, T. A. Ramachandran'and D. N. Gupta, for the respondent."}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 3499, "end_char": 3504, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE, J.-This is an appeal by certificate.", "canonical_name": "HEGDE"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3579, "end_char": 3598, "source": "ner", "metadata": {"in_sentence": "It arises from the decision of the Calcutta High Court in a reference under S. 66(1) of the Indian Income-tax Act, 1922 (to be hereafter referred to."}}, {"text": "S. 66(1)", "label": "PROVISION", "start_char": 3620, "end_char": 3628, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 3636, "end_char": 3663, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 66(1)", "label": "PROVISION", "start_char": 4004, "end_char": 4017, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 4025, "end_char": 4052, "source": "regex", "metadata": {}}, {"text": "3-9-1964", "label": "DATE", "start_char": 4508, "end_char": 4516, "source": "ner", "metadata": {"in_sentence": "( 3) , Whether on the facts antL in the circumstances of lhe case, the Tribunal erred in dismissing the appeal summarily on the grounds stated in its appdlate order dated 3-9-1964 ?"}}, {"text": "Manchanda", "label": "OTHER_PERSON", "start_char": 4682, "end_char": 4691, "source": "ner", "metadata": {"in_sentence": "Mr. Manchanda."}}, {"text": "R.\n\ning) Co., Ltd.", "label": "ORG", "start_char": 5242, "end_char": 5260, "source": "ner", "metadata": {"in_sentence": "R.\n\ning) Co., Ltd., quring the relevant previous year and transferred to that subsidiary company various shares held by it."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 7682, "end_char": 7699, "source": "ner", "metadata": {"in_sentence": "(2) For that the learned Appellate Assistant Commissioner of Incometax misappreciated the facts of the present case and wrongly applied the decision of the\n\nMadras High Court .in 28 I.T.R. 952."}}, {"text": "Income Tax Appellate Tribunal", "label": "COURT", "start_char": 8711, "end_char": 8740, "source": "ner", "metadata": {"in_sentence": "At that stage, as seen from the records, the Income Tax Officer applied for amending his appeal memo but that prayer was rejected by the Income Tax Appellate Tribunal."}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 9840, "end_char": 9862, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner came to the conclusion that the assessee and its subsidiary were two different legal entities."}}, {"text": "SUPREME COURT REPORTS [1973] 3 s.c.", "label": "COURT", "start_char": 10510, "end_char": 10545, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1973] 3 s.c."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 11284, "end_char": 11304, "source": "ner", "metadata": {"in_sentence": "The question hat when an assessee transfers some of h!~\n\nstockin trade to another person at a price less than the market price, whether that assessee can be considered to have made any profit merely because he has transferred some of his stock-in\n\ntrade not at the market price but at a lesser price, came up for consideration blefore the High Court of Madras in Sri Ramalinga Choodambikai Mills Ltd. v Commissioner of lncometax, MadrasC)."}}, {"text": "Shah", "label": "JUDGE", "start_char": 12914, "end_char": 12918, "source": "ner", "metadata": {"in_sentence": "Shah, J. (as he then ws), speaking for the Court stated the law at page 17 of the Report thu:; :-·\n\n\"1lte plea raised by the Income-4ax Officer is that income which could haYc be:::n earned by the a3sessees v.Js not earned, and a part of that income was earned by the Hindu undivided families."}}, {"text": "T. V. CALCUTTA", "label": "JUDGE", "start_char": 13333, "end_char": 13347, "source": "ner", "metadata": {"in_sentence": "T. V. CALCUTTA DISCOUNT CO. ("}}, {"text": "Hegde", "label": "JUDGE", "start_char": 13362, "end_char": 13367, "source": "ner", "metadata": {"in_sentence": "Hegde, J.) 957\n\nor contrivance.", "canonical_name": "HEGDE"}}, {"text": "section 147(b)", "label": "PROVISION", "start_char": 14280, "end_char": 14294, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 14624, "end_char": 14638, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Dooar's Tea Co.", "label": "ORG", "start_char": 17266, "end_char": 17281, "source": "ner", "metadata": {"in_sentence": "The ratio of the decision in W arnher' s D as well as in Dooar's Tea Co.'s case does not bear upon the question of law arising for decision in this case."}}, {"text": "A Raman and Co.", "label": "ORG", "start_char": 18050, "end_char": 18065, "source": "ner", "metadata": {"in_sentence": "It is concluded by the decision of this Court in A Raman and Co.'s Case (supra)."}}]}
{"document_id": "1973_3_959_966_EN", "year": 1973, "text": "SRI RAMAMOHAN MOTOR SERVICE\n\nCOMMISSIONER OF INCOME-TAX, HYDERABAD April 11, 1973\n\n[K. S. JIEGDE AND H. R. KHANNA, JJ.]\n\nIncome-tax Act 1922, s. 26A-Registration of firm-Minor sholWl ps partner in pcirtnership deed-Not shown as having been admitted only to bene{itl of partnership-Applications for registration and ronewal of regi&tmtion ·f firm not mentionjng letter 'P' in colrunn 6--Partnership is void under s, 30 of Partners/tip Act 1932-Application under S. 26A not complying Income-tax Rules-Registration rightly re/used.\n\nThe appellant firm according to j!s partnership deed was constituted of fh\"e partners one of whom was a minor represented by his father. One of the terms in the partnership deed was that the profit and loss of the business would be divided and bor:ne between the partners in equal shares.\n\nThe appellant firm made an application under s.26A of the Income-tax Act 1922 for the registration of the firm for the year 1956-57 on 30..6-1955. the last day for making the application. Along with the application as required by the rules, a copy of the partnership deed was submitted. On October 8, 1955 an application was made to the Registrar of firms for registration of the firm under the Partnership Act. The Registrar raised an objection to the effect that the partnership was invalid uncler ~.30 of the Partnership Act as one of the partners was a minor.\n\nOn December 18, 1955 the four adult partners informed the Registrar by letter that the minor was admitted to the tteJ>Cfils of the partnership and was not liable to share losses.\n\nThe Registrar thereafter registered the firm.\n\nThe Incometax Officer registered the firm for the assessment year 195 6-57 and renewed its registration for subsequent years up to 1961-62. But the Commissioner of Income-tax i; n exercise of his power under S. 33B of the act set aside the orders made by the Incme-tax Officer. The Tribunal and the High Court decided in favour of the Revenue.\n\nIn appeal to this Court by special leave.\n\nHELD : (i) . The assessee firm was not registered under the Indian Partnership Act before the application uncler s.26A of the Act was made, nor was the partnership deed registered under the Indian Registration Ac1.\n\nThe partnership deed submitted along with the application for registration disclosed that the partnership constituted under that deed was void in view of s. 30 of the Partnership Act as o, ne of the five partnership was a minor.\n\nHence the application made for registration was an invalid-application. The subsequent alteration of one of the terms of the partition deed, even if validily made, could not validate the application made because the alteration in q_ueson was Il!ade long after the ti':\"e prescribed for making the appllcation had exp1re<l and there was nothmg to show that the Income-tax Officer had condoned the delay in exercise of his power under the proviso to Rule 2. If the original order of registration was unauthorised, the subsequent renewals of the registration must also be held to be unauthorised.\n\n[963 FJ\n\n(ii) It was found by the Tribunal that both in the application made for registration of the firm as well as in the applications made for renewal of registration ln column 6 of the formletter 'P' was not mentioned. On the other hand the 111inor's share was shown as I/5th which means his share both in the profits as well as in the loss. The record did not show whether 959 .\n\ntho Income-tax Officer was informed 9f the letter written to the Registrar of Firms on 18-12-1955 and if so on what date he was informed about it.\n\nFrom the above facts it was clear that the applications made by the partners of the firm did not comply with the requi_rements of the rules. H<ll!Ce\n\nthose applications muld not be considered as valid applications. [9()4 Fl\n\n(iil) Since the applications for registration and renewal/ didl not conform to the requirements of the Jaw the! registration and the renewals could not have been aranted.\n\n(iv) Seclion 185(2) of the 1961 Act is not retrospective in opeation oor were the requirements of that section complied with, The plea that substantial compliance with the rules is sufficient stands negatived by the decisions of this Court, [9650] Rao Baliad11r Ray11/11 S11bba Rao and Ors, v. Commlssiontr of Incomerax, Madras, 30 J.T.R. 163 at 172, N. T. Patel & Co. v. Commisslontr of lncomt•tax, Madras, 42 J.T.R. 224 and Khan}an Lal Sewak Ram y, Commissioner of Inco111e-Tax,.U.P .. 83 l.T.R. 175, referred to.\n\nCML APPELLATE JURISDICTION : Civil Appeals Nos. 4 71 to 476 of 1970.\n\nAppeals by special leave from the judgment and order dated July 29, 1969 of the Andhra Pradesh High Court in Referred Case No. 34 of 1965.\n\nM. C. Chagla, K. Mangachary,, A. K. Verma, J, B. Dada chanji 0. C. Mafhur and Ravinder Narain, for the appellant.\n\nB. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. \" The Judgment of the Court was delivered by\n\nHEGDE J. These are connected appeals. A common quesl!ion of law arises in these appeals. That question is :\n\n\"Whether on the facts and in the circumstances of the case, the assessee firm is entitled to registration under s. 2GA of the Act.\"\n\nApplication under s. 26A of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) relating to assessment years 1956-57 to 1961-62, relevant accounting years being calendar years 1955, 1956, 1957, 1958, 1959 and 1960 were made b!y the appellant to the Income-tax Officer.\n\nThe Incometax Officer accepted '!he application relating to the assessment year 1956-57 and granted the registration asked for, by his order dated 30-6-1960. At the same time he granted renewals oi. the registration in respect of other assessment years.\n\nBut the Commissioner of Income-tax in exercise of his powers under s. 33-B of the A_ct called for and examined the papers of the case and after hearing the assessee set aside the orders made by the Income-tax Officer.\n\nThe assessee took up the matter in appeal to the Income-tax Appellate Tribunal.\n\nThe Tribunal rejected its appeal.\n\nThereafter the question of law set out earlier was\n\nreferred to the High Court under s. 66 ( 1) at the instance of the assessee. The High Court answered that question in the negative, and in favour of the Revenue.\n\nHence these appeals by special leave.\n\nThe assessee finn was constituted under a deed of partnership dated 5-2-1955; but the deed shows that the finn came into existence on January l, 1955. The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao. The last one was a minor. The partnership deed shows that he was a party to the same, being represented by his father, B. Satyanarayanamurty. One of the terms of the partn\\)rship deed is that the profit and loss of a business should be divided and borne between the partners in equal shares.\n\nThe application under s. 26A tor the assessment year 1956-57 was made on 30-6-1955, the last date for making the application.\n\nAlogwith that application, as required by the rules, a copy of the partnership deed was also sent to the Income-tax Officer,\n\nOn October 18, 1955, an application was made by the partners of the firm to the Registrar of Firms to register the finn.\n\nThe Registrar, by his letter dated December 13, 195_5, objected to the registration of the firm on the ground that the partnership was invalid under s. 30 of the Partnership Act, as one of the partners was a minor.\n\nAfter the receipt of tha!t letter, the four adult partners by their letter dated December 18, 1955 informed the Registrar that \"'the minor is admitted to the benefits of the partnership with the consent of all the partners.\n\nHe has nothing to do with the loss of the firm.\n\nWe therefore agree to record our consent and amend the application accordingly and send the same to the Registrar of Finns as directed.\" After the receipt of that letter, the Registrar of Firms registered the assessee finn, on January 10, 1956. It is not known whether a copy of that letter had been sent to the Income-tax Officer and if so when it was sent.\n\nAs mentioned earlier, the Commissioner of Income-tax, set aside the registration granted by the Income-tax Officer. He came to the conclusion that the partnership in question was ab initio void. He rejected the contention '!hat the letter sent to the Registrar of Firms validated the partnership deed.\n\nHe further opined that several of the tenns in the pavtnership deed adversely affected the minor and therefore the partnership cannot be held to be valid.\n\nOn appeal, the Tribunal upheld the conclusions reached by the Commissioner.\n\nIn addition, it held that the applications for registration as well as for renewal did not confonn to the requirements oi the law and consequently they were invalid applications.\n\nThe High Court in an elaborate judgment affirmed the decision of the Tribunal that the partnership was not valid in law.\n\nIt did not adss !tself to the question wher the aPPlications made for registration and renewal were otherwise invalid. We are of opinion that the applications for registration and renewal did not conform to the requirements of the law and consequently the registration or the renewals as the cP$e may be could not have been granted. In that view we have not thought it necessary to go into the question whether the partnership was validated as a result of the letter written by he adult partners to the Registrar of Firms on 18-12-1955. ·\n\nSection 26A prescribes : \"(1) Application may be made to the Income-tax Officer on beha1f of any firm; constituted under an instrument of partnership specifying the individual shares of the partners for registration for the purposes of this Act and of any other enactment for the time being in force relating to income-tax or super-tax. ( 2) The application shall be made by such person or persons, and at such times and shall contain such\n\nparticulars and shall be in such form, and be verified m such manner, as may be prescribed; and it shall be dealt with by the Income-tax Officer in such manner as may be prescribed.\"\n\nSub-s. (5) of s. 59 prescribes that: \"Rules made under this section shall b~ published in the Official Gazette and shall 1hereupon have effect as if enacted in this Act.\"\n\nRule 2 framed under the Act says that : \"Any firm constituted under an Instrument of partnership specifying the individual shares of the partners may, under th~ provisions of section 26-A of the Indian Income-tax Act, 1922 (hereinafter in these rules referred to as. the Act), register with the Incometax Officer, the particulars contained in the said Instrument on application made in this behalf.\n\nSuch application shall be signed by all the partners (not being minors) personally, or in the case of a dissolved firm by all persons (not being minors) who were partners in the firm immediately bfore dissolution and by the legal representative of any such partner who is deceased, and shall, for any year of assessment up to and including the assessment for the year ending on the 31st day of March, 1953, be made before the 28th\n\nFebruary, 1953, and for any year of assessment subse quent therto, be made :-\n\n(a) where the firm is not registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is not reistcred under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act.- ( i) within a period of six months of the constitution of the firm or before the end of the 'previous year' of the firm whichever is earlier, if ihe firm was constituted in that previous year,\n\n(ii) before the end of the previous year in any other case;\n\n(b) where the firm is registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is registered under ithe Indian Registration Act, 1908 (XVI of 1908), before the end of the previous year of the firin; and\n\n(c) where the application is or renewal of registration under Rule 6 for any year, before the 30th day <>f June of that year :\n\nProvided that the Incometax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.\"\n\nThe a'sessee firm was not registered under the Indian Partnership Act before the application under s. 26A of the Act was lllllde nor was the partnership deed registered under the Indian Registration Act.\n\nThe Partnership deed submitted along with the application for registration disclosed that the partnership constituted under that deed was void in view of s. 30 of the Partnership Act as one of the five partners was a minor. Hence the application made for registration was an invalid applicatioo.\n\nThe subsequent alteration of one o~ the terms of the partition deed, even if validly made, cannot validate the application made because the alteration in question was made long after the time prescribed for making the application had expired and there is nothing on record to show that the Income-tax officer had condoned the delay in exercise of his power under the proviso to Rule\n\n2. If the original order of registration was unauthorised, the subsequent renewals of that registration must also be held to be unauthorised.\n\nRule 3 requires the assessee to make application under that rnle in the form annexed to that rule.\n\nColumn 6 of the fom1\n\nrequir~ the applicants to mention the \"Share in the balance of profits (or loss) ( annas and pies in the rupee)''.\n\nNote 2 in that form lays down that \"If any partner is entitled to share in profits but is not liable to bear a similar proportion of any losses this fact should be indicated by putting against his s.hare in column :6 the letter \"P\".\n\nRule 4( 1) prescribes the conditions and the manner in which 1he Income-tax Officer can grant the certificate asked for.\n\nSub~ -rule (2) of that rule says that ii the conditions mentioned in sub-\n\nrule ( l) are not satisfied, the Income-tax Officer \"shall pass an order in writing refusing to recognise the instrument of partnership, or the certified copy thereof, and furnish a copy of such order to the applicants\".\n\nRule 6 lays down the form in which re, newal applications were required to be made.\n\nColumn 6 of that form is similar to Column 6 of the form under rule 3. Note 2 under that fom1 is similarly worded as note 2 in the form under rule 3. It was found by the Tribunal that both in the application made for registration of the firm as well as in tile applications made for renewal of registration, in column 6 of the form Jetter \"P'' was\n\nnot mentioned. On the other hand tile minor's share was shown JS 1/5tll which means his share both in the profits as well as in •the loss.\n\nAs mentioned earlier, the record before us does not show whether the Income-tax Officer was inforinect of the letter written to the Registrar of Finns on 18-10-1955. and if so on what date he was informed about it.\n\nFrom the facts set out apove, it is clear that the applications made by the partners of the firm did not comply with the requirements of the rules.\n\nHence those applications cannot be considered as valid applications.\n\nTn Rao Balwdur Ravulu Subba Rao and ors. v. Commissioner of Income-tax, Madras('), Venkatarama Ayyar J. speaking for the Court observed: ''Thus, if a firm is registered, it ceases to be ll; unit for purposes of taxation and the profits earned by 1t are taken, in accordance witll the general law of partnership, to have been earned by the individual partners according to their shares and they are taxed on their individual income including tlleir shares of profits. The advantages of this provision are obvous. The rate. of tax chargeable will not be on the higher scale provided for\n\n(I) I .T. R. 163 at 172;\n\nl\\AMAMOHAN MOTOR SERVICE V. C.!.T. (Hegd\"_, /,) 965\n\nincomes on the higher levels bJ.it on the lower one at which the income of the individual partner is chargeable.\n\nThus, registfation confrs on the partners a benefit to, which they would not have been entitled but for sectioll 26A, and such a right being a creature of the statute, can\n\nb~ claimed only in accordance with the statute, which confers it, and a person who seeks relief under section 26A must bring himself strictly within its terms before he can claim the benefit of it.\n\nIn other words, the right is regulated solely by the terms of the statute and it would be repugnant to the character of such a right to add to those tenns by reference to other laws.\n\nThe statute must l:je construed as exhaustive in regard to the conditions under which it can be claimed.\"\n\nThis decision lays down that before a person can claim the benefit of s. 26A, he must strictly comply with the requirements of that section. In view of sub-s. (2) ol' that section, he is alsorequird to comply with the requirements o~ the relevant rules.\n\nFc:ilure to comply either with the requirements of sub-s. ( 1) or\n\n>Ubs. (2) of s. 26A, disentitles the applicant to the benefit of that section. The same view was taken by this Court in N.T. Patel & Co. v. Commissioner of Income-tax, Madras(''). The decision of this Court in Khanjan Lal Sewak Ram v. Commissioner of Income-Tax, U.P.( 2) lends support to that conclusion.\n\nIt was contended by Mr. Chagla, learned Counsel for the appeflant that we should not allow technicalities to come in the\n\nWJ.Y of our doing substantial justice to the parties. According to him substantial compliance with the rules set out above is sufficient D meet the c:; ds of justice. In support of his plea he placed reliance on s. 185(2) of the Income-tax Act, 1961. We are unable to accede to that cc:, tention? Section 185(2) of the 1961 Act is not retrospective in operation nor were the requirements of that provision complied \\I ih. The plea t!Jat sublstantial compliance with the rules is sufficient stands negatived by the\n\ndecisions referred to earlier.\n\nYet another contention taken by Mr. Chagla was that the High Court did not base its decision on the grounds mention--\n\n(I) 4! LT. R. 224.\n\n(2) 83 LT. R. 175.\n\n.cd above; but it decided against the appellants on the ground that the partnership is ab initio void.\n\nHence we should not take up those grounds afresh. This contention is irrelevant. As mentioned .earlier, one of the grounds on which the Tribunal' upheld the order of the Commissioner was that the applications made did not conform to the requirements of' the law.\n\nWe agree with that conclusion.\n\nIn the resu)t these appeals fail and they are dismissed. Taking into consideration the facts and circumstances of the case, we direct the parties to bear their own costs in this. Court.\n\nAppeal$ dismissed.", "total_entities": 72, "entities": [{"text": "SRI RAMAMOHAN MOTOR SERVICE", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "SRI RAMAMOHAN MOTOR SERVICE", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, HYDERABAD", "label": "RESPONDENT", "start_char": 29, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, HYDERABAD", "offset_not_found": false}}, {"text": "April 11, 1973", "label": "DATE", "start_char": 67, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "SRI RAMAMOHAN MOTOR SERVICE\n\nCOMMISSIONER OF INCOME-TAX, HYDERABAD April 11, 1973\n\n[K. S. JIEGDE AND H. R. KHANNA, JJ.]"}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Income-tax Act 1922", "label": "STATUTE", "start_char": 121, "end_char": 140, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 142, "end_char": 148, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "S. 26A", "label": "PROVISION", "start_char": 461, "end_char": 467, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "s.26A", "label": "PROVISION", "start_char": 865, "end_char": 870, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "Income-tax Act 1922", "label": "STATUTE", "start_char": 878, "end_char": 897, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "30..6-1955", "label": "DATE", "start_char": 955, "end_char": 965, "source": "ner", "metadata": {"in_sentence": "The appellant firm made an application under s.26A of the Income-tax Act 1922 for the registration of the firm for the year 1956-57 on 30..6-1955."}}, {"text": "October 8, 1955", "label": "DATE", "start_char": 1110, "end_char": 1125, "source": "ner", "metadata": {"in_sentence": "On October 8, 1955 an application was made to the Registrar of firms for registration of the firm under the Partnership Act."}}, {"text": "December 18, 1955", "label": "DATE", "start_char": 1388, "end_char": 1405, "source": "ner", "metadata": {"in_sentence": "On December 18, 1955 the four adult partners informed the Registrar by letter that the minor was admitted to the tteJ>Cfils of the partnership and was not liable to share losses."}}, {"text": "S. 33B", "label": "PROVISION", "start_char": 1820, "end_char": 1826, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act 1922", "statute": "the Income-tax Act 1922"}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 2060, "end_char": 2082, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.26A", "label": "PROVISION", "start_char": 2113, "end_char": 2118, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 2370, "end_char": 2375, "source": "regex", "metadata": {"statute": null}}, {"text": "18-12-1955", "label": "DATE", "start_char": 3513, "end_char": 3523, "source": "ner", "metadata": {"in_sentence": "tho Income-tax Officer was informed 9f the letter written to the Registrar of Firms on 18-12-1955 and if so on what date he was informed about it."}}, {"text": "S11", "label": "PROVISION", "start_char": 4242, "end_char": 4245, "source": "regex", "metadata": {"statute": null}}, {"text": "Khan}an Lal Sewak Ram y", "label": "OTHER_PERSON", "start_char": 4397, "end_char": 4420, "source": "ner", "metadata": {"in_sentence": "(iv) Seclion 185(2) of the 1961 Act is not retrospective in opeation oor were the requirements of that section complied with, The plea that substantial compliance with the rules is sufficient stands negatived by the decisions of this Court, [9650] Rao Baliad11r Ray11/11 S11bba Rao and Ors, v. Commlssiontr of Incomerax, Madras, 30 J.T.R. 163 at 172, N. T. Patel & Co. v. Commisslontr of lncomt•tax, Madras, 42 J.T.R. 224 and Khan}an Lal Sewak Ram y, Commissioner of Inco111e-Tax,."}}, {"text": "M. C. Chagla", "label": "JUDGE", "start_char": 4698, "end_char": 4710, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, K. Mangachary,, A. K. Verma, J, B. Dada chanji 0."}}, {"text": "K. Mangachary", "label": "JUDGE", "start_char": 4712, "end_char": 4725, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, K. Mangachary,, A. K. Verma, J, B. Dada chanji 0."}}, {"text": "A. K. Verma", "label": "JUDGE", "start_char": 4728, "end_char": 4739, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, K. Mangachary,, A. K. Verma, J, B. Dada chanji 0."}}, {"text": "B. Dada", "label": "JUDGE", "start_char": 4744, "end_char": 4751, "source": "ner", "metadata": {"in_sentence": "M. C. Chagla, K. Mangachary,, A. K. Verma, J, B. Dada chanji 0."}}, {"text": "C. Mafhur", "label": "LAWYER", "start_char": 4762, "end_char": 4771, "source": "ner", "metadata": {"in_sentence": "C. Mafhur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4776, "end_char": 4791, "source": "ner", "metadata": {"in_sentence": "C. Mafhur and Ravinder Narain, for the appellant."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 4813, "end_char": 4824, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. \""}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4826, "end_char": 4837, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. \""}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4842, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the respondent. \""}}, {"text": "HEGDE", "label": "JUDGE", "start_char": 4924, "end_char": 4929, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHEGDE J. These are connected appeals."}}, {"text": "s. 2G", "label": "PROVISION", "start_char": 5145, "end_char": 5150, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 5184, "end_char": 5190, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5198, "end_char": 5225, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "30-6-1960", "label": "DATE", "start_char": 5606, "end_char": 5615, "source": "ner", "metadata": {"in_sentence": "he application relating to the assessment year 1956-57 and granted the registration asked for, by his order dated 30-6-1960."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 5781, "end_char": 5786, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 5982, "end_char": 6011, "source": "ner", "metadata": {"in_sentence": "The assessee took up the matter in appeal to the Income-tax Appellate Tribunal."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 6134, "end_char": 6139, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "5-2-1955", "label": "DATE", "start_char": 6371, "end_char": 6379, "source": "ner", "metadata": {"in_sentence": "The assessee finn was constituted under a deed of partnership dated 5-2-1955; but the deed shows that the finn came into existence on January l, 1955."}}, {"text": "B. Satyanarayanamurti", "label": "OTHER_PERSON", "start_char": 6502, "end_char": 6523, "source": "ner", "metadata": {"in_sentence": "The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao.", "canonical_name": "B. Satyanarayanamurti"}}, {"text": "B. Bapaiah Pantulu", "label": "OTHER_PERSON", "start_char": 6530, "end_char": 6548, "source": "ner", "metadata": {"in_sentence": "The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao."}}, {"text": "B. Seetaramaiah", "label": "OTHER_PERSON", "start_char": 6555, "end_char": 6570, "source": "ner", "metadata": {"in_sentence": "The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao."}}, {"text": "B. Subrahmanyam", "label": "OTHER_PERSON", "start_char": 6577, "end_char": 6592, "source": "ner", "metadata": {"in_sentence": "The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao."}}, {"text": "B. Rammonanrao", "label": "OTHER_PERSON", "start_char": 6601, "end_char": 6615, "source": "ner", "metadata": {"in_sentence": "The firm consisted of five partners namely\n\n(1) B. Satyanarayanamurti;\n\n(2) B. Bapaiah Pantulu;\n\n(3) B. Seetaramaiah; ( 4) B. Subrahmanyam and (5) B. Rammonanrao."}}, {"text": "B. Satyanarayanamurty", "label": "OTHER_PERSON", "start_char": 6736, "end_char": 6757, "source": "ner", "metadata": {"in_sentence": "The partnership deed shows that he was a party to the same, being represented by his father, B. Satyanarayanamurty.", "canonical_name": "B. Satyanarayanamurti"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 6932, "end_char": 6938, "source": "regex", "metadata": {"statute": null}}, {"text": "30-6-1955", "label": "DATE", "start_char": 6983, "end_char": 6992, "source": "ner", "metadata": {"in_sentence": "The application under s. 26A tor the assessment year 1956-57 was made on 30-6-1955, the last date for making the application."}}, {"text": "October 18, 1955", "label": "DATE", "start_char": 7166, "end_char": 7182, "source": "ner", "metadata": {"in_sentence": "Alogwith that application, as required by the rules, a copy of the partnership deed was also sent to the Income-tax Officer,\n\nOn October 18, 1955, an application was made by the partners of the firm to the Registrar of Firms to register the finn."}}, {"text": "December 13, 195_5", "label": "DATE", "start_char": 7320, "end_char": 7338, "source": "ner", "metadata": {"in_sentence": "The Registrar, by his letter dated December 13, 195_5, objected to the registration of the firm on the ground that the partnership was invalid under s. 30 of the Partnership Act, as one of the partners was a minor."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 7434, "end_char": 7439, "source": "regex", "metadata": {"statute": null}}, {"text": "January 10, 1956", "label": "DATE", "start_char": 8002, "end_char": 8018, "source": "ner", "metadata": {"in_sentence": "After the receipt of that letter, the Registrar of Firms registered the assessee finn, on January 10, 1956."}}, {"text": "Section 26A", "label": "PROVISION", "start_char": 9513, "end_char": 9524, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59", "label": "PROVISION", "start_char": 10152, "end_char": 10157, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 10485, "end_char": 10495, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 10505, "end_char": 10532, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "31st day of March, 1953", "label": "DATE", "start_char": 11092, "end_char": 11115, "source": "ner", "metadata": {"in_sentence": "Such application shall be signed by all the partners (not being minors) personally, or in the case of a dissolved firm by all persons (not being minors) who were partners in the firm immediately bfore dissolution and by the legal representative of any such partner who is deceased, and shall, for any year of assessment up to and including the assessment for the year ending on the 31st day of March, 1953, be made before the 28th\n\nFebruary, 1953, and for any year of assessment subse quent therto, be made :-\n\n(a) where the firm is not registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is not reistcred under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act.- ( i) within a period of six months of the constitution of the firm or before the end of the 'previous year' of the firm whichever is earlier, if ihe firm was constituted in that previous year,\n\n(ii) before the end of the previous year in any other case;\n\n(b) where the firm is registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is registered under ithe Indian Registration Act, 1908 (XVI of 1908), before the end of the previous year of the firin; and\n\n(c) where the application is or renewal of registration under Rule 6 for any year, before the 30th day <>f June of that year :\n\nProvided that the Incometax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.\""}}, {"text": "28th\n\nFebruary, 1953", "label": "DATE", "start_char": 11136, "end_char": 11156, "source": "ner", "metadata": {"in_sentence": "Such application shall be signed by all the partners (not being minors) personally, or in the case of a dissolved firm by all persons (not being minors) who were partners in the firm immediately bfore dissolution and by the legal representative of any such partner who is deceased, and shall, for any year of assessment up to and including the assessment for the year ending on the 31st day of March, 1953, be made before the 28th\n\nFebruary, 1953, and for any year of assessment subse quent therto, be made :-\n\n(a) where the firm is not registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is not reistcred under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act.- ( i) within a period of six months of the constitution of the firm or before the end of the 'previous year' of the firm whichever is earlier, if ihe firm was constituted in that previous year,\n\n(ii) before the end of the previous year in any other case;\n\n(b) where the firm is registered under the Indian Partnership Act, 1932 (IX of 1932), or where the deed of partnership is registered under ithe Indian Registration Act, 1908 (XVI of 1908), before the end of the previous year of the firin; and\n\n(c) where the application is or renewal of registration under Rule 6 for any year, before the 30th day <>f June of that year :\n\nProvided that the Incometax Officer may entertain an application made after the expiry of the time-limit specified in this rule, if he is satisfied that the firm was prevented by sufficient cause from making the application within the specified time.\""}}, {"text": "Indian Partnership Act, 1932", "label": "STATUTE", "start_char": 11268, "end_char": 11296, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Registration Act, 1908", "label": "STATUTE", "start_char": 11371, "end_char": 11400, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Partnership Act, 1932", "label": "STATUTE", "start_char": 11800, "end_char": 11828, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Registration Act, 1908", "label": "STATUTE", "start_char": 11901, "end_char": 11930, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 12429, "end_char": 12451, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 12481, "end_char": 12487, "source": "regex", "metadata": {"linked_statute_text": "the Indian Registration Act, 1908", "statute": "the Indian Registration Act, 1908"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 12568, "end_char": 12584, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 12741, "end_char": 12746, "source": "regex", "metadata": {"linked_statute_text": "the Indian Registration Act, 1908", "statute": "the Indian Registration Act, 1908"}}, {"text": "18-10-1955", "label": "DATE", "start_char": 15030, "end_char": 15040, "source": "ner", "metadata": {"in_sentence": "As mentioned earlier, the record before us does not show whether the Income-tax Officer was inforinect of the letter written to the Registrar of Finns on 18-10-1955."}}, {"text": "Venkatarama Ayyar", "label": "JUDGE", "start_char": 15394, "end_char": 15411, "source": "ner", "metadata": {"in_sentence": "v. Commissioner of Income-tax, Madras('), Venkatarama Ayyar J. speaking for the Court observed: ''Thus, if a firm is registered, it ceases to be ll; unit for purposes of taxation and the profits earned by 1t are taken, in accordance witll the general law of partnership, to have been earned by the individual partners according to their shares and they are taxed on their individual income including tlleir shares of profits."}}, {"text": "section 26A", "label": "PROVISION", "start_char": 16365, "end_char": 16376, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 16823, "end_char": 16829, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 17088, "end_char": 17094, "source": "regex", "metadata": {"statute": null}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 17406, "end_char": 17412, "source": "ner", "metadata": {"in_sentence": "It was contended by Mr. Chagla, learned Counsel for the appeflant that we should not allow technicalities to come in the\n\nWJ.Y of our doing substantial justice to the parties."}}, {"text": "s. 185(2)", "label": "PROVISION", "start_char": 17716, "end_char": 17725, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 17733, "end_char": 17753, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 185(2)", "label": "PROVISION", "start_char": 17801, "end_char": 17815, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}]}
{"document_id": "1973_3_967_972_EN", "year": 1973, "text": "SARASPUR MILLS CO. LTD. v.\n\nRAMANLAL CHIMANLAL & ORS.\n\nApril 12, 1973\n\n[A. N. GROVER AND C. A. VAIDIALINGAM, JJ.)\n\nBombay Industrial Disputes Act, Gujarat A1nend111ent 1962--Clauses 13 and 14 of Section 3-Enrustnzent of work which in ordinarily a part of the undertaking-Legal obligation of a factory to run a canteen under\n\nSection 46 of Factories Act-Entrust1nent of running the canteen to a Cooperative Society-Factories Act 1948, Section 2(1) work incidental to the manufacturirlg process-Running of a canteen by a textile 1nill.\n\nThe appellant Textile Mill had a statutory obligation, as a factory, under the provisions of Section 46 of Factories Act and the Rules made thereunder for maintaining a canteen for its workers.\n\nThe appellant entrusted the management of the canteen to a cooperative society. The workers of the canteen demanded additional wages and dearness allowance,\n\nin terms of certain awards claiming that they were the employee of the appellant within the meaning of Clauses (13) and (14) of Sec. 3 of the Bombay Industrial Disputes Act, 1938 as amended by Gujarat Legislature in 1962. The workers contended. that the running of the canteen was an ordinary part of the undertaking of appellants, since it was a statutocy obligation for the appellant to do so. The appellant on the other hand contended that the cooperative society was neither the agent nor the contractor of appellant.\n\nRejecting the appea1,\n\nHELD : Under the Factories Act, it was the duty of the appellant to run and maintain canteen for the use of its employees. Under c1all3es ( 13) and ( 14) of Section 3 as amended in 1962, the definition of an employee is extended by a fiction (if law and certain employees are recognised 1l9 statutory employees. The workers in question fall under the said definition. [972B]\n\nAhmedabad Mfg. & Calico Printing Co. Ltd. and Ors. v. Their Workmen. [1964] 2 S.C.R. 838, relied upon.\n\nBasti Sugar Mills Ltd. v. Ram Ujagar and Ors. [1953] II L.L.J. 647, followed,\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1957\n\nG of 1968. '\n\nAppeal by special leave from the Award dated March 26, 1968 of the Industrial Court Gujarat Ahmedabad in Appeal ( fC) No. 58 of 1966. .\n\nS. V. Gupte, P. C. Bhartari, and l. B. Dadachanji & Co., for If th; appellant.\n\nV. M. Tarkunde, and S. S. Shukla, for respondents 1 (a) to l(hj.\n\n9f1\n\n1he Judgment of the Court was delivered by\n\nGROVER, J : This is an Appeal by special leave from an Order of the Industrial Court,, Gujarat which reversed an order made by the 2nd Labour Court, Alunedabad.\n\nRamanlal Chimanlal and others are the workers of a canteen which is run by the Saraspur Mills Canteen Co-operative Society Limited, Ahmedabad (hereinafter called the co-operative society).\n\nThe appellant company is responsible for maintaining the canteen under the provisions of S. 46 of the Factories Act and the rules made thereunder.\n\nThe appellant handed over to the co-operative society the task cf running the canteen. Theworkers mentioned above filed an application before the 2nd Labour Court at Ahmedabad under S. 79 of the Bombay Industrial Relations Act, 1946 (hereinafter called the Act), complaining that the appellant was not paying them the wages and deamess allowances\n\nas per the directions contained in the Award of the Bombay Industrial Court made in Reference No. 18 of 194 7 and supplementary Award given in certain miscellaneous applications of 1956 and 1962 respectively relating to additional wages sanctioned by the said Award. It was alleged by the applicants in support of their claim that by virtue of certain amendments made in the Act in the definition cf the word \"employer\" they became workers of the appellant, which was bound to pay wages and dearness allowances settled by the aforesaid Award and !he supplementary Awards referred to.\n\nThe case of the workmen was that the appellant was running the canteen only because it was under an obligation to do so under the Factories Act and the rules made thereunder.\n\nThus the running of the canteen was ain ordinary part of the undertaking of the appellant. It was admitted that the appellant did not run the canteen itself but halllded over the premises to the co-operative society to run the canteen for the use and welfare of. the mill's employees and discharge its legal obligations.\n\nThe appellant denied the allegations of the workmen that they were its employees.\n\nIt was claimed that the aforesaid workers had never been employed either by the appellant or by its agent\n\nor contractor.\n\nThe workers in fact were stated to have been G employed by the licences of the appellant and, therefore, there was no question of the wage settlements or Awards being binding on the appellant. The 2nd Labour Court by its Order dated 14th April, 1966 dismissed the claim of the workmen, who filed an appeal before the Industrial Court, which was allowed by it' order dated 26th March, 1968. The Industrial Coult held that H the employees of the co-operative society, who were working in the canteen, were employees of the appellant and, their wages\n\nand dearness allowance etc. were payable in accordance with\n\nA the Awards mentioned before. The direction was made that the appellant should pay the difference in wages and dearness allowance in accordance with those Awards.\n\nThe only question which requires determination is whether the canteen workers employed by the co-operative society could be treated as employees of the appellant within the meaning of the relevant provisions of the Act for the 1'UI'POSC of payment of their wages in spite of the fact that they are employees of the co operative society and were hieing paid wages by that society.\n\nPrior to the Act, Bombay. Industrial Disputes Act 1938 was in force in the erstwhile province of Bombay. Under that Act no statutory employees were created but only ithose persons who were directly employed by the employer were treated as employees.\n\nThe Act replealed the 1938 Act. Section 3(13) of the Act contained the definition of the term \"employee\". Before its amen:!- ment this provision was as follows :\n\n\"(13) .. ·.. .. .. and includes :\n\n(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause ( e) of clause 14 ..... ..\n\nSub-clause (e) of clause 14 is as follows : ( 14) \"employer\" includes . . . . . . . . ( e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, 'the . . . . . . owner of the undertaking.\n\nThe Factories Act, 1948 came into force on April l, 1949.\n\nSection 2 ( 1 ) of that Act is as follows:\n\n\"(I ) 'worker' means a person employed ' directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of G the machinery or permises used for manufacturing process, or in any other kind of work incidental to, or com1ected with, the manufacturing process, or the sub-\n\n11, ject of manufacturing process\"\n\nThe expression 'occupier' was also defined by section 2(n) to mean the person .who has .ultimate control over the affairs of H the factory, and where the said affairs were entrusted to a managing !!gent such aent shall be deemed to be the occupier of the factory.\n\nThe BomblaY. High Court had held in certain matters which were brought before it that in spite of the fact that the\n\n14-L7~7Sup Cl/73\n\nco-opetative society wa-s mentioned in the Bombay Factories A Rules, 1950, the employee employed by the co-operative society could not bje treated as employees under the Act. The Gujarat . Legislature passed an Act in 1962 amending clause ( 13) and ( 14) of Section 3 of the Act. After the amendment these clauses run as follows: \"( 13) 'employee' means. any person (including an apprentice) employed in any industry to any skilled or unskilled manual, supervisory, technical or cleric.al work for hire or reward, whether the teons cl employment be express or implied and includes-( a) a person employed in the execution of' any work in respect of which the owner of an undertaking is an employer within the meaning of sub-clause ( e) of clause (14) .\n\n\" • • • •\n\n(14) 'employer' includes-\n\n• • • • ( e) Where the owner of any undertaking in the course pf or for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking to any person otherwise than as the servant or agent of the owner, the owner of the undertaking.\" ........... .\n\nThe Industrial Court was of the view that the term \"employee\" under the Act had been given an extended meaning. An employee was not only a person who was employed by the employer or over whom the employer had con\\rol, but also certain types of persons had been constituted statutory employees under the Act.· - Before such a person could become the employee of the owner of the undertaking, the conditions that must bje fulfilled were: (1) the owner of the undettaking must entrust to any person the execution of the whole or any part of any work; (2) such entrustment rn ust be in the course of or t'or the purpose of conducting the under\n\ntaking; (3) such entrustment must be otherwise than_ as the ser\n\nvant or agent of the owner and ( 4) such work must be any work which is ordinarily a part of the undertaking:\n\nThe Industrial Court referred to the earlier decisions including that of the Labour Appellate Tribunal and of the Bambay High Court and examined the circumstances in which the relevant provisions of the Act came to be amended. It wa~ pointed out that in the statment of ob.iects and reasons appearing in the Bill to the Amendiitg Act, it was stated that the definition of an employee was being amended so as to cover persons employed by a contractor or any other person to whom the owner of an undertaking had entrusted the execution of arry work which was ordinarily part\n\nof the undertaking. The definition of 'employer' was also amend• ed correspondingly. According .to the dustrial Court there was a statutory obligation on the part of the mils to provide a canteen and this obligation had been discharged biY the mills by entrusting that task to the co-operative society, even if there was no positive evidence of such entrustment of work. It was pointed out that B the activities of running the canteen could hardly have been undertaken by !he co-operative society unless it was entrusted to it by the mills. lt was finally held that although the c<r<>perative society which was the real employer and not the present appellant, but by virutue of the fiction created by the amendment introduced\n\nin the Act, the employees of the Society became tile employees of the appellant. They were, therefore, entitled to the benefits of the Awards.\n\nThe sole point which has been strenuously urged on behalf of !the appellant is that on a proper constmction of the amended clauses ( 13) and ( 14) of Section 3 of the Act, the workers employed in the canteen whtch was being run biY the co-operative society, cquld not have been held to be employees of the appellant. It is coDtended that the appellant was under a statutory obligation because of section 46 of the Factories Act and the relevant rules made thereunder to maintain the Canteen for the w<irkers, but the canteen was being actiially run by the co-operative Slleiety and the appellant had nothing to do with it nor did it pay any E wages to the employees of. the society who were working in the canteen.\n\nThe matter seems to be concluded by the judgment of. this Court in Civil Appeal No. 1044 of 1968 decided on April 14, 1972, in which an identical argument had been addressed that certain gardeners who had been employed by a contractor for working in the gardens of the textile mills, could not be said to fall within the definition of the word \"employed\" as contained iii Section 3 (13) of the Act. In that case reference was made to the decision in Bast/ Sugar Mills Ltd. v. Ram Ujagar.and Ors.(') It had been held that the workmen fell wtthin the definition of that word as given lib' S. 2 (z) of. the U.P. Industrial Disputes Act 1947 as they were persons employed in the industry to do manual work for G reward. The workmen had been employed by a contractor with whom the mills had contracted in the course of conducting the industry for execution by the said contractor of the work of removal of press mud which is ordinarily a part of the industry.\n\nThe above case was treated as an authority for the proposi!tion that an employee engaged in a work or operation which was inci- H dentally connected with the main industry was a workman if other requirements of the statute were satisfied and that the Malis in tha'!\n\n(I) [1964] (2) S. C. R. 838.\n\n(2) (1953] 11. L. L. J. 647.\n\ncase were workers.\n\nIt was pointed out that the bungalows and gardens on which the Malis in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the Malis were held to be engaged in operation incidentally connected with the main industry carried out by the employer. The High Court in Ahmedabad Mfg. & Calico Printing Co. Ltd, & Ors\n\nv. Their Workmen(') had relied on the above ratio and came to the conclusion that the workers in order to come within the definition of an \"employee\" need not necessarily be directly connected with the manufacture of textile fabrics. The decision in Basti Sugar Mills' case was treated as nding in the former case.\n\nSince, under the Factories Act it was the duty of the appellant to run and maintain the canteen tor the use of its employees, it appears to us that the ratio of the decision in Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. Their Workmen would, be fully applicable in which the same provisions of the Acf were considered. ·\n\nThe appeal, therefore, must fail and it is dismissed with costs.\n\nS.B.W.\n\nAppeal dismissed.", "total_entities": 56, "entities": [{"text": "SARASPUR MILLS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "SARASPUR MILLS CO. LTD", "offset_not_found": false}}, {"text": "RAMANLAL CHIMANLAL & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "RAMANLAL CHIMANLAL & ORS", "offset_not_found": false}}, {"text": "April 12, 1973", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "April 12, 1973\n\n[A. N. GROVER AND C. A. VAIDIALINGAM, JJ.)"}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 72, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Bombay Industrial Disputes Act", "label": "STATUTE", "start_char": 115, "end_char": 145, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 195, "end_char": 204, "source": "regex", "metadata": {"linked_statute_text": "Bombay Industrial Disputes Act", "statute": "Bombay Industrial Disputes Act"}}, {"text": "Section 46", "label": "PROVISION", "start_char": 325, "end_char": 335, "source": "regex", "metadata": {"linked_statute_text": "Bombay Industrial Disputes Act", "statute": "Bombay Industrial Disputes Act"}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 339, "end_char": 352, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Cooperative Society-Factories Act 1948", "label": "STATUTE", "start_char": 394, "end_char": 432, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2(1)", "label": "PROVISION", "start_char": 434, "end_char": 446, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Society-Factories Act 1948", "statute": "Cooperative Society-Factories Act 1948"}}, {"text": "Section 46", "label": "PROVISION", "start_char": 628, "end_char": 638, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Society-Factories Act 1948", "statute": "Cooperative Society-Factories Act 1948"}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 642, "end_char": 655, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sec. 3", "label": "PROVISION", "start_char": 1016, "end_char": 1022, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Society-Factories Act 1948", "statute": "Cooperative Society-Factories Act 1948"}}, {"text": "Bombay Industrial Disputes Act, 1938", "label": "STATUTE", "start_char": 1030, "end_char": 1066, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 1451, "end_char": 1464, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 1591, "end_char": 1600, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Industrial Disputes Act, 1938", "statute": "the Bombay Industrial Disputes Act, 1938"}}, {"text": "[1964] 2 S.C.R. 838", "label": "CASE_CITATION", "start_char": 1879, "end_char": 1898, "source": "regex", "metadata": {}}, {"text": "S. V. Gupte", "label": "PETITIONER", "start_char": 2198, "end_char": 2209, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari, and l. B. Dadachanji & Co., for If th; appellant."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 2211, "end_char": 2225, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari, and l. B. Dadachanji & Co., for If th; appellant."}}, {"text": "l. B. Dadachanji & Co.", "label": "LAWYER", "start_char": 2231, "end_char": 2253, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, P. C. Bhartari, and l. B. Dadachanji & Co., for If th; appellant."}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 2278, "end_char": 2292, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, and S. S. Shukla, for respondents 1 (a) to l(hj."}}, {"text": "S. S. Shukla", "label": "LAWYER", "start_char": 2298, "end_char": 2310, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, and S. S. Shukla, for respondents 1 (a) to l(hj."}}, {"text": "GROVER", "label": "JUDGE", "start_char": 2393, "end_char": 2399, "source": "ner", "metadata": {"in_sentence": "9f1\n\n1he Judgment of the Court was delivered by\n\nGROVER, J : This is an Appeal by special leave from an Order of the Industrial Court,, Gujarat which reversed an order made by the 2nd Labour Court, Alunedabad."}}, {"text": "2nd Labour Court, Alunedabad", "label": "COURT", "start_char": 2524, "end_char": 2552, "source": "ner", "metadata": {"in_sentence": "9f1\n\n1he Judgment of the Court was delivered by\n\nGROVER, J : This is an Appeal by special leave from an Order of the Industrial Court,, Gujarat which reversed an order made by the 2nd Labour Court, Alunedabad."}}, {"text": "Ramanlal Chimanlal", "label": "PETITIONER", "start_char": 2555, "end_char": 2573, "source": "ner", "metadata": {"in_sentence": "Ramanlal Chimanlal and others are the workers of a canteen which is run by the Saraspur Mills Canteen Co-operative Society Limited, Ahmedabad (hereinafter called the co-operative society).", "canonical_name": "RAMANLAL CHIMANLAL & ORS"}}, {"text": "Saraspur Mills Canteen Co-operative Society Limited, Ahmedabad", "label": "ORG", "start_char": 2634, "end_char": 2696, "source": "ner", "metadata": {"in_sentence": "Ramanlal Chimanlal and others are the workers of a canteen which is run by the Saraspur Mills Canteen Co-operative Society Limited, Ahmedabad (hereinafter called the co-operative society)."}}, {"text": "S. 46", "label": "PROVISION", "start_char": 2834, "end_char": 2839, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 2847, "end_char": 2860, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "2nd Labour Court at Ahmedabad", "label": "COURT", "start_char": 3039, "end_char": 3068, "source": "ner", "metadata": {"in_sentence": "Theworkers mentioned above filed an application before the 2nd Labour Court at Ahmedabad under S. 79 of the Bombay Industrial Relations Act, 1946 (hereinafter called the Act), complaining that the appellant was not paying them the wages and deamess allowances\n\nas per the directions contained in the Award of the Bombay Industrial Court made in Reference No."}}, {"text": "S. 79", "label": "PROVISION", "start_char": 3075, "end_char": 3080, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Industrial Relations Act, 1946", "label": "STATUTE", "start_char": 3088, "end_char": 3125, "source": "regex", "metadata": {}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 3956, "end_char": 3969, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "26th March, 1968", "label": "DATE", "start_char": 4902, "end_char": 4918, "source": "ner", "metadata": {"in_sentence": "The 2nd Labour Court by its Order dated 14th April, 1966 dismissed the claim of the workmen, who filed an appeal before the Industrial Court, which was allowed by it' order dated 26th March, 1968."}}, {"text": "Industrial Disputes Act 1938", "label": "STATUTE", "start_char": 5712, "end_char": 5740, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay", "label": "GPE", "start_char": 5783, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "Industrial Disputes Act 1938 was in force in the erstwhile province of Bombay."}}, {"text": "Section 3(13)", "label": "PROVISION", "start_char": 5969, "end_char": 5982, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act 1938", "statute": "Industrial Disputes Act 1938"}}, {"text": "clause 14", "label": "PROVISION", "start_char": 6285, "end_char": 6294, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act 1938", "statute": "Industrial Disputes Act 1938"}}, {"text": "clause 14", "label": "PROVISION", "start_char": 6323, "end_char": 6332, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act 1938", "statute": "Industrial Disputes Act 1938"}}, {"text": "Factories Act, 1948", "label": "STATUTE", "start_char": 6698, "end_char": 6717, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "April l, 1949", "label": "DATE", "start_char": 6737, "end_char": 6750, "source": "ner", "metadata": {"in_sentence": "The Factories Act, 1948 came into force on April l, 1949."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 6753, "end_char": 6762, "source": "regex", "metadata": {"linked_statute_text": "The Factories Act, 1948", "statute": "The Factories Act, 1948"}}, {"text": "section 2(n)", "label": "PROVISION", "start_char": 7198, "end_char": 7210, "source": "regex", "metadata": {"linked_statute_text": "The Factories Act, 1948", "statute": "The Factories Act, 1948"}}, {"text": "Bombay Factories A Rules, 1950", "label": "STATUTE", "start_char": 7595, "end_char": 7625, "source": "regex", "metadata": {}}, {"text": "Gujarat . Legislature", "label": "ORG", "start_char": 7731, "end_char": 7752, "source": "ner", "metadata": {"in_sentence": "The Gujarat ."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7810, "end_char": 7819, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Factories A Rules, 1950", "statute": "the Bombay Factories A Rules, 1950"}}, {"text": "Bambay High Court", "label": "COURT", "start_char": 9607, "end_char": 9624, "source": "ner", "metadata": {"in_sentence": "Before such a person could become the employee of the owner of the undertaking, the conditions that must bje fulfilled were: (1) the owner of the undettaking must entrust to any person the execution of the whole or any part of any work; (2) such entrustment rn ust be in the course of or t'or the purpose of conducting the under\n\ntaking; (3) such entrustment must be otherwise than_ as the ser\n\nvant or agent of the owner and ( 4) such work must be any work which is ordinarily a part of the undertaking:\n\nThe Industrial Court referred to the earlier decisions including that of the Labour Appellate Tribunal and of the Bambay High Court and examined the circumstances in which the relevant provisions of the Act came to be amended."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11088, "end_char": 11097, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 11334, "end_char": 11344, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 11352, "end_char": 11365, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 14, 1972", "label": "DATE", "start_char": 11762, "end_char": 11776, "source": "ner", "metadata": {"in_sentence": "1044 of 1968 decided on April 14, 1972, in which an identical argument had been addressed that certain gardeners who had been employed by a contractor for working in the gardens of the textile mills, could not be said to fall within the definition of the word \"employed\" as contained iii Section 3 (13) of the Act."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12026, "end_char": 12035, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2", "label": "PROVISION", "start_char": 12241, "end_char": 12245, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act 1947", "label": "STATUTE", "start_char": 12263, "end_char": 12291, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Basti Sugar Mills", "label": "ORG", "start_char": 13568, "end_char": 13585, "source": "ner", "metadata": {"in_sentence": "The decision in Basti Sugar Mills' case was treated as nding in the former case."}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 13651, "end_char": 13664, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 13811, "end_char": 13820, "source": "ner", "metadata": {"in_sentence": "Since, under the Factories Act it was the duty of the appellant to run and maintain the canteen tor the use of its employees, it appears to us that the ratio of the decision in Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. Their Workmen would, be fully applicable in which the same provisions of the Acf were considered. ·"}}]}
{"document_id": "1973_3_973_986_EN", "year": 1973, "text": "LAKSHMI KANT IHA\n\nCOMMISSIONER OF WEALTII TAX BIHAR AND ORISSA\n\nApril 16, 1973\n\n[K. S. HEGDB AND H. R. KHANNA, JJ.]\n\nWe<1/tlr Tax Act 1951, s. 5(1) VIII and 5(l)XV-ls jewellery for personal use exempted-Whefher brokerage charges to be excluded and right to compensation included in the net wealth of the assessee.\n\nThe assessee, former Maharaja of Darbhanga filed a return for the assessment year 1957-58 declaring his net wealth of more than two and half crores. A revised return was filed subsequently showing a lesser amount. The wealth-tax officer determined the net wealth of the assessee to be more than four and half crores.\n\nThe assessee held shares and stocks in various companies. The assessee gave correct valuation of those shares but claimed a deduction of more than 2 lakhs by way of brokerage which he would have to pay lf those shar .. were sold in the open market. Further, the assessee claimed deduction from the net wealth of the value of jewellery intended for personal use.\n\nThirdly, the assessee claimed deduction of more than 36 Iakhs. payable to him as compensation by the Government for acquiring his Zamindari l'State, on the ground that it was not known as to when and in what manner the amount would be paid. -\n\nThe wealth-tax officer rejected all his claims and after estimating the value of compensation to be 75 per cent of its face value, Rs. 27,65,564 was added to the total wealth of the assessee. ·\n\nOn appeal, the Appellate Assistant Commissioner affirmed the decision of the wealth-tax. officer.\n\nThe Tribunal also rejected the claims of the assessee so far as the brokerage commission and the jewellery was concerned. It further held that the valuation of the bonds should be deter mined to be-65 per cent of the face value. On a reference to the High Court, alt three questions were answered against the assessee. On appeal before this C-0urt. all those three points were raised.\n\nPartly allowing the appeal,\n\nHELD: (i) As regards the question relating to the jewellery, it was decided in Commissioner of\"Wealth Tax, Gujarat v. Arundhati Balkrishna, [1970) 77, J.T.R. 505, that section 5(1)(XV) dealt with jewellery in general whether intended for personal us0 of the assessee or not while jewellery intended for personal use of the assessee came within the scope of section 6(l)(viii) of the Act. It was accordingly held that the value of jewellery of the assessee intended for rsonal use of the assessee would stand excluded under section 5(1)(vili) of the Act in computation df the net wealth of the assessee. In the present case, in absence of any plea that the jewellery was not intended for the assessee's personal use and in absence of any retrospective operation of the F\"mance Act of 197i excluding jewellery from the purview of cl. VIII of Sec. 5 (I) of the Act, the value of the jewellery for his personal use will not be included in the net wealth of the assessee. [9770)\n\n(ii) Regarding brokeragerosion section 7(1) df the Act provides that subject to any rule made in this behalf, the value of any asset shall be 973\n\nestimated to be the price which in the opinion of the wealth-tax officer would fetch if sold in the open market.\n\nThere is nothing in the language of Sec. 7(1) of the Act which permits any deduction on account of the expenses of sale which may be borne by the assessee. The vale aecording to Sec. 7 (I) has to be the price which the asset would fetch 1f soldin the open market.\n\nTherefore, so far as the construction of Sec. 7(1) of the Act is concerned, in view of its plain language, there is no scope of excluding the expenses of sale of the asset from the price which the asset would fetch if sold in the open market. (980C, DJ\n\nDuke of Buccleuc/1 v. Indian Revenue Commissioner, H967] A.C. 506, referred to.\n\n(iii) As regards inclusion of the compensation receivable by the assessee from the Government, sec. 32(2) of the Bihar Land Reforms Act, 1950 provides that the amount of compensation payable in terms of a Compensation Assessment-roll shall be paid in cash or in bonds or partly in cash and partly in bonds. Therefore, as soon as the estate vests in the State, the proprietor or a tenure-holder has the right to get com pensation and this right to get compensation comes under the definition\n\n\"assets\" as given in sect\\on 2(e) of the Wealth Tax Act.\n\n[982D-E,\n\n983 DJ\n\nMaharajkumar Kamal Sin'gh v. Commissioner of Wealth Tax, [1967] 65 J.T.R. 460, referred to.\n\n(iv) As would appear from the order of tl!e Tribunal, the value or compensation payable under the Bihar Land Reforms Act has been estimated for the purpose of wealth-tax to be 65 per cent of the amount of compensation determined.. There is no .cogent ground to interfere in this regard.\n\n[986A] ·\n\nCommissioner of Wealth Tax v. U. C. Mahatab,\" H970] 78 J .. T.R. 214, discussed and distinillished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 296 of 1970.\n\nAppeal by certificate from the judgment and order dated February 28, 1968 of the Patna High Court in Tax Case No. 8 of 1966. .....\n\nR. J. Ko/ah and I. N. Shroff, for the appellant.\n\nF. S. Nariman, Addl. Solicitor-General of India, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J. This appeal on certificate is directed against the judgment of Patna High Coun whereby that court answered the following three questions referred to it under section 27 of the Wealth Tax Act, 1957 (Act No. 27 of 1957) (hereinafter referred to as the Act) against tithe assessee :\n\n\"(1 ) Whether in comuting the market value of the shares the assessee is entitled to the deduction of a sum of Rs. 2,30,546 by way of brokerage commission;\n\n( 2) Whether on a true. construction of section :S(l)(viii) and S(l)(xv) of the Wealth Tax Act, the assessee is entitled to the exclusion of the value of jewellery arnoilnting to Rs. 27,27,330 from the computation ot his total wealth? ( 3) Whether any part of. the amount of Rs. 36,87,419 fixed as compensation payable to the assessee under the Bihar Land Refonns Act is liable for inclusidn in the total wealth of the assessee?\"\n\nThe assesse was former Maharajadhiraja of Darbhanga. The matter relates to the assessment year 1957-58, the relevant valua\n\ntion date for which was March 31, 1957. The assessee filed a return on April.22, 1958 declaring a net wealth of Rs. 2,77,46,489.\n\nA revised return was filed subsequently showing !he total weal!h to be Rs. 2,69,58,130. The Wealth Tax Officer determined the net wealth of the assessee to be Rs. 4,57,85,996.\n\nThe as5esseeileld shares and stocks in various limited D companies. In tbe return filed by him the assessee gave correct valuation of those shares and stocks as given in the stock exchange quotations and. the quotations furnished by well-known brokers, but he claimed a deduCl!ion of a sUlll of Rs. 2,30,546 by way of brokerage. It was contended on behalf o~ the assessee that in effecting the sales of the shares and stocks, bl'okerage would have E to be paid. The Wealth Tax Officer disallowed the claim in this\n\nrespect on the ground that there was no provision for deducting the broker&, Ke cotnmisslon.\n\nIn Part IV of the return filed by the assessee, he mentioned 'the value of. jewellery intended for personal use to be Rs. 27,27,330.\n\nIt was claimed that as the said jewellery was intended for personal r uso, it should not be taken into account for com.puting the total wealth of. the assessee. The assessee sought to bring his case under section 5(1)(viii) of the Act. The Wealth Tax Officer rejected this claim of the assessee on the ground that the aforesaid clause did not cover jewellery.\n\nThe assessee had held zamindari estate which was acquired G by the Government under the Bihar Land Refonns Act.\n\nThe as5essee was to receive a sum of Rs. 36,87,419 from tbe Government of. Bihar as compensation in that connection. The assessee claimed that the compensation payable to him could not be include~ irt his total wealth because it was not known as to when and in what manner the amount would be paid. The Wealth Tax\n\n'II Officer held that the right to receive compensation represented a valuable asset which had to be included in the total wealth of the assessee.\n\nAs the whole of the compensation had not yet been paid up to the date of the valuation, the .Wealth Tax Officer esti- , - .\n\n. mated the value of the compensation to be 75 per cent of its face value. Rs. 27,65,564 were accordingly included on that account in the total wealth of the assessee.\n\nOn appeal the Appellate Assistant Commissioner affirmed the decision of the Wealth Tax Officer on the three questions mentioned above. The Appellate Assistant Commissioner also held that the items of jewellery could be considered only under section 5 ( 1 )(xv) oi the Act and not under any other provision.\n\nOn further appeal to the Income Tax Appellate Tribunal, the Tribunal rejected the claim of the assessee for deduction on account of brokerage commission.\n\nSo far as the jewellery was concerned, the Tribunal dealt with the submission made on behalf of the assessee that clause (xv) of section 5 ( 1 ) of the Act had been deleted by the Finance Act of 1963 and orved that as long as that clause was in the statute book, that clause governed the exemptions granted by section 5 in preference to clause (viii).\n\nThe Tribunal consequently rejected the claim of the assessee in respect of the jewellery.\n\nAs regards the compensa1tion payable under the Bihar Land Reforms Act to the assessee, contention was raised on behalf of the assessee that the market value of the compensation bonds was about 50 per cent of its face value. The Tribunal observed in this connection that the value was generally estimated at 65 per cent oi the amount of compensation determined by the Compensation Officer. It was accordingly held that the valuation of the bonds should be determined to be 65 per cent of the face value.\n\nThe questions reproduced above were thereafter referred to the High Court at the instance of the assessee.\n\nThe High Court while dealing with the first qeustion, observed that in estimating the value of an asset regards must be had to the value it would fetch. The word \"fetch\", in the opinion of the High Court, must mean the quoted price only and brokerage and other inevitable expenses would have to be ignored. On question No. (2), the High Court expressed the opinion that the jewellery was outside the scope of clause (viii) of section 5(1) of the Act and could be dealt with only under clause (xv).\n\nAs regards question No. (3), the High Court relied upon its earlier decision in the case of Maharajkumar Kamal Singh v. Commissioner of Wealth Tax.(') It was observed that merely because the amount\n\nof compensation payable to the assessee had not yet been paid and there was likely to be much delay in paying the same, the said amount could not be deducted from the assets for the purpose of the Act. Questions ( 1 ) and ( 2) were accordingly answered in the ll\n\nnegathe while question No. (3) was answered iii the affinuative.\n\n(1) (1967] 65 I. T. R. 460.\n\nIn appeal before us Mr. Kolah on behalf of tl; te appellant has assailed the correctness of the answers given by the High Court on all the three questions. As against that, the learned Additional Solicitor General has canvassed for the correctness of the judgment of the High Court so far as the answers to questions ( 1 ) and ( 3} are concerned.\n\nAs regards question No. (2), the Additional Solicitor General has made certain submissions to which reference would be made hereafter.\n\nWe may at the .outset deal with question No. (2) relating to the jewellery. As mentioned earlier, the High Court took the view that as jewellery was dealt with specLfically under clause (xv) of section 5 (I) of the Act, the jewellery would be outside the scope of clause (viii) altogether. This view of the High Court cannot be sustained because of the decision of this Court in the\n\ncase of Commissioner of Wealth Tax, Gujarat v. Arundhati Ba/- Krishna.(') It was observed in that case by this Court that section 5 (I )(xv) dealt with jewellery in general whether intended for personal use of the assessee or not, while jewellary intended for personal use of the assessee came within the scope of section 5 (1 )(viii) of the Act. It was accordingly held that the value of jewellery of the assessee intended for personal use of the assessee would stand excluded under section 5 (1) (viii) of the Act in the computation of the net wealth.\n\nThe learned Additional Solicitor General has frankly conceded that in view of the aforesaid deciion of this Court, he cannot support the view taken by the High Court in the respect. It has, however, been sutlmitted by him that we should remand the case with a view to ascertain as to how much ' of the jewellery in question was intended for the personal use of the assessee.\n\nWe find it difficult to accede to tltls contention.\n\nThe matter is rather old as it relates to the assessment year 1957-58. The case of the assessee before the Wealth T-ax Officer was that the entire jewellery worth Rs. 27,27,330 was intended for his personal use and should not be included in the total wealth.\n\nThe Wealth Tax Officer disallowed the claim of the assessee irr this respect on the ground that the items of jewellery were covered by caluse (xv) and not by clause (viii) of section 5(1) of the Act. The claim of the assessee that the jewellery in question was intended for the personal use of the assessee was not rejected. No plea was also raised in appeal before the Appellate Assistant Commissioner or the Tribunal that the jewellery was not intended for the personal use of the assessee. It, therefore, cannot be said on the 11eord that the claim of the assessee that the jewellery in question was intended for his personal use has been controverted.\n\nIn the circumstances, we must proceed on the assumption for the\n\npurpose of the assessment during therelevant year. that the jewellery was intende.~. for the personal use of the assessee.\n\n(!) [19701 77 I. T. R. 505.\n\nIt may be mentioned that jewellery has been excluded by section 32 ol the Finance (No. 2)Act of 1971 (Act 32 of 1971) from the purview of clause (viii) of section 5(1) of the Act with effect from April 1, 1963. This amendment made in clause (viii) would not make any material difference because the said amendment is to operate with effect from April 1, 1963, while. we are dealing with the assessment year 1957-58. As such, the said amendment .can oblviously not apply to the assessment in question.\n\nQuestion No. (1), as would appear from the above, relates to 1he claim of the assessee for deduction on account of brokerage .commission from the value of shares and stocks held by hini. The stand which has been taken on behalf of the assessee is that as :and when he sells the shares and stocks in question, he would have 'to pay brokerage commission.\n\nAs such, it is urged that in , computing the value of this asset, the price which it would fetch 1n the market should be reduced by the brokerage which would 'have to be paid on account of the transaction of the sale. We find\n\njt diffioult to accede to this contention. Section 7 ( 1) of the Act I.eads as under :\n\nH$ubject to any rules made in this behalf, the value of any asset, other than cash, for the purposes of this Act, shall ble estimated to be the price which in the opinion of the Wealth-tax Qfficer it would fetch if sold in the open market on the valuation date.\"\n\n'Bare readinR of the section makes it plain that subject to any rules which may be made in this behalf, the value ol the assets, other than cash, has to be the price which the assets, in the :opinion ol the Wealthtax Officer, woqld fetch in the open market .on the valuation date. It would, therefore. follow that in the absence of any rule prescribing a different criterion, the value of an asset, other than cash, should be taken to be the price which it would fetch if sold in the open market on the valuation date.\n\nNo rules prescribing a different criterion in respect of the value of quoted stocks and shares have been brought to our notice.\n\nRule 1-C of the Wealth-tax Rules relates 'to the market value of unquoted preference Shares, while rule 1-D of the said rules -relates to market value of unquoted equity shares of companies\n\n-other than investment companies and managing agency• companies.\n\nThe value of the stocks and shares in question, in the cireum. stances, would have to be estimated to be the price which they would fetch if sold in the open market on the valuation .date. The authorities concerned under the Aot for this purpose\n\naccepted the valuation as given in stock exchange quotations and the quotations furnished by \"1\\'ell-known brokers. No objection. can be taken to this mode of valuation. Indeed, this was the mode\n\nA which had been adopted by the assessee himself in the retut11 filed by him.\n\nThere is nothing in the language of section 7 ( 1) of the Ac\\ which permits any deduction on account of the exp11nses of sale\n\n8 which may be borne by the assessee if he were to sell the asset in question in l)ie open market. The value according to section 7 ( 1 ) has to be the price which the asset would fetch ii sold in the open market. In a good many cases, the amount which the vendor would receive would be less than the price fetched by the asset. The vendor may, for example, have to pay for the brokerage commission or may have to incur other expenses for\n\n. C effectuating the sale. It is not, however, the amount which the vendor would receive after deduction of those expenses but the price which the asset would fetch when sold in the open market as would constitute the value of the asset for the purpose of section 7 (1 ) of the Act. To accede to the contention advanced on behalf of the appellant would be reading in section D 7 (1 ) the words \"to the asses see' after the words \"it would fetch\",\n\nalthough the legislature has not inserted those words in the statute.\n\nSm:h a course would not be permissible unless there is anything in\n\nthe relevant provisions which may show that the intention of the legislature was that the value of an asset would be the price fetched after ded11cting the sale expenses.\n\nIt, no doubt, appears to be somewhat harsh that in computing the value of an asset only the price it. would fetch if sold m the open market bas to be taken into account and the expenses which would have to be l:llOrne in making the ale have to be excluded from consideration, This, however, is a matter essentially for the legislature. No resort can be made to an equitable principle for there is no equity about a tax.\n\nSo far as the construction of section 7 ( 1) of the Act is concerned, in view of its plain language, there i~ no escape from the conclusion that the expenses in effecting the sale of the asset in the open market cannot be deducted.\n\nThe material part of the language of section 7 ( 1) of the Wealth-tax Act, 1957 is similar to that of sub-section (1) of section 3 6 of the Estate Duty Act which was J:>rougbt on the\n\nstatute book elidier in 1953. Sub-section. (1) of section 36 of the Estate Duty Act reads !IS under :\n\n\" ( 1) Tl1e principal value of any property shall be estimated to be the price which, in the opinion of the Controller, it would fetch if sold in the open inarket at the time of the deceased's death.\"\n\nSection 48 of the Estate Duty Act was as under :\n\n\"Where the Controller is satisfied, that any additional expese in administering or in realising property\n\nhas. been incurred by reason of the property Ueing situate out of India, he may make an allowance from the value of the property on account of such expense not exceeding in any case five per cent on the value of the property.\"\n\nOn account of the similarly in language of the material parts of section 7 (1) of the Wealth Tax Act and section 36( 1) of the Estate Duty Act, the value cf on asset, other than cash, for the purpose of. section 7 (1) of the Wealth Tax Act should tie the same as its value for the purpose of section 36(1). of the Estate Duty Act. Section 48 of the Estate Duty Act reproduced above allows a deduction up to 5 per cent on account of expenses for administring or realising property situated out of India in computing the value of that property. It would follow from the above that where the legislature intended that allowance or deduction should be made from the value of property, it made an express provision to that effect.\n\nThe fact that no provision was made in respect of expenses which may have to be borne by the assessee in effecting the sale of an asset shows that in computing the value of an asset, such expenses cannot be deducted from the price which the asset would fetch if. sold in the open market.\n\nSection 36 ( 1) of the Estate Duty Act was based upon section 7 ( 5) of the U.K. Finance Act, 1894 and section 60(2) of the U.K. Finance Act, 1910, while section 48 of the Estate Duty Act was based upon section 7(3) of the U.K. Finance Act, 1894.\n\nAccording to section 7(5) of the U.K. Finance Act, 1894, \"the principal value of any property shall be estimated to be the price which, in the opinion of the commissioners, such property would fetch if sold in the open market at .the time of the death of the deceased\". Section 60(2) of the U.K. Finance Act, J910 provides that \"in estimating the principal value of any property under section 7 ( 5) of the principal Act. . . -the commissioners shall fix the price of the property according to the market price at the time of the death of the deceased, and shall not make any reduction in the estimate on account of the estimate being made on the assumption that the whole property is to placed on the market at one and the san1e time\". In the context of the above provisions, it has been observed on page 393 of Green's Death Duties, Sixth Edition :\n\n\"The price which property 'fetches' is the gross price paid by the purchaser, without deduction for the vendor\"s costs and expenses. This is so, even where the property is subject to a trust for sale. But if the property to be\n\nvalued is merely a share in an unadministered estate, or in the proceeds of sale of trust property which must be\n\nrealised for the purpose of distribution, the expenses of the executors or trustees under the old title should be taken into account.\"\n\n98 I\n\nThe matter has been dealt with in Dymond's Death Duties, Forteenth Edition, page 569 in the following words :\n\n\"The price which the property fetches js the gross sale price, without deduction for the costs of sale, except that, if the property is part of an unadministered estate or a share of property subject to a trust already in operation which involve~ conversion, or if the property consists of certified chattels of national, etc., interest (see P. 868), allowance for costs may be made.\"\n\nThe House of Lords had to deal with this aspect of the matter in the case of Duke of Buca/euch v. Inland Revenue Commissioners.(') After referring to section 7(5) of the U.K. Finance Act, 1894 Lord Reid observed:\n\n\"I am confirmed in' my opinion by the fact that the Act permits no deduction from the price fetched of the expenses involved in the sale (except in the case of property abroad under sub-section (3)).\"\n\nE Lord Morris in this context observed:\n\n\"The value of a property is to be estimated to be the price which it would 'fetch' if sold in the open market at , the time of the death of the deceased. This points to the price which a purchaser would pay. The net amount that a vendor would receive would be less. There would be F costs of and incidental to a sale. It would seem to be harsh or even unjust that allowances cannot made in respect of them. But the words of the statute must be followed.\"\n\nSimilar observations were made by Lord Hodson and Lord Guest.\n\nG We are, therefore, of the view that the High Court rightly answered question No. (I) relating to the claim for deduction on account of brokerage commission against the assessee.\n\nQuestion No. (3) pertains to the compensation payable to the assessee under the Bihar Land Reforms Act.\n\nTwo contentions have been advanced on hehalf of the appellant in this Court wfth H regard to the above question. fo is argued in the first instance that compensation payable to the assessee under the Bihar Land\n\n(I) [1967] A. C. 506,\n\nReforms At does not constitute an asset as can be taken into account in computing the total wealth cl the assessee.. In the alternative, it is urged that in computing the value of compensation the Tribunal should have taken the value to be 5 0 per cent and and not 65 per cent of the amount of compensation.\n\nNone of these contentions, in our opinion, is well founded.\n\nThe Bihar Land Refonns Act, 1950, (Bihar Act 3 of 1950) provides for the transference to the State of the interests ol proprietors and tenure. holders in Ian.ct and of other interests in land. According to section 3(1) of the Act, the State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, specified in the notification, have passed to and become vested in the State. Section 4 enumerates the consequences of the vesting of an estate or tenure in the State. One of those consequences is that the estate or tenure, including the interest of the proprietor or tenure-holder in such an estate or tenure shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrences and such proprietor or tenure-holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act. Section 19 makes provision for the appointment of Compensation Officer who shall in the case of an estate or tenure which has vested in the State, prepare in tl!e prescribed form and manner a Compensation Assessment-roll containing the gr08S asset and the net income of each proprietor and tenure-holder of estates and tenure~ and the compensation to be paid in accordance with the provisions of the Act to such proprietor or tenureholder and all other persons whose interests are transferred to the State. Section 23 prescribed the mode of computation of net income, while section 24 gives the rate of compensation and the mode of its determination. According to section 26 there should be a preliminary publication of Compensation Assessment-roll.\n\nSection 27 gives a right of appeal from an order passed by a Compensation Officer to a Judge of the High Court.· After all objections and appeals have been disposed of, there has to be a final publication of the Compensation Assessment-roll in accordance with section 28 of the Act. Section 32 provides for the manner of pay, me111 of compensation. Sub-section (2) of that section reads.\n\n\"The amount of compensation so payab\\e in terms of a Compensation Assessment-roll as finally published shall be paid in cash or in bonds or partly in cash and partly in bonds.\n\nThe bonds shall. be either negotiable or non-negotiable and non-transferable and be H payable in forty equal instalments to the person named therein and shall carry interest at two and a hall' per centum per annum ,..ith effect from the date of issue.\"\n\n. Section 33 makes provisio~ for ad interim paymept to the propnetors after the date of vesting and before the day of payment of compensation under susection (2) of section 32 of the Act, Perusal of the different provisions of Bihar Land Refonns Act shows that as soon as the estate or tenure of a proprietor or a\n\ntenholder vests in the State, he becomes entitled to receive compensation. The fact that the payment of compensation in tenns of the provisions of the Act may be deferred and be spread over a number of years does ilot affect the right of th~ proprietor oi\n\ntenure-holder to the compensation.\n\nThe assessee, in our opinion, was vested with a right to get compensation immediately his land was vested in the State. Section 2 ( e) of the Act defines \"assets\" C to include property of every description, movable or immovable, but does not include certain catgories of property with which we are not concerned.\n\nThe word \"property\", as mentioned tiy this Court in the case. of Ahemed G. H. Arifj and Others v. Commissioner' of JV ca/th tax(') is a term of the widest import and subject to any limitation which the context may require, it signifies every-possible interest which a person can clearly hold and enjoy.\n\nThe definition of the \"assets\" as given in section 2(e) of the Act, D\n\nthough not exhaustive shows its wide anlplitude and we see no reason as to why the right to receive compensation cannot be included amongst the assets of an assesee,\n\nAccording to Mr. Kolah, the amount of compensation had not been determined by the valuation date and as such it could not be included in the assets o~ the assessee. There is, however, no material on the record to -show that the amount of compensation had not been detennined by the valuation date.\n\nThe fact that the assessee had originally shown the amount. of compensation payable to be Rs. 92,27,422 in his return and it was only in the revised return . that he stated that t]).e amount of compensation payable to him had been determined by the Compensation Officer to be Rs. 36, 87, 419 would not necessarily show that the amount of compensation had not been determined tw the valuation date.\n\nAccording to the order of the Wealth Tax Officer the contention which was raised on behalf of tho assessee was that the compensation money should not be included in the total wealth because it was not known as to when and in what manner the amount would be received. The Appellate Income Tax Tribunal in this; context observed :\n\n\"The value of the zamindary compensation payable to the assessee had been determined by the Componsa- - tion Officer at Rs. '3.6,87,419.\n\nFor the purpose of assessment the Wealth Tax Officer had determined the\n\n(I) [1970] 76 I. T. K: 471.\n\nvalue at 7 5 % of the compensation determined.\n\nThis has been sustained on appeal by the App. Asst. Com, missioner who has found that a part of the compensatio1f had been adjusted against Government dues outstanding from the assessee. So, the assessee is deemed to have received full value for that part of the compensation.\n\nIt is subbnitlted on behalf of the assessee that the market value of the Bihar Zamindary Compensation bonds is about 50% of the amount of the bonds.\n\nThe Tribunal has taken all these facts into consideration in determin ing the value of compensation payable under the Bihar Land Reforms Act in the case of several-assessees and\n\nthe Tribunal has generally estimated such 'l?lllue for Wealth Tax purposes at 65% of the amount of the compensation determined. In this case also we would direct that the valuation be taken at 65% of the amount compensation determined by the Compensation Officer.\"\n\nThe above observations as well as the form of question No. (3) show that no controversy was raised by the assessee on the D score that the amount of compensation had not been determined. by the valuation date.\n\nAssuming for the sake of argument that the amount of .compensation paya[lle to the assessee had not been determined by the Compensation Officer by the valuation date, tllat fact would not justify the exclusion Of the compensation payable E from the assets of the assessee.\n\nThe right to receive compensatioJ! because vested in the assessee the moment he was divested of his estate and the same got vested in the State in pursuance of the provision of Bihar Reforms Act. As the estate of the assessee . which vested in the State was known and as the formula fixing the amount of compensation was prescribed by the statute, the F amount of compensation was to all intents and purposes a matter of calculation.\n\nThe fact that the necessary calculation had. not been made and the amount of. compensation had consequently not Wen quantified by the valuation date would not take com• pensation payable to the assessee out of the definition of assets or make it cease to be property.\n\nThe right to receive G compensation from the State is a valuable right. more so when it is based upon statute and the liability to pay is not denied by the State. It is no doubt true that the compensation is not payable immediately and its payment might be spread over a µeriod of 40 years. but that £act would be relevant only for the µurpose of evaluating the right to compensation.\n\nIt would not detract from the proposition that the right to. receive compensation, H even though the date of payment is deferred is propertv and .constitutes asset for the purpose of Wealth Tax Act. 11 •\n\nThe Patna High Court in the case of Maharajkumar Kamal Singh v. Commissioner of Wealth Tax (supra) held that the right to receive compensation under the Bihar Land Reforms Act constituted \"asset\" for the purpose of Wealth Tax Act. The view taken in that case was approved by a Full Bench of Patna High Court in the case of Maharaj Kumar Kamal Singh v. Commissioner of Wealth Tax( 1).\n\nWe see no cogent ground to take a different view.\n\nIt may also be observed that the Andhra Pradesh Hig11 Court in five cases, namely, Mir lmdad Ali Khan v. Commissioner of Wealth Tax('), Rani Bhagya Laxmamma v. Commissioner of Wealth Tax(\"), V. Chandramani Pattamaba Devi v. Commissioner of Wealth Tax('), Vandrevu Venkappa Rao v. Commissioner of Wealth Tax(') and P. V. G. Raju v. Commissioner of Wealth\n\nTa.~(') has held that the compensation payable on the abolition of estates can be taken into account for the purpose of Wealth Tax Act. Similar view has been taken biy the Madhya Pradesh High Court in Sardar C. S. Angre v. Commissioner of Wealth\n\nTax(') and Allahabad High Court in Maharaja Pateshwari Pd. Singh v. Commissioner of Wealth Tax(').\n\nMr. Kolah has invited our attention to a decision of the Calcutta High Court in the case of Commissioner o~ Wealth Tax\n\nv. U. C. Mahatab (') wherein that court held that till the final publication of the Compensation Assessment-roll under the West Bengal Estates Acquisition Act, the assessee had no legal right to compensation and the same could not be included in the definition of \"assets\" in the Wealth Tax Act. It is, in our opinion. not necessary to express any view with regard to •the correctness of that decision. Suffice it to say that the decision in that case proceeded upon the assumption that the provisions of the West Bengal Estates Acquisition Act, 1953 were materially different from those of the Bihar Land Reforms Act.\n\nIt was, in fact. on that ground that the learned Judges of the Calcutta High Court distinguished the case of Maharaj Kumar Kamal Singh v. Co111missioner of Wealth Tax (supra) as well as the decision of the Patna High Court which is now the subject matter of the present appeal.\n\nWe are also nO'I: impressed by the contention advanced on behalf of the appellant that the value of the compensation should have been determined for the purpose of Wealth Tax Act to be\n\n50 , per cent of the amount o.f compensation and not 65 per cent.\n\n!1) [1972) 84 I. T. R. 240. ff 131 [1966] 62 l. T. R. 60\n\n(2) [1961) 50 I. T. R. 2t6.\n\n(4) [1967) 64 I. T. R. 147.\n\n(6) [1970] 78 !. T. R. 60\n\n(5) [1968] 69 l. T. R. 552.\n\n(7) [t968] 69 I. T. R. 336.\n\n(9) [t970] 78 I. T. R. 2t4. 15-797Sup. Cl/73\n\n(8) [1970) 78 I. T. R. 581\n\nAs would appear from the order of the Tribunal, the value of A compensation payable under the Bihar Land Reforms Act has been generally estimated for the purposo of Wealth Tax Act to be 6S per cent of the amount of compensation deterinined. We see no cogent ground to interfere in this respect.\n\nAs a result of the above, we .uphold the answers given by the Hiib Court in respect of the first and third questions. So far as question No. (2) is concerned, we vacate the answer given by the Hiib Court and answer that question in the affirmative in favour of the assessee.\n\nThe appeal is disposed of accordingly, In the circumstances, the parties are left to bear their own costs of this Court as well as in the High Court.\n\ns. c.", "total_entities": 98, "entities": [{"text": "IHA\n\nCOMMISSIONER OF WEALTII TAX BIHAR AND ORISSA", "label": "RESPONDENT", "start_char": 13, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX BIHAR AND ORISSA", "offset_not_found": false}}, {"text": "April 16, 1973", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "LAKSHMI KANT IHA\n\nCOMMISSIONER OF WEALTII TAX BIHAR AND ORISSA\n\nApril 16, 1973\n\n[K. S. HEGDB AND H. R. KHANNA, JJ.]"}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Tax Act 1951", "label": "STATUTE", "start_char": 126, "end_char": 138, "source": "regex", "metadata": {}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 140, "end_char": 147, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1951", "statute": "Tax Act 1951"}}, {"text": "section 5(1)(XV)", "label": "PROVISION", "start_char": 2117, "end_char": 2133, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(l)(viii)", "label": "PROVISION", "start_char": 2306, "end_char": 2324, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(1)(vili)", "label": "PROVISION", "start_char": 2472, "end_char": 2490, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 5", "label": "PROVISION", "start_char": 2789, "end_char": 2795, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(1)", "label": "PROVISION", "start_char": 2955, "end_char": 2967, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7(1)", "label": "PROVISION", "start_char": 3221, "end_char": 3230, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7", "label": "PROVISION", "start_char": 3363, "end_char": 3369, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7(1)", "label": "PROVISION", "start_char": 3491, "end_char": 3500, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 32(2)", "label": "PROVISION", "start_char": 3880, "end_char": 3890, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 3898, "end_char": 3926, "source": "regex", "metadata": {}}, {"text": "R. J. Ko", "label": "LAWYER", "start_char": 5039, "end_char": 5047, "source": "ner", "metadata": {"in_sentence": "R. J. Ko/ah and I. N. Shroff, for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5055, "end_char": 5067, "source": "ner", "metadata": {"in_sentence": "R. J. Ko/ah and I. N. Shroff, for the appellant."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 5089, "end_char": 5102, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Addl."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 5138, "end_char": 5156, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the respondents."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 5158, "end_char": 5169, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the respondents."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5174, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "Solicitor-General of India, T. A. Ramachandran, S. P. Nayar and R. N. Sachthey, for the respondents."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 5256, "end_char": 5262, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J. This appeal on certificate is directed against the judgment of Patna High Coun whereby that court answered the following three questions referred to it under section 27 of the Wealth Tax Act, 1957 (Act No."}}, {"text": "Patna High Coun", "label": "COURT", "start_char": 5330, "end_char": 5345, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J. This appeal on certificate is directed against the judgment of Patna High Coun whereby that court answered the following three questions referred to it under section 27 of the Wealth Tax Act, 1957 (Act No."}}, {"text": "section 27", "label": "PROVISION", "start_char": 5425, "end_char": 5435, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 5443, "end_char": 5463, "source": "regex", "metadata": {}}, {"text": "Darbhanga", "label": "GPE", "start_char": 6178, "end_char": 6187, "source": "ner", "metadata": {"in_sentence": "The assesse was former Maharajadhiraja of Darbhanga."}}, {"text": "section 5(1)(viii)", "label": "PROVISION", "start_char": 7515, "end_char": 7533, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 8782, "end_char": 8791, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Appellate Tribunal", "label": "COURT", "start_char": 8874, "end_char": 8903, "source": "ner", "metadata": {"in_sentence": "On further appeal to the Income Tax Appellate Tribunal, the Tribunal rejected the claim of the assessee for deduction on account of brokerage commission."}}, {"text": "section 5", "label": "PROVISION", "start_char": 9133, "end_char": 9142, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 9314, "end_char": 9323, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(1)", "label": "PROVISION", "start_char": 10486, "end_char": 10498, "source": "regex", "metadata": {"statute": null}}, {"text": "Kolah", "label": "OTHER_PERSON", "start_char": 11141, "end_char": 11146, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Kolah on behalf of tl; te appellant has assailed the correctness of the answers given by the High Court on all the three questions."}}, {"text": "section 5", "label": "PROVISION", "start_char": 11795, "end_char": 11804, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 12107, "end_char": 12116, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 12299, "end_char": 12308, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 12469, "end_char": 12478, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(1)", "label": "PROVISION", "start_char": 13404, "end_char": 13416, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 14160, "end_char": 14170, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(1)", "label": "PROVISION", "start_char": 14259, "end_char": 14271, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 15230, "end_char": 15239, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 17004, "end_char": 17013, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 17217, "end_char": 17226, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 17791, "end_char": 17800, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 18745, "end_char": 18754, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 18985, "end_char": 18994, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax Act, 1957", "label": "STATUTE", "start_char": 19007, "end_char": 19027, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 19069, "end_char": 19078, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "section 36", "label": "PROVISION", "start_char": 19182, "end_char": 19192, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "Section 48", "label": "PROVISION", "start_char": 19437, "end_char": 19447, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "India", "label": "GPE", "start_char": 19659, "end_char": 19664, "source": "ner", "metadata": {"in_sentence": "been incurred by reason of the property Ueing situate out of India, he may make an allowance from the value of the property on account of such expense not exceeding in any case five per cent on the value of the property.\""}}, {"text": "section 7", "label": "PROVISION", "start_char": 19886, "end_char": 19895, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "section 36( 1)", "label": "PROVISION", "start_char": 19926, "end_char": 19940, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "section 7", "label": "PROVISION", "start_char": 20025, "end_char": 20034, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "section 36(1)", "label": "PROVISION", "start_char": 20113, "end_char": 20126, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 48", "label": "PROVISION", "start_char": 20152, "end_char": 20162, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 20837, "end_char": 20847, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 20891, "end_char": 20900, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1894", "label": "STATUTE", "start_char": 20918, "end_char": 20935, "source": "regex", "metadata": {}}, {"text": "section 60(2)", "label": "PROVISION", "start_char": 20940, "end_char": 20953, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1894", "statute": "Finance Act, 1894"}}, {"text": "Finance Act, 1910", "label": "STATUTE", "start_char": 20966, "end_char": 20983, "source": "regex", "metadata": {}}, {"text": "section 48", "label": "PROVISION", "start_char": 20991, "end_char": 21001, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1910", "statute": "Finance Act, 1910"}}, {"text": "section 7(3)", "label": "PROVISION", "start_char": 21040, "end_char": 21052, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1910", "statute": "Finance Act, 1910"}}, {"text": "Finance Act, 1894", "label": "STATUTE", "start_char": 21065, "end_char": 21082, "source": "regex", "metadata": {}}, {"text": "section 7(5)", "label": "PROVISION", "start_char": 21098, "end_char": 21110, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1894", "statute": "Finance Act, 1894"}}, {"text": "Finance Act, 1894", "label": "STATUTE", "start_char": 21123, "end_char": 21140, "source": "regex", "metadata": {}}, {"text": "Section 60(2)", "label": "PROVISION", "start_char": 21355, "end_char": 21368, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1894", "statute": "Finance Act, 1894"}}, {"text": "section 7", "label": "PROVISION", "start_char": 21470, "end_char": 21479, "source": "regex", "metadata": {"linked_statute_text": "Finance Act, 1894", "statute": "Finance Act, 1894"}}, {"text": "Dymond", "label": "OTHER_PERSON", "start_char": 22455, "end_char": 22461, "source": "ner", "metadata": {"in_sentence": "98 I\n\nThe matter has been dealt with in Dymond's Death Duties, Forteenth Edition, page 569 in the following words :\n\n\"The price which the property fetches js the gross sale price, without deduction for the costs of sale, except that, if the property is part of an unadministered estate or a share of property subject to a trust already in operation which involve~ conversion, or if the property consists of certified chattels of national, etc.,"}}, {"text": "section 7(5)", "label": "PROVISION", "start_char": 23068, "end_char": 23080, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1894", "label": "STATUTE", "start_char": 23093, "end_char": 23110, "source": "regex", "metadata": {}}, {"text": "Reid", "label": "OTHER_PERSON", "start_char": 23116, "end_char": 23120, "source": "ner", "metadata": {"in_sentence": "After referring to section 7(5) of the U.K. Finance Act, 1894 Lord Reid observed:\n\n\"I am confirmed in' my opinion by the fact that the Act permits no deduction from the price fetched of the expenses involved in the sale (except in the case of property abroad under sub-section (3)).\""}}, {"text": "Morris", "label": "OTHER_PERSON", "start_char": 23341, "end_char": 23347, "source": "ner", "metadata": {"in_sentence": "E Lord Morris in this context observed:\n\n\"The value of a property is to be estimated to be the price which it would 'fetch' if sold in the open market at , the time of the death of the deceased."}}, {"text": "Hodson", "label": "OTHER_PERSON", "start_char": 23870, "end_char": 23876, "source": "ner", "metadata": {"in_sentence": "Similar observations were made by Lord Hodson and Lord Guest."}}, {"text": "Bihar Land Refonns Act, 1950", "label": "STATUTE", "start_char": 24789, "end_char": 24817, "source": "regex", "metadata": {}}, {"text": "section 3(1)", "label": "PROVISION", "start_char": 24991, "end_char": 25003, "source": "regex", "metadata": {"linked_statute_text": "The Bihar Land Refonns Act, 1950", "statute": "The Bihar Land Refonns Act, 1950"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 25225, "end_char": 25234, "source": "regex", "metadata": {"linked_statute_text": "The Bihar Land Refonns Act, 1950", "statute": "The Bihar Land Refonns Act, 1950"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 25735, "end_char": 25745, "source": "regex", "metadata": {"linked_statute_text": "The Bihar Land Refonns Act, 1950", "statute": "The Bihar Land Refonns Act, 1950"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 26242, "end_char": 26252, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 26309, "end_char": 26319, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 26399, "end_char": 26409, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 26486, "end_char": 26496, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 26746, "end_char": 26756, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 26769, "end_char": 26779, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 27308, "end_char": 27318, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 27471, "end_char": 27481, "source": "regex", "metadata": {"statute": null}}, {"text": "Perusal of the different provisions of Bihar Land Refonns Act", "label": "STATUTE", "start_char": 27494, "end_char": 27555, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 28034, "end_char": 28043, "source": "regex", "metadata": {"linked_statute_text": "Perusal of the different provisions of Bihar Land Refonns Act", "statute": "Perusal of the different provisions of Bihar Land Refonns Act"}}, {"text": "section 2(e)", "label": "PROVISION", "start_char": 28575, "end_char": 28587, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 32717, "end_char": 32731, "source": "regex", "metadata": {}}, {"text": "Patna High Court", "label": "COURT", "start_char": 32743, "end_char": 32759, "source": "ner", "metadata": {"in_sentence": "11 •\n\nThe Patna High Court in the case of Maharajkumar Kamal Singh v. Commissioner of Wealth Tax (supra) held that the right to receive compensation under the Bihar Land Reforms Act constituted \"asset\" for the purpose of Wealth Tax Act."}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 32954, "end_char": 32968, "source": "regex", "metadata": {}}, {"text": "Andhra Pradesh Hig11 Court", "label": "COURT", "start_char": 33208, "end_char": 33234, "source": "ner", "metadata": {"in_sentence": "It may also be observed that the Andhra Pradesh Hig11 Court in five cases, namely, Mir lmdad Ali Khan v. Commissioner of Wealth Tax('), Rani Bhagya Laxmamma v. Commissioner of Wealth Tax(\"), V. Chandramani Pattamaba Devi v. Commissioner of Wealth Tax('), Vandrevu Venkappa Rao v. Commissioner of Wealth Tax(') and P. V. G. Raju v. Commissioner of Wealth\n\nTa.~(') has held that the compensation payable on the abolition of estates can be taken into account for the purpose of Wealth Tax Act."}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 33650, "end_char": 33664, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 33702, "end_char": 33727, "source": "ner", "metadata": {"in_sentence": "Similar view has been taken biy the Madhya Pradesh High Court in Sardar C. S. Angre v. Commissioner of Wealth\n\nTax(') and Allahabad High Court in Maharaja Pateshwari Pd."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 33788, "end_char": 33808, "source": "ner", "metadata": {"in_sentence": "Similar view has been taken biy the Madhya Pradesh High Court in Sardar C. S. Angre v. Commissioner of Wealth\n\nTax(') and Allahabad High Court in Maharaja Pateshwari Pd."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 33934, "end_char": 33953, "source": "ner", "metadata": {"in_sentence": "Mr. Kolah has invited our attention to a decision of the Calcutta High Court in the case of Commissioner o~ Wealth Tax\n\nv. U. C. Mahatab (') wherein that court held that till the final publication of the Compensation Assessment-roll under the West Bengal Estates Acquisition Act, the assessee had no legal right to compensation and the same could not be included in the definition of \"assets\" in the Wealth Tax Act."}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 35060, "end_char": 35074, "source": "regex", "metadata": {}}]}
{"document_id": "1973_3_987_993_EN", "year": 1973, "text": "STATE OF U.P. AND ANR. v.\n\nANNAPURNA BISCUIT MFG. CO.\n\nApril 16, 1973\n\n[K. S. HEODE AND H. R. KHANNA, JJ.]\n\nU.P, Sat .. Tax Act 1947 s. 29-A-Yalldity-U.P. Salta Tax (Amtnd• mint&: Ya/ldatlon)Act 1971 Ss. IS and 17-Stction IS lns1rtlng s. 29A Into parent Act-Stctlon 17 making constqutntlal provlslon,,_Yalidlty of Ss. IS and 17-State Legislature whtthtr has compttene< lo enact law enforcing dtposlt of monty wrongv reallstd by dtaler as sales.tax-Such law whtthtr covtrtd by Constitution of India, Sevenrh Schedule, entry 54 List 11 or entries 7 and 10' List Ill.\n\nBy s. 29-A of the U.P. Sales Tax Act 1948 inserted by s. 15 of th.e U.P. Sales Tax (Amending and Validation) Act 1971 sales-tax wrongly realised by a dealer from any person had to be deposited in IM Govern ment Treasury. It would be held in trust by the Government on behalf of such person and refunded to him if application for that purpose was made within a period laid down in the section. Section 17 of the Amend ing Act contained consequential and validating provisions.\n\nThe High Court of Allahabad in petitions filed by the respondents held that the State Legislature had no competence to enact a provision like s. 29-A and therefore its enactment was unconstitutional.\n\nConsequently s. 17 of the Amending Act was also unconstitutional.\n\nDismissing the appeal filed by the State,\n\nHELD : (i) The argument that provision like section 29-A is ancillary or incidental to the collection of tax legitimately due under a law made under entry 54 has no force in view of this Court's decision in Abdul Quader's case and in Ashoka Marketing Ltd., wherein provisions similar to s. 29-A were held not to fall under entry 54 of List II. [991 DJ\n\n (ii) The impugned law could not also be held to fall under. entry 7 List III which relates to contracts. A similar argument was rejected by this Court in Ashoka Marketing Ltd. (992 G]\n\n(iii) The impugned law could not be said to relate to trusts so as to fall under entry I 0 of List Ill. A law compelling deposit of money m-ongly realised as salestax cannot in pith and substance be considered to be a law relating to trusts. [993 BJ\n\n(iv) S. 17 was linked with s. 15 and could not exist independently of that section. The High Court rightly held it to be unconstitutional.\n\nAbdul Quarder and Co. v. Sales Tax Officer, Hyderabad, (1970] 25 S.T.C. 155 and Ashoka Marketing Ltd. v. State of Bihar and Another, [1970] 26 I.T.R. 254, applied.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1716 of \\972.\n\nAppeal by certificate from the judgment and order dated November 11, 1971 of the Allahabad High Court in Civil Misc.\n\nWrit Nos. 3716 of 1970.\n\nS. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.\n\nA Rana, for the appellants.\n\nYogeshwar Prasad, S. K. Bagga and S. Bagga, pondents.\n\nThe Judgment of the Coun was delivered by\n\nfor tlle res '\n\nKHANNA, J. This appeal by certificate is directed against the judgment of Allahabad High Court whereby that court held the provisions of section 29-A of the U.P. Sales Tax (Act 15 of 1948) (hereinafter referred to as the principal Act) inserted by section 15 of the U.P. Sales Tax (Amendment and Validation) Act, 1971 (Amendment Act of 1971) hereinafter referred to as the Amending Act) as well as section 17 of the Amending Act to be unconstitutional.\n\nThis Court in the case of Commissioner of Sales Tax v. Ganga Sugar Corporation Ltd.(') held that section 8-A ( 4) of the principal Act was ultra vires the State Legislature : SeCtion 8-A\n\n( 4) read as under :\n\n\"8-A(4). Without prejudice. to the provisions of clause (g) of sub-section (2) of section 14, the amount realised by any person as tax on sale of any goods shall, not withstanding anything contained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be pres.cribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in res. pect thereof.\"\n\nThe Court in that context relied upon the decision in Abdul\n\nQuader and Co. v. Sales Tax Officer, Hyderabad. (2 ) it was held in Abdul Quader's case that the State Legislature in making a similar provision, viz., section 11(2) in the Hyderabad General Sales Tax Act, could not be regarded as having directly legislated for the imposition of sales and purchase tax under entry 54 List II in the Seventh Schedule to the Constitution because the amount thougl} collected by way of tax was not exigible as tax under the law. It was observed :\n\n\"We do not think that the ambit of ancillary or incidental power goes to the extent of permitting Legislature to provide that though the amount collected-may be • wrongly-by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax.\"\n\n(1) [1970] 2S S. T. C.\n\nISS.\n\n(2) [19641 IS S. T. C. 403.\n\nIn 1969 the Uttar Pradesh Taxation Amendment Act, 1969 (U .P. Aot 11 of 1969) was passed. Section 17 of that Act inserted section 29-A which read as under:\n\n\"29-A.-Refund in special cases.\n\nNotwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court, where any amount is either deposited or paid biY any dealer or other person under sub-section (4) or sub-section (5) of section 8-A, such amount or any part thereof shall on a claim being made in that behalf in such form and within such period as may be prescribed, be refunded to the person from whom such dealer or the person had actually realised such amount or part, and to no other person.\"\n\nOn August 22, 1971 the Amending Act was published. A number of amendmell'ls were made by the Amending Act in the principal Act. By section 10 of the Amending Act, sub-section ( 4) and ( 5) of section 8-A were omitted.\n\nSection 15 of the Amending Act was as under:\n\n\"15. For section 29-A of the principal Act, the following section shal) be substituted, llJlmely :-\n\n\"29-A. ( 1) Where any amount is realised from any person by any dealer purporting to do so by way of realisation of tax on 1he sale of any goods to such person, such dealer shall deposit the entire amount so\n\nrealised into the Government Treasury, wit; hin such period as may be prescribed notwithstanding that the dealer is not liable to pay such amount as tax or that only a part of it is due from him as tax under this Act,\n\n(2) Any amount deposited by any dealer under subsection ( 1) shall, to the extent it is not due as tax, be held by the State Government in trust for the person from whom it was realised by the dealer, or for his legal representatives, and the deposit shall discharge such dealer of the liablity in respect thereof the extent of the deposit.\n\n( 3) Where any amount is deposited by any dealer under sub-section ( 1 ) , such amount or any :Qart thereof shall, on a claim being made in that behalf in such form as may be prescribed, be refunded, in the manner pr~ cribed, to the person from whom such dealer had ac_tua!ly realised such amount or part, or to his legal representatives, and to no other person.\n\nProvided that no such claim shall be entertained after the expiry of three years from the date of the order of assement or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later.\n\nExplanation-The expression 'final order on appeal, 'revision or reference' includes an order passed by the Supreme Court under Article 32, Article 132, Article 133, Article 136 or Article 137, or by the High Court under Article 226 or Article 227 of the Constitution.\"\n\nSection 17 contains transitional provisions for deeming and validation consequent upon the deletion of sub-sections ( 4) and ( 5) of Section 8-A and the substitution of section 29-A in the principal Act. ·\n\nThe dispute relates to the amount which a dealer wron~Jy realises as sales tax from the customer and the question whtch arises for consideration is whether a State Legislature has the legislative competence to pass a law for the deposit of that amount in the Government Treasury. In other words, is there any entry in List 11 or List III of the Seventh Schedule to the Constitution under which the State Legislature could make such a Jaw? So far as section 17 of the Amending Act is concerned, the High Court observed that 1his section was dependent upon and interrelated with section 15 of the Amending Act. Sectton 17 provides that the amount already deposited under section 8-A ( 4) of the principal Act shall be deemed to be under section 29-A as substituted bv section 15 of the Amending Act.\n\nSection 15 is the principal provision, while section 17 is an ancillary provision. If section 15 was unconstitutional, section 17 would also share the same fate and would have to be struck down as unconstitutional because it is linked with section 15 and cannot exist independently of that section.\n\nLearned Advocate General appearing for the appellant State has not, and in our opinion, rightly challenged the correctness of the view taken by the High Court in this respect.\n\nWe may now deal with the provisions of secdon 15 of the Amending Act as a result of which section 29-A was substituted in lieu of the old section 29-A in the principal Act. Section 29-A deals with the amount wrongly realised 1fy a dealer on sale of goods to any person.\n\nSub-section (I) of section 29-A of th~ Principal Act makes it obligatory on the part ol' the dealer to deposit such amount into the Government Treasury \"notwithstanding: 1hat the dealer is not liable to pay much amount as tax or that only a part of it is due from him as tax under this Act.\" Subsection ( 2) provides that the amount so deposited by a dealer shall to the extent it is not due as tax from him be held by the State\n\nGovernment in trust for the person from whom it was realised by the dealer or for his legal representatives. It further provides that when a dealer has deposited the amount into .the Treasury, he shall no longer be liable to the person from whom he has realised the amount.\n\nAccording to sub-section (3) of the section, the amount deposited into the Government Treasury by the dealer or any part thereof shall, on a claim being made in that behalf in such manner and form as may be prescribed, be refunded to the person from whom the dealer had actually realised the amount or part, or to his legal representatives.\n\nSection 29-A thus seeks to ensure the deposit into the Government Treasury of the amount by a dealer as has been wrongly realised by him as sales tax. AJ the said amount does not constitute sales tax, it is not covered by entry 54 in List II of the Seventh Schedule to the Constitution which rel!l'les to taxes on sale or purchase of goods other than newspapers subject to the provision of entry 92-A of List I.\n\nThe arugment that provision like section 29A is ancillary or incidental to the collection of tax legitimately due under '' law made under entry 54 has no force. Such an argument was rejected by this Court in Abdul Quader's case (supra) in the following words:\n\n\"The provision however is attempted to be justified on the ground that though it may not be open to a State Legislature to make provision for the recovery of an amount which is not a tax under entry 54 of List II in a law made for that purpose, it would still be open to the Legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and encillary power to make provision for the levy and collection of such tax-But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such a provision can be a.ncillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry.\"\n\nThe above observations were quoted with approval by a six Judge Bench of this Court in the case of Ashokq Marketing Ltd.\n\nv. State of Bihar and Another('). In that case the provisions of section 20 A of the Bihar Sales Tax Act which were substantially\n\n(!) (19701 26 I. T. R. 254.\n\nsimilar to those of section 2 9-A now inpugned before us, were assailed. Shah J. (as he then was) speaking for the Court observed:\n\n\"A provision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax.\n\nBut we are unable to hold that a provision under which a dealer is called upon to pay to the State an amount which has been collected by him on a representation-express or implied-that an equal amount is payable by him under the Bihar Sales Tax Act, is a provision incidental to the power to levy 'tax on sale or purchase of goods' within the meaning of entry 54 List II of the Seventh Schedule.\n\nEntry 54, List II, of the Seventh Schedule comprehends the power to impose tax, to prescribe machinery for collecting the tax, to designate officers by whom the liability may be imposed and to prescribe the authority, obligation and indemnity o.f the officers. The State Legislature may under entry 54, List II, be competent to enact a law in respect of matters necessarily incide!llal to 'l\\ax on the sale and purchase of goods'. But a provision compelling a dealer who has deliberately or erroneously recovered an amount from the purchaser on a representation that he is entitled to recover it to recoup himself for payment of tax, to pay over that amount to the State cannot, in our .iudgment, be regarded as necessarily incidental to lavying an amount as tax which the State is incompetent to levy. A mere device cannot be permitted to defeat the provision of the Constitution by clothing the claim in the form of a demand for depositing the money with the State which the dealer has collected, but which he was not entitled to collect.\"\n\nIn view of the above decision, the contention that the impugned Act would be covered by entry 54 in List II can plainly be not accepted.\n\nArgument has been advanced before us on behalf of the appellant that the impugned law would be covered by entry 7 in List III which relates, inter alia, to contracts.\n\nA similar argument was advanced in the case of Ashoka Marketing Ltd. (supra) and was rejected in the follawing words :\n\n\"We fail to appreciate how power to legislate in respect of entries 6, 7 and 13 would authorise the State Legislature to legislate in respect of recovery from the dealer of an amount wl!.ich the dealer was in law not\n\nU.P. STATE v. ANNAPUllNA BISCUIT CO', (Khanna, 1.) 993\n\nentitled to collect, but which he has collected.\n\nThe power to legislate in respect of sub-section ( 3), ( 4) and ( 5) of section 20A does not fall under entries 6, 7 and 13 of List III expressly, nor can it lie said that the power to legislate ls necessarily incidental to the power contained in entries 6, 7 and 13 of List III.\"\n\nLastly, it has been argued that the law in question relates to trust and can be justified under entry 10 in List III. We, however, fail to see as to how such a law can be said to relate lo trusts. A trust is an obligation annexed to the ownership of property and arises .out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of C another and the owner(see section 3 of tbe Indian Trusts Act, 1882). It is plain that a law compelling deposit of money wrongly realised as sales tax cannot in pith and substance be considered to 1* a law relating to trusts. The mere use of the word \"11'.Ust\" in sub-section (2) of section 29-A would not make the impugned law to be one relating to trusts. f) The appeal consequently fails and is dismissed with costs.\n\no.c.\n\nAppeal dismissed.", "total_entities": 85, "entities": [{"text": "STATE OF U.P. AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. AND ANR", "offset_not_found": false}}, {"text": "ANNAPURNA BISCUIT MFG. CO", "label": "RESPONDENT", "start_char": 27, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "ANNAPURNA BISCUIT MFG. CO", "offset_not_found": false}}, {"text": "April 16, 1973", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "April 16, 1973\n\n[K. S. HEODE AND H. R. KHANNA, JJ.]"}}, {"text": "H. R. KHANNA, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "Tax Act 1947", "label": "STATUTE", "start_char": 120, "end_char": 132, "source": "regex", "metadata": {}}, {"text": "s. 29", "label": "PROVISION", "start_char": 133, "end_char": 138, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1947", "statute": "Tax Act 1947"}}, {"text": "s. 29A", "label": "PROVISION", "start_char": 235, "end_char": 241, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1947", "statute": "Tax Act 1947"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 476, "end_char": 497, "source": "regex", "metadata": {}}, {"text": "s. 29", "label": "PROVISION", "start_char": 569, "end_char": 574, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sales Tax Act 1948", "label": "STATUTE", "start_char": 589, "end_char": 607, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 620, "end_char": 625, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "Section 17", "label": "PROVISION", "start_char": 959, "end_char": 969, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 1047, "end_char": 1070, "source": "ner", "metadata": {"in_sentence": "The High Court of Allahabad in petitions filed by the respondents held that the State Legislature had no competence to enact a provision like s. 29-A and therefore its enactment was unconstitutional."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 1185, "end_char": 1190, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 1257, "end_char": 1262, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "section 29", "label": "PROVISION", "start_char": 1398, "end_char": 1408, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "Abdul Quader", "label": "OTHER_PERSON", "start_char": 1561, "end_char": 1573, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal filed by the State,\n\nHELD : (i) The argument that provision like section 29-A is ancillary or incidental to the collection of tax legitimately due under a law made under entry 54 has no force in view of this Court's decision in Abdul Quader's case and in Ashoka Marketing Ltd., wherein provisions similar to s. 29-A were held not to fall under entry 54 of List II. ["}}, {"text": "Ashoka Marketing Ltd.", "label": "ORG", "start_char": 1588, "end_char": 1609, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal filed by the State,\n\nHELD : (i) The argument that provision like section 29-A is ancillary or incidental to the collection of tax legitimately due under a law made under entry 54 has no force in view of this Court's decision in Abdul Quader's case and in Ashoka Marketing Ltd., wherein provisions similar to s. 29-A were held not to fall under entry 54 of List II. ["}}, {"text": "s. 29", "label": "PROVISION", "start_char": 1641, "end_char": 1646, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 17", "label": "PROVISION", "start_char": 2149, "end_char": 2154, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 2171, "end_char": 2176, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2449, "end_char": 2477, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 2593, "end_char": 2613, "source": "ner", "metadata": {"in_sentence": "Appeal by certificate from the judgment and order dated November 11, 1971 of the Allahabad High Court in Civil Misc."}}, {"text": "S. N. Kachar", "label": "LAWYER", "start_char": 2655, "end_char": 2667, "source": "ner", "metadata": {"in_sentence": "S. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.\n\nA Rana, for the appellants."}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 2669, "end_char": 2684, "source": "ner", "metadata": {"in_sentence": "S. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.\n\nA Rana, for the appellants."}}, {"text": "K. C. Agarwala", "label": "LAWYER", "start_char": 2686, "end_char": 2700, "source": "ner", "metadata": {"in_sentence": "S. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.\n\nA Rana, for the appellants."}}, {"text": "O. P.\n\nA Rana", "label": "LAWYER", "start_char": 2705, "end_char": 2718, "source": "ner", "metadata": {"in_sentence": "S. N. Kachar, N. D. Karkhanis, K. C. Agarwala and O. P.\n\nA Rana, for the appellants."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 2741, "end_char": 2757, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. Bagga, pondents."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 2759, "end_char": 2770, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. Bagga, pondents.", "canonical_name": "S. K. Bagga"}}, {"text": "S. Bagga", "label": "LAWYER", "start_char": 2775, "end_char": 2783, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, S. K. Bagga and S. Bagga, pondents.", "canonical_name": "S. K. Bagga"}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 2855, "end_char": 2861, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Coun was delivered by\n\nfor tlle res '\n\nKHANNA, J. This appeal by certificate is directed against the judgment of Allahabad High Court whereby that court held the provisions of section 29-A of the U.P. Sales Tax (Act 15 of 1948) (hereinafter referred to as the principal Act) inserted by section 15 of the U.P. Sales Tax (Amendment and Validation) Act, 1971 (Amendment Act of 1971) hereinafter referred to as the Amending Act) as well as section 17 of the Amending Act to be unconstitutional."}}, {"text": "section 29", "label": "PROVISION", "start_char": 2992, "end_char": 3002, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 3103, "end_char": 3113, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 3253, "end_char": 3263, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 3406, "end_char": 3415, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 3601, "end_char": 3611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11(2)", "label": "PROVISION", "start_char": 4186, "end_char": 4199, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 4367, "end_char": 4383, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar Pradesh Taxation Amendment Act, 1969", "label": "STATUTE", "start_char": 4906, "end_char": 4948, "source": "regex", "metadata": {}}, {"text": "Section 17", "label": "PROVISION", "start_char": 4984, "end_char": 4994, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "section 29", "label": "PROVISION", "start_char": 5016, "end_char": 5026, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "section 8", "label": "PROVISION", "start_char": 5349, "end_char": 5358, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "August 22, 1971", "label": "DATE", "start_char": 5629, "end_char": 5644, "source": "ner", "metadata": {"in_sentence": "On August 22, 1971 the Amending Act was published."}}, {"text": "section 10", "label": "PROVISION", "start_char": 5757, "end_char": 5767, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "section 8", "label": "PROVISION", "start_char": 5818, "end_char": 5827, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 5845, "end_char": 5855, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "section 29", "label": "PROVISION", "start_char": 5900, "end_char": 5910, "source": "regex", "metadata": {"linked_statute_text": "the Uttar Pradesh Taxation Amendment Act, 1969", "statute": "the Uttar Pradesh Taxation Amendment Act, 1969"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 7481, "end_char": 7494, "source": "ner", "metadata": {"in_sentence": "Explanation-The expression 'final order on appeal, 'revision or reference' includes an order passed by the Supreme Court under Article 32, Article 132, Article 133, Article 136 or Article 137, or by the High Court under Article 226 or Article 227 of the Constitution.\""}}, {"text": "Article 32", "label": "PROVISION", "start_char": 7501, "end_char": 7511, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 132", "label": "PROVISION", "start_char": 7513, "end_char": 7524, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 7526, "end_char": 7537, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 7539, "end_char": 7550, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 137", "label": "PROVISION", "start_char": 7554, "end_char": 7565, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 7594, "end_char": 7605, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 227", "label": "PROVISION", "start_char": 7609, "end_char": 7620, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 17", "label": "PROVISION", "start_char": 7644, "end_char": 7654, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 7777, "end_char": 7786, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 7813, "end_char": 7823, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8196, "end_char": 8212, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 8300, "end_char": 8310, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 8428, "end_char": 8438, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 8520, "end_char": 8529, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 8586, "end_char": 8596, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 8617, "end_char": 8627, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 8650, "end_char": 8660, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 8695, "end_char": 8705, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 8736, "end_char": 8746, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 8769, "end_char": 8779, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 8890, "end_char": 8900, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 9217, "end_char": 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(as he then was) speaking for the Court observed:\n\n\"A provision which enables the dealer to pass on the liability for payment of tax is incidental to legislation for sales tax."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 13068, "end_char": 13084, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 13113, "end_char": 13129, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20A", "label": "PROVISION", "start_char": 14952, "end_char": 14963, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 15581, "end_char": 15590, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Trusts Act, 1882", "label": "STATUTE", "start_char": 15598, "end_char": 15621, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 29", "label": "PROVISION", "start_char": 15837, "end_char": 15847, "source": "regex", "metadata": {"linked_statute_text": "Indian Trusts Act, 1882", "statute": "Indian Trusts Act, 1882"}}]}
{"document_id": "1973_3_994_1004_EN", "year": 1973, "text": "DAMODAR VALLEY CORPORATION\n\nWORKMEN April 18, 1973\n\n(A. N. GROVER AND C. A. VAIDIALINGAM, JJ.]\n\nIndustrial dispute-Right of employees to construction allowance.\n\nOne of the disputes between the appellant and the respondents, referred to the Industrial Tribunal, was whether construction allowance should be payable to any categories of regular employees for extension of existing projects after the operation stage had commenced, and if so, to what extent and to which categories of regular employees. The Tribunal held that the allowance should be payable to all categories of regular employees including school teachers and welfare centre workers at any station where there is both construction work and operational work.\n\nDismissing the appeal to this Court,\n\nHELD : The Tribunal was justified in holding that the employees, who were posted at the same station, some doing construction work and others operational work, will both be entitled to construction allowance, as the two sets of employees have to be treated and paid uniformly.\n\nAccording to the circulars issued by the appellant the essential qualification for getting construction allowance was that the employee must be stationed at the construction camp site, the reason 'for such payment being the arduous and exacting nature of construction duties and the lack of civic amenities at the camp site. The evidence in the case, however, disclosed that the appellant had modified these principles, because, construction allowance was paid even to employees who were posted at headquarters but who had to visit the construction site during the process. of such construction. If such employees are posted or stationed at headquarters they will be enjoying the civic amenities in the same manner as the other employees who are doing operational work at the same headquarters. There would be no distinction between them in the matter of enjoying civic amenities, but the former are paid construction allowance while the latter are not.\n\nAlso there is no justUication for denying construction allowance to the employees coming under the cate_gory of school staff especially when employees coming under the head of hospital staff are paid construction allowance.\n\nThe appellant has neither pleaded nor established any factors distinguishing the two categories of employees. r998 A; 1001 G-H; 1003 E-H; 1004 ~GJ\n\nCIVIL APPELLATE JURisorc'iroN :· Civil Appeal No. 1666 of 1968.\n\nAppeal by special leave from the Award dated January 27, 1968 of the National Industrial Tribunal at Calcutta in Reference No. NIT-2 of 1967.\n\nNiren De, Attorney-General for India, and D. N. Mukherjee, H f<Ythe appellant.\n\nD. L. Sen Gupta and S. K. Nandy, for respondent No.2.\n\nD.V.C.V. WORKMEN (Vaidialingam, J.)\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In this appeal, by specialleve, the question: that arises for consideration is the correctness of the award of construction allowance to the operational staff. ·\n\nBy its order dated June 1, 1967, the Central Government referred for adjudication to !the National Industrial Tribunal, Calcutta, various disputes. We are concerned in this appeal only with dispute No. 5(a} namely:-\n\n\"Should construction allowance be payaple to any categories oi regular employees for extension of exjsting projects after the operation stage has commenced? If so, to what extent and to which categories of regular employees?\"\n\n'The unions clrumed payment of construction allowance. to the operational staff also while the management contested their claim.\n\nThe Tribunal by its award dated January 27, 1968, in Reference No. NIT-2 of 1967 has held that construction allowance should be payable to all categories of regular employees at any station where work of extension of the existing project, after the operation stage has commenced, is going on i.e. at any station where there is both construction work and operational work.\n\nThe Trib!l!!nal has further directed such payment to be made uniformly to all categories of regular employees posted at 'the station, including school teachers and welfare centre workers.\n\nAccording to the directions given by the Tribunal, construction allowance is payable to all categories of regular employees who are posted at any station where both construction work and operational work are being carried on. ·\n\nThe learned Attorney General, on behalf of the appellant, urged that construction allowance is paid only to those employees, who are actually on the site where the construction works are going on.\n\nSuch payment, it is pointed out, was made to compensate those employees tor lack of civic amenities at the site, where construction work has been started and is going on.\n\nAccording to him, the operational staff, who are posted in town\n\nships enjoy all the am.enities provided therein and hence are not eligible for payment of this construction allowance. In support of this contention, the learned Attorney General referred us to the circulars issued by the management as well as the answers given by the witnesses.\n\nAccording to him, the directions given by the Tribunal, apart: from putting the appellant to considerable expense, are contrary to the evidence adduced in the case and even the claim made by the workmn.\n\nSUPREME COURT REPORTS\n\n[1973] 3 S.C.R.\n\nMr. Sen Gupta, learned counsel for the workmen, pointed 'OUt that the unions had placed materials before the Tribunal to show that even certain employees domg operational work and who had nothing to do with construction work, were being paid construction allowance.\n\nTherefore, the plea of the appellant that it is only the employees, who are actually posted and work at the const:I1Uotion site that are eligible for much payment, is contrary even to the evidence adduced on behalf of the appellant.\n\nThe learned counsel also drew our attention to the relevant averments in the unions' written statenrents as well as the answers _given by the appellant's witnesses themselves and urged that the very limited relief granted by the Tribunal is justified.\n\nAt this stage we may mention that the learned Attorney stated 'that even employees posted at headquarters are paid construction allowance provided they have to go to the construction site during the process of construction.\n\nIt is now necessary to refer to the circulars issued by the management as well as the material part of the pleadings.\n\nAnnexure I to the Special Leave Petition regarding construction .allowance is as follows :-\n\n\"DAMODAR VALLEY CORPORATION\n\nREVISION OF PAY SCALES Construction allowance granted in view of the arduous and exacting nature of construction duties shall continue to be paid at places which are declared to be construction camps and it shall be withdrawn from the date the places are declared to have been ceased to be construction camps.\n\nTo avoid undue hardship, such withdrawal will be made in stages as shown below except in the cases of DIPS and BTPS 4th Unit employees :-\n\n(i) For the fin:t 6 months from the date of withdrawal of the construction allowance.\n\n(ii) For the next 6 months\n\nAllowance admissible\n\n15 % ofpaysubjectto a muimuro\n\nof Rs. 75/-.\n\n10% of pay subject to a maximum of Rs. 50/-.\n\n(iii) For the next 6 months 5% of pay subject to a maxi- G mum of Rs. 25/-.\n\n(iv) Thereafter Nil ----------·------------- The above reduible allowance shall. admissible to such of the employ~ only as are in receipt of the\n\nconstruCtion allowance and continue to be stationed at these places.\" There is no controversy that the payment of construction allowance began somewhere about 19S2. In fact both the unions Tepresenting the workmen admitted this fact in their written\n\nD.V.C.V. WORKMEN (Vaidia/ingam, 1.) 997\n\nstatements. From the extract given bove, it will be noted that the allowance is paid. in view of the arduous and exacting nature of construction duties at places which are declared to be construction camps. In order to soften the rigour of its withdrawal,. the said payment is slowly stopped in the circumstances arid at the rates mentioned therein, when once the concerned places. have ceased to be construction camps.\n\nOn February 14, 1953, another circular was issued regarding the construction allowance by the appellant. The relevant part of the circular procee.ds to state:\n\n\"It has been decided by the Corporation to continue the grant of Construction Allowance at the rate of 20% oe pay (rounded to the nearest (rupee) up to maximum of Rs. 100/- p.m. The admissibility of te allowance wjll be subject to the following conditions:- ( 1 ) Construction Allowance, which will be i-n the nature of a Compensatory Allowance, will be admissible to:- ( a) all employees in the regular establishment stationed at Construction Camps;\n\nNOTE : \"Construction Camps\" means all camps which have been specifically set up by the DVC for construction\n\nwork and where such work is either due to start or is in progress. They will cease to be considered as \"Construction Camps\" as soon as the construction work has been completed. The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the. staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''\n\n• * • • •\n\nFrom the circular ol 1953 it is clear that the eligibility for\n\nrecivng construction allowance is that the employee should be stat10ned at a construction camp, unless he comes under clause\n\n(b) of paragraph l. Prima-facie these two circulan give impor·\n\n'998\n\nSUPREME COURT 1\\:EPOR.TS [1973] 3 s.c.R..\n\ntance to the employee being at a particular place where he is discharging an arduous and exacting nature of construction work.\n\nWe will now refer to the pleadings. The workmen were rep- :resented by two unions, D.V.C. Staff Association (hereinafter to\n\nbe referred to as the Association) and D.V.C. Karamchari Sangh\n\nresented by two unions, D.V.C. Staff Association (hereinafter to its written statement dated September 19, 1967, the Association states:-\n\n\"That the construction allowance was introduced by the Corporation in the year 19S2 and the same was .being given to the worers who work in the construcion\n\ndivisions only. The rate of C.A. was 20% of pay subject 'to a maximum of Rs. 100/·\".\n\nThe Sangh in its written statement date October 7, 1967, has stated that the construction allowance was introduced in the year 1952 and that the same is given to those workers who work in construction divisions. In paragraph 16 ot the v.:ritten statement it has stated:\n\n\"That me chart marked annexure 'B' will show at a glance which categories of workmen and at what stage rof work and under what circwnstances become entitled to the construction allowance and at what rate.\" In Annexure 'B' to the written statement, the Sangh had given the particulars regarding the categories of workers who were peing\n\ngiven construction allowance, as well as the rates at which such workers were getting. It had 'also given particulars regarding the category of workers who were not getting the construction allowance. It is only necessary to refer, in this Annexure 'B', to the workers coming under items (a), (c) and (d) as well as the note.\n\n'b, c.\n\nod.\n\noe,\n\nANNEXURE 'B'\n\nCONSTRUCTION ALLOWANCE\n\nCategory of Rate • Stage and Workers circumstances\n\nAll W::>rkers borne on 20% of pay Workers get construction allow. regular Establishment ance from the very beginning till th! operation stage,\n\nX X X Workers of common ser- 20% of pay These workers continue to eoy vices, such as security the benefit of construe on staff, Hospital Staff, staff allowance at all the staaes. of Inspection Bangalow and others.\n\nSchools staff, Welfare Nil They cease to get construction Centre staff etc. allowance after the commencement of ths secondary stage.\n\nX X X\n\nn.v.c.v. woRKMEN (Vaidialingam, 1.) 999\n\nNOTE: Construction camp (for the purpose ol construction allowance) means all camps which have been _specifi cally set up by the D.V.C. for construction work and where such work is either due to start or is in progress.\n\nThey will cease to be considered as .. Construction Camps\" as soon as the construction work has been com\n\npleted.\" B\n\nIt is to be noted that in Annexure •a•, the Sangh had catesorl cally stated that the workers of common services, such as s.ecurity\n\nstaff, hospital staff, staff of inspection bunsalows and others were gettins the construction allowance at all stages, whereas the school staff, welfare centre staff, etc. ceased to get the construction allowance after the commencement of the secondacy stage,\n\nThe appellant filed its written statement on December 3, 1967.\n\nIn pragraph 46, it has met the allegations contained in paragraphs 51 to 53 of the Association's written statement. It\n\nhas averred that the construction allowance is intended to com pcnsate the employees, at construction camps, when construction of a project has commenced in rural or hilly areas without any of the amenities of a townsliip for the deprivation of such amenities.\n\nThe appellant has further stated that the employees engaged in the operation of a project, after it has reached the operational stage, arc not justified in claiming a construction allowance, It has further pleaded that the allowance is withdrawn in the course of two years to avoid hardship to the employees, who cease to be in the construction camps. Here again it will be seen that the case of the appellant is that the construction allowance is paid only to those employees who are in the construction camp, that is the site where the construction work is goin, g on. It is only then that those employees will not be having the amenities of a township iF because the construction site will be in a rural or hilly area.\n\nThere is a reference to Annexure 'B' in paragraph 50 of the appellant's written statement. A major part of thall: paragraph deals with some of the averments mde by the Association. Wtth\n\nre&ard to Annexure 'B', it is stated;\n\n\" . . . . . . It is denied that the claims made by the employees in Annexure 'B' to the said statement should be granted in full or at all or with retrospective effect or at an or that any part of them should be granted as\n\nclaims or at all.\"\n\nThe learned Attorney General was prepared to accept the position that the denial regarding Annexure 'B' in this paragraph relates to the same Annexure 'B' filed by the Sangh along with dts written statement and referred to in paragraph 16 of their\n\nSUPREME COURT REPORTS (19731 3 s.c.R.\n\nwritten statment. It must be stated that if paragraph 50 has not met with the averments in Annexure 'B', there is no other paragraph in the written statement of the appellant dealing wilth Atmexure 'B'. Therefore, it is reasonable to proceed on the basis that 'the only paragraph dealing with Annexure 'B' is this paraaph 50.\n\nThe point to be noted is that while the Sangh has categoncly stated in annexure 'B' (which was part of the written s_tatement filed as early as October 7, 1967) the workers coming under category (c), who get construction allowance at all stages, and the workers coming under category (d), who cease to get construction allowance after the commencement of the secondary stage, the appellant, though it iiled its written statement only as late as December 2, 1967, has not explained nor given any information as to the circumstances under which these two categories either get or do not get construction allowance, and if so, under what circumstances. The appellant was content with merely denying -the--claim made in annexure 'B'. It must be emphasised that while the appellant has specifically taken the plea in paragraph 46 of its written statement that construction allowance is paid only \\\\'hen\n\nthe employees are actually, so to say, stationed at the construction site, there was a duty on its part to properly explain and given particulars how the workers, suh as security staff, hospital staff, staff of inspection bungalows and others got construction allowance and the employees of the schools~ welfare centres and other staff did not get that allowance.\n\nOne would have epected the\n\napp~Jlant to clearly refer to the nature of the duties performed by these various employees coming under categories (c) and (d) as well as the places where they are located, namely, whether at the\n\ncomtruction site or at places where a township has grown and amenities are available.\n\nAt this stage we can also mention that even during 1he trial of the proceedings, the appellant has not adduced any evidence in respect of the matters that we have just mentioned, though it has produced evidence, oral and documentary.\n\nWe will now refer to the oral evidence adduced in the case.\n\nPW-1. the Joint Secretary of the Association, has stated in chief\n\neamination that the manaement does not pay construction allowance to all categories of workmen at the same place.\n\nHe has further deposed that at the same station some are paid such. allowance and other workmen of the same category do not get the same. In cross-examination, he has stated that construction allowance was given to workers connected with the construction work whether they stayed in the construction camps or not. He has further deposed that construction aUowance was given to remove hardship arising from the site of work and to compensate for absence of amenities, like schools, hospitals, bazars and other benefits of civilised life. When the construction has progressed, townships and colonies have grown with all amenities at some\n\nD.v.c. v. WOI.DriBN (Yaidialingam, 1.) 1001\n\nA stations. PW-2, tho Joint Secretary of the Sangb, has stated that all the sites of wo.rk under the management have not been provided with schools, bazars, hospitals and other amenities.\n\nTho material part of tho evidence of MW-1, Director of Personnel, who gave evidence on boha1f of tho management, is as follows :-\n\nWhen work on any project has started at any site, where no civic amenities• are. available, the site is termed as 'CQnsttuction camp' and personS employed therein are given construction allowance to compensate for lack of civic amenities.\n\nTill the work there is completed and the camp is declared a nonconstruction camp, every employee working therein gets cone struction allowance. It may happen that a r>rtion of a project has completed and has gone into .operation the. remaining portion of the project is at the construction stage. In such cues,\n\nthe establishment is divided into a construction establishment, attending to construction which is still going on, and an operational establishment. All employees of construction establishment Jet D construction allowance, which is withdrawn ip. a phased manner from the employees of the operational establishment. When construction work at one construction camp is complete, such of the regular employees, as are required for operational work at the camp are retained there and the remaining regular employees are transferred. If they are transferred to another construction camp, E they get construction allowance; here8.s if they are transferred to a non-construction camp, they will not get construction allowance.\n\nThe regular employees, who are at the construction site or who are posted at their headquarters,. but have to visit the construction site during the process of construction, are paid cnstruction allowance.\n\nWe have generally set out the nature of the materials on record.\n\nF From the above materials, the following conclusions broadly emerge:- Construction allowance is paid to employees of the regular establishment, who are stationed at the construction camps, in view of the arduous and exacting nature of construction duties they perform. Construction allowance is given. to compensate for the G lack of civic amenities. Even the regular employees, who are at their headquarters, but have to visit the construction site during the process of construction, are, according to PW-1, paiQ. the construotion allowance. There is no controversy the employeeS, who are stationed at H the construction site and are employed therein are eligible for being paid the construction allowance.\n\nThere is also no controversy that the employees, who are doing the operational work, which must be in a place where amenities are available, are not eligible\n\n16~ 797SupCI/73\n\nSUPREME COU~T.REPORTS .\n\n\nfor construction allowance. The controvery arises regarding the regular employees, who are in the same statJon, but soe of whon are doing operational work and others do construction work m an extension project. The claim of the workmen is that no distinction should t)e made in the matter of payment of con!>uuction allowance to the regular employees, who are posted at the same station, merely on the ground 'that some of them are employed in operational work and the others are in construction work in connection with the extension of a project. According to them, the employees doing work. in the construction project are not stationed at the construction site.\n\nOn the other hand, they arc also stationed in a township where amenities are available. lf under such circwnstances, they are paid construction allowance, which is really to compensate for lck of such amenities, there is no reason why the said allowance should not be paid to the operational staff working at the same station merely becaus.:! civic amenities are already provided.\n\nThe sum and substance of the claim of the workmen is that under such circumstances both types of workmen, posted at the same station should be paid t:onstruction allowance.\n\nVery strong. reliance has naturally been placed on behalf of the respondents on Annexure 'B' filed along with the written statement of the Sangh on October 7, 1967. We have already referred to the averments in paragraph 16 of the said written statement as well as the contents ol Annexure 'B'. 1he workers under category (c) in this Annexure are getting the construction :lllowance. There is no evidence placed before the Tribunal by\n\nthe appellant regarding the places of work of the employees coming under category (c); nor explaining the reasons qualifying ucb workmen to get the construction allowance.\n\nAccording to the union.~, school staff and welfare centre staff coming under category (d) are also similarly situated . as 1he employees under\n\ncateory (c) and that there is no justification for denying cons trucuon allowance to those workmen. .\n\n. The learned Attorney General no Joubt urged that except fihng Annexure '13' ruong with the written statement neither PW-l nor PW-2, who gave evidence on behalf of\\he unios. ha~ explain. cd th.c content., of Annexure 'B' and given any infonnatron as tL) the crrcumsaces under which the .workers comin~ under c::tcgory\n\n(d) <rc eligible to get construction allowance.\n\nThe larn.:d Attornt'y General is right in his criticism that these two wit111.sse'i\n\nhave. nat !laid. anything in their evidence about Annexure 'B'. flut, 10 .our optnio~, that docs not absolve the appellant, who i-. in\n\nJ'{N,~:_,·, rnn oC :Jll .mformation regarding the matters mentionl!d 1h:rt:rn. from oiJcrng the necessary materials before the Tribunal to -..huw tht: di\\tingui., hing and differentiating features of the two --···\n\n' • ...,,.....\n\nD.V.C. V, WORKMEN (Vaidialingam, J.) 1003\n\ncategorie.; of wvrkmen coming u.nder items (c) and (d).\n\nWe have already referred to the fact that Anneure 'B' was before the l'ribunal as early as Octobjer 7, 1967. The appellant filed Its written statement only on December 2, 1967. Except a bald denial regarding Annexure 'B', the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where .he work is being done and other.\n\nrelevant factors regarding the eligibility of the particulat group of\n\nworkroell under category (c) to get construction allowance.\n\nNor has the appellant placed any such material regarding the noneligibility for construction allJwance of the workmen corning under category (d). The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material . part of the evidence of MW-1 has already been referred to by us.\n\nHe has stated that the regular employees, who are at Lhe construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, arc paid construction allowance.\n\nThat witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure 'B'.\n\nNo such evidence has been furnished by that or any other witness.\n\nHe has also admitted that at the same station a time will come when there are two sets of employees, some connected with the operational work and the others coll!nected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types or employees are posted at 'the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full\n\ncivic amenities are already provided.\n\nAccording to the circulars already referred to, the essential qualification for getting construction allowance is that the employees must be stationed at the construction camp site.\n\nThis is emphasised by the circular dated 14-2:1973. The reason for such payment is the arduous and acting nature of construction duties and the lack of civic amenities at the camp site. Obviously, the appellant has modified the above principle. The evidence of MW -1 shows that construction allowance is paid to employees who are posted at headquarters but have to visit the construction site during the process of construction.\n\nThe e; sential qualification for receipt of construction allowance viz. of being stationed at construction camp site, has been modified by the appellant. If such employees are posted or stationed at headquarters, they will be enjoying the civic amenities in t:!e same manner as the other employees who are doing operational work at the same headquarters. Thus there\n\nSUPRBMB COUI.T R.BPOR.TS [1973] 3 s.c.R.\n\nis no distinction between them in the matter of enjoying of civic amenities. 1be former as paid construction allowance while the\n\nlatter do not get the same.\n\nFor instance, according to' the respondents, the entire hospital staff coming under item (c) in annexure 'B' get construction allowance. This has not been controverted by the appellant. Nor is it the case of the appellant that the Hospital staff, relerred to earij.er, is stationed at the construction site. It is not even the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has. not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney during the arguments that a Doctor now and then visits the construction site to attend on employees who may require medical assistance.\n\nWe will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the construction site. Leaving out the Doctor for the momentt there is not justification for the entire staff of the Hospital\n\nbeing paid the said allowance. Even the plea made regarding the Doctor. has not been advanced fore us regarding the remaining staff of the hospital.\n\nThough we are not concerned with the question whether the staff of the hospital should . or should not get construction allowance, we have referred to the above circumstances only to show that there is no justification for denying construction allowance to the employees coming under item (d) or Annexure. 'B'. The appellant has neither pleaded nor established any factors distinguishing the school staff coming under item (d) from the hospital staff referred to in item (c) of Annexure 'B'. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get1the said allowance, when bh of them me posted at the same place.\n\nfu .view of the materials on record, in our opinion, the Tribunal was i\\lStified in holding that the employees, who are posted at the same station, some doing construction work and other operational work, wm both be entitled to construction allowance. as the two sets of employees have to be treated and paid uniformly. The appeal in the result fails and is dismissed with costs of the respondents one set.\n\nV.P.S.\n\nAppeal dismissed", "total_entities": 40, "entities": [{"text": "DAMODAR VALLEY CORPORATION", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "DAMODAR VALLEY CORPORATION", "offset_not_found": false}}, {"text": "WORKMEN", "label": "RESPONDENT", "start_char": 28, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "WORKMEN", "offset_not_found": false}}, {"text": "April 18, 1973", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "DAMODAR VALLEY CORPORATION\n\nWORKMEN April 18, 1973\n\n(A. N. GROVER AND C. A. VAIDIALINGAM, JJ.]"}}, {"text": "A. N. GROVER", "label": "JUDGE", "start_char": 53, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "A.N. GROVER", "offset_not_found": false}}, {"text": "Niren De", "label": "LAWYER", "start_char": 2577, "end_char": 2585, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General for India, and D. N. Mukherjee, H f<Ythe appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2619, "end_char": 2634, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney-General for India, and D. N. Mukherjee, H f<Ythe appellant."}}, {"text": "D. L. Sen Gupta", "label": "LAWYER", "start_char": 2657, "end_char": 2672, "source": "ner", "metadata": {"in_sentence": "D. L. Sen Gupta and S. K. Nandy, for respondent No.2."}}, {"text": "S. K. Nandy", "label": "LAWYER", "start_char": 2677, "end_char": 2688, "source": "ner", "metadata": {"in_sentence": "D. L. Sen Gupta and S. K. Nandy, for respondent No.2."}}, {"text": "D.V.C.V. WORKMEN", "label": "RESPONDENT", "start_char": 2712, "end_char": 2728, "source": "ner", "metadata": {"in_sentence": "D.V.C.V. WORKMEN (Vaidialingam, J.)\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In this appeal, by specialleve, the question: that arises for consideration is the correctness of the award of construction allowance to the operational staff. ·"}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 2730, "end_char": 2742, "source": "ner", "metadata": {"in_sentence": "D.V.C.V. WORKMEN (Vaidialingam, J.)\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In this appeal, by specialleve, the question: that arises for consideration is the correctness of the award of construction allowance to the operational staff. ·", "canonical_name": "Vaidialingam"}}, {"text": "VAIDIALINGAM", "label": "JUDGE", "start_char": 2793, "end_char": 2805, "source": "ner", "metadata": {"in_sentence": "D.V.C.V. WORKMEN (Vaidialingam, J.)\n\nThe Judgment of the Court was delivered by\n\nVAIDIALINGAM, J. In this appeal, by specialleve, the question: that arises for consideration is the correctness of the award of construction allowance to the operational staff. ·", "canonical_name": "Vaidialingam"}}, {"text": "Central Government", "label": "ORG", "start_char": 3010, "end_char": 3028, "source": "ner", "metadata": {"in_sentence": "By its order dated June 1, 1967, the Central Government referred for adjudication to !"}}, {"text": "National Industrial Tribunal, Calcutta", "label": "COURT", "start_char": 3063, "end_char": 3101, "source": "ner", "metadata": {"in_sentence": "the National Industrial Tribunal, Calcutta, various disputes."}}, {"text": "January 27, 1968", "label": "DATE", "start_char": 3579, "end_char": 3595, "source": "ner", "metadata": {"in_sentence": "The Tribunal by its award dated January 27, 1968, in Reference No."}}, {"text": "Sen Gupta", "label": "OTHER_PERSON", "start_char": 5302, "end_char": 5311, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1973] 3 S.C.R.\n\nMr. Sen Gupta, learned counsel for the workmen, pointed 'OUt that the unions had placed materials before the Tribunal to show that even certain employees domg operational work and who had nothing to do with construction work, were being paid construction allowance."}}, {"text": "February 14, 1953", "label": "DATE", "start_char": 8135, "end_char": 8152, "source": "ner", "metadata": {"in_sentence": "On February 14, 1953, another circular was issued regarding the construction allowance by the appellant."}}, {"text": "DVC", "label": "ORG", "start_char": 8831, "end_char": 8834, "source": "ner", "metadata": {"in_sentence": "100/- p.m. The admissibility of te allowance wjll be subject to the following conditions:- ( 1 ) Construction Allowance, which will be i-n the nature of a Compensatory Allowance, will be admissible to:- ( a) all employees in the regular establishment stationed at Construction Camps;\n\nNOTE : \"Construction Camps\" means all camps which have been specifically set up by the DVC for construction\n\nwork and where such work is either due to start or is in progress."}}, {"text": "Tilaiy", "label": "GPE", "start_char": 9089, "end_char": 9095, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Konar", "label": "GPE", "start_char": 9097, "end_char": 9102, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Bokaro", "label": "GPE", "start_char": 9104, "end_char": 9110, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Maithon", "label": "GPE", "start_char": 9112, "end_char": 9119, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Panchet", "label": "GPE", "start_char": 9121, "end_char": 9128, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Durgapur", "label": "GPE", "start_char": 9130, "end_char": 9138, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Asansol", "label": "GPE", "start_char": 9241, "end_char": 9248, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Gopalpur", "label": "GPE", "start_char": 9250, "end_char": 9258, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Burdwan", "label": "GPE", "start_char": 9260, "end_char": 9267, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Hazaribagh", "label": "GPE", "start_char": 9272, "end_char": 9282, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Loyabad", "label": "GPE", "start_char": 9473, "end_char": 9480, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Sindri", "label": "GPE", "start_char": 9482, "end_char": 9488, "source": "ner", "metadata": {"in_sentence": "The following are the Construction camps now in existence: Tilaiy, Konar, Bokaro, Maithon, Panchet, Durgapur and all other Irrigation Camps;\n\n(b) Em ployess stationed at townships not set up by the DVC, such as Asansol, Gopalpur, Burdwan and Hazaribagh, only if and when their activities are connected with construction and lie ouside a radius of 5 miles from the respective township,\n\n(c) The staff employed on the construction substation at Loyabad, Sindri and other elaces as well as the."}}, {"text": "Gomia", "label": "GPE", "start_char": 9575, "end_char": 9580, "source": "ner", "metadata": {"in_sentence": "staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''"}}, {"text": "Tasra", "label": "GPE", "start_char": 9582, "end_char": 9587, "source": "ner", "metadata": {"in_sentence": "staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''"}}, {"text": "Muri", "label": "GPE", "start_char": 9592, "end_char": 9596, "source": "ner", "metadata": {"in_sentence": "staff stationed at Kodanna, Hazaribagh Road Station, Gomia, Tasra and Muri.''"}}, {"text": "D.V.C. Staff Association", "label": "ORG", "start_char": 10126, "end_char": 10150, "source": "ner", "metadata": {"in_sentence": "The workmen were rep- :resented by two unions, D.V.C. Staff Association (hereinafter to\n\nbe referred to as the Association) and D.V.C. Karamchari Sangh\n\nresented by two unions, D.V.C. Staff Association (hereinafter to its written statement dated September 19, 1967, the Association states:-\n\n\"That the construction allowance was introduced by the Corporation in the year 19S2 and the same was .being given to the worers who work in the construcion\n\ndivisions only."}}, {"text": "D.V.C. Karamchari Sangh", "label": "ORG", "start_char": 10207, "end_char": 10230, "source": "ner", "metadata": {"in_sentence": "The workmen were rep- :resented by two unions, D.V.C. Staff Association (hereinafter to\n\nbe referred to as the Association) and D.V.C. Karamchari Sangh\n\nresented by two unions, D.V.C. Staff Association (hereinafter to its written statement dated September 19, 1967, the Association states:-\n\n\"That the construction allowance was introduced by the Corporation in the year 19S2 and the same was .being given to the worers who work in the construcion\n\ndivisions only."}}, {"text": "October 7, 1967", "label": "DATE", "start_char": 10654, "end_char": 10669, "source": "ner", "metadata": {"in_sentence": "The Sangh in its written statement date October 7, 1967, has stated that the construction allowance was introduced in the year 1952 and that the same is given to those workers who work in construction divisions."}}, {"text": "December 3, 1967", "label": "DATE", "start_char": 12974, "end_char": 12990, "source": "ner", "metadata": {"in_sentence": "ceased to get the construction allowance after the commencement of the secondacy stage,\n\nThe appellant filed its written statement on December 3, 1967."}}, {"text": "SUPREME COURT REPORTS (19731 3 s.c.R.", "label": "COURT", "start_char": 14817, "end_char": 14854, "source": "ner", "metadata": {"in_sentence": "The learned Attorney General was prepared to accept the position that the denial regarding Annexure 'B' in this paragraph relates to the same Annexure 'B' filed by the Sangh along with dts written statement and referred to in paragraph 16 of their\n\nSUPREME COURT REPORTS (19731 3 s.c."}}, {"text": "December 2, 1967", "label": "DATE", "start_char": 15628, "end_char": 15644, "source": "ner", "metadata": {"in_sentence": "The point to be noted is that while the Sangh has categoncly stated in annexure 'B' (which was part of the written s_tatement filed as early as October 7, 1967) the workers coming under category (c), who get construction allowance at all stages, and the workers coming under category (d), who cease to get construction allowance after the commencement of the secondary stage, the appellant, though it iiled its written statement only as late as December 2, 1967, has not explained nor given any information as to the circumstances under which these two categories either get or do not get construction allowance, and if so, under what circumstances."}}, {"text": "D.V.C. V, WORKMEN (Vaidialingam", "label": "JUDGE", "start_char": 23596, "end_char": 23627, "source": "ner", "metadata": {"in_sentence": "hing and differentiating features of the two --···\n\n' • ...,,.....\n\nD.V.C. V, WORKMEN (Vaidialingam, J.) 1003\n\ncategorie.;"}}, {"text": "14-2:1973", "label": "DATE", "start_char": 25841, "end_char": 25850, "source": "ner", "metadata": {"in_sentence": "This is emphasised by the circular dated 14-2:1973."}}]}
{"document_id": "1973_1_1_1002_EN", "year": 1973, "text": "HIS HOLINESS KESAVANANDA BHARAT!\n\nSRIPADAGALA VAR U\n\nSTATE OF KERALA April 24, 1973\n\n(S. M. SIKRI, C. J., J. M. SHELAT, K. S. HEGDE, A. N.\n\nGROVER, A. N. RAY, P. JAGANMOHAN REDDY, D. G.\n\nPALEK.AR, H. R. KHANNA, IC K. MATHEW, M. H. BEG,\n\nS. N. DWIVEDI, A.\n\nK. MUKHERJEA\n\nAND Y. V.\n\nCHANDRACHUD, JJ.)\n\nConstitution of India, 1950-Artick 368 before Constitution (Twenty Fourth) Amendment Act, 197!-Nature and scope of the amending power.\n\nArticle 13(2)-'Law' in 13(2) if includes amendment of the Constitution- Distinction between legislative power and constituent power.\n\nArticle 368-\"Amendment\" meaning of-\"Amcndmcnt\" if includes the power to abrogate the Constitution-If includes the power to alter the basic structure or frame-work of the Constitution,\n\nFundamental Rights-If amendment can take away or abridge the rights guaranteed in Part III.\n\nFundamental Righu--If inalienable natur31 rights so as to operate as restriction on the amending power.\n\nImplied and inherent limitations-Power of amendment if subject to inherent or implied limitations.\n\nPreamble-Nature-Preamble, if operates as a source of implied limitation on the power of amendment.\n\nConstitution (Twenty Faurth) Amendment Act 1971-Validity of-Amend mrot if enlargement of the limits of the Amending power.\n\nArticle 368-lf there are inherent or implied limitations in the article .. amended.\n\nConstitution (Twenty Fifth) Amendment Act, 1971-Validity of.\n\nSection 2(a) & (b)-Substitution of 'amount' for 'compensation'-Exclusion of article 19(l)(f) to law in article 31(2)~1£ abrogates the basic structure of the Constitution-Meaning of 'amount'-Scope of judicial review of adequacy.\n\nSection 3-lntroduction of new asticle 31C-Nature and object of the articlo- Article if abrogates the essential features of the Constitution-If amounts to delegation of amending power to state legislatures-Effect of Declaration-Nexus of law under the article to the directives in article 39(b) and (c), if subjedl to judicial review.\n\nDirective Principles of State Policy-Importance in the constitutional schcmc- Rclation with fundamental rights. Property, right to-Nature of the right.\n\n2 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nConstttutron (Twenty Ninth) Amendment Act, 1972-Validity of-Article 31B and 31A-lf interrelated.\n\nJudicial Revietu-Limits of-Place of judicial review in the constitutional scheme. ·, Interpretation-Rules of Constitutional interpretation-Constituent Assembly Debates, relevancy of.\n\nThe question whether the fundamental rights set out in Part III of the C:Onstitution could be taken away or abridged by amendment of the Constitution was first considered by this Court in Sankari Prasad v. Union of India, [1952] S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment) Act 1951, was challenged. The First Amendment made changes in articles 15 and 19 of the Constitution and inserted articles 31A and 31B.\n\nThe principal contention was that the First Amendment in so far as it purported to take away or abridge the rights conferred by Part _III of the Constitution fell within the prohibition of article 13(2) of the Constitution.\n\nThe Court unanimously held that the word 'law' in article 13(2) was relatable to exercise of ordinary legislative power and not amendments to the Constitution and that the terms of article 368 were general to empower Parliament to amend the Constitution without any exception. The question came up again in Sajjan Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority view in Sa; jan Singh was that article 368 plainly and unambiguously meant amendment of all provisions of the Constitution and that the ward •iaw' in article 13(2) did not take in Constitution Amendments.\n\nThereafter, in Golaknath v. State of Punjab, the Court, six against live, hdd that an amendment of the Constitution was 'law' within the meaning of article 13(2); therefore, if an amendment took away or abridged the fundamental rights it was void, that the Constitution First1 Fourth and Seventeenth Amendments abridged fundamental rights but were valid on the application of the doctrine of prospective overruling or acquiescence and that Parliament had no power from the date of the decision to amend any of the provisions of Part III so as to take away or abridge the fundamental rights.\n\nOne of the amendments affecting the right to propeny was the Constitution (Fourth Amendment) Act, 1955. The Amendment Act had enacted that no law providing for compulsory acquisition or requisitioning \"shall be called in question in any Court on the ground that the compensation provided by that law is not adequate\". The amendment was passed to get over the interpretation given by the Court in State of West Bengal v. Bela Baoerju, [1954] S.C.R. 674, to the word 'compensation' viz., just equivalent or full indemnification for the property expropriated. The effect of the amendment was considered by this Court in\n\n\n[ 1967] 1 S.C.R. 255 the Coun struck down the Metal Corporation (Acquisition of Undertaking) Act 1965, because the principles for determining the: compens.ation laid down in the Act did not represent the just equivalent of the property taken.\n\n\nKESAVANANDA f/, XEaALA 3\n\nserious obstacles in giving effect to the directive principles of State policy incorporated in article 39\".\n\n\nArguments were addressed mainly in W iit Petition No. 135 of 1970. In this Writ Petition the petitioner had challenged the validity of the Kerala Land Reforms Amendment Art 1969 and the Kcrala Land Reforms Amendment Act, 1971, for the .reason that some of the provisions thereof violated articles 14, 19(l)(f), 25, 26 and 31 of the Constitution. During the pcndency of the Writ Petition Parliament passed_ three constitution amendments, namely the Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts.\n\nThe Constitution Twenty Fourth Amendment Act amended article 368. It enacted that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The other part of the amendment is that nothing in article 13 shall apply to any amendment under article 368°.\n\n• Atticle 368 before amendment.\n\nProcedure for amendment •f tho Constitution: An amendmont of Ibis Com titution may be initiated only by the introducion Of a Bill for the purpose in either House of Parliament. when the Bill is passed in each House by a majority Of the total membership of that House and by a majority of not less than two thirds of 1lhe members of that H\"\"\" present and voting, it shall bo presented to President for his auent and upon such assent beina: a:iven to the Bill. the Consti tution shall stand amended in accordance with the terms of the Bill.\n\nProvided that if such amendment seeks to make any cban, ge in:-\n\n(a) article 54, article 55, article 73, article 162 or article 241; or\n\n(b) Chapter IV of Part V. Chapter V of Pan VJ, or Chapter I of Part XI, or\n\n(c) any of the Lists in the Seventh Scbcdule, or\n\n(d) the representation of States in Parliament, or\n\n(e) thci provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provisiori for such amendment is presented to the President for absent\n\nArticle 368 after amendment-Article 368 of the Constitution shall be re-num bered as clause (2) thereof, and\n\n(a) for the marginal heading of that article, the following marginal heading shall be substi!uted, nomcly :- .. Power of Parliament to amend the Constitution and procedure therefor\".\n\n(b) before clause (2) as so re-numbered, the foHowing c1ause shall be insert ed, namely:- \"Notwithstanding anything in this Constitution, Parliament may in exercise !l! its constuent PJ?We.r a.IJ?.end by way of di ti on, variation or repeal any prov1s1on of this Constitution 1n accordance with the procedure laid down in this article\".\n\n(c) in claus~ (2) aS so . re-numbered, for the words \"it shall be prcsent.ed to the President for his assent and upon such assent being given to the Bill\", the words \"if shall be presented to the President who shall give bis assent to the Bill and thersupon\" shall be substituted;\n\n(d) after clause (2) as so re-numbered, the fo1lowing clause shall be inserted namely:-\n\n\"(3) Nothing in Article 13 shall apply to any amendment made under this articleu.\n\n4 SUPREME COU1T REPOR'n (1973] Supp. S.C.R.\n\nThe Constitution Twenty Fifth Amendment Att amended article 31(2) and article 31(2-A). Section 2 of the Amendment Act substituted the word \"amount\" for the word \"compensation\" and excluded the applicatioo of article 19(1)(f) to a law under article 31(2). It was also made clear that no such law shall be called in question in any court on the groond that the whole or any port of such amount is to be given othlcrwise than in cash. Section 3 introduced new article 31C. It empowered Parliament and State Legislatures to enact law giving effect to the J;><>licy of the State towards securing the directive principles. in clause\n\n(b} or cl. (c) of article 39 and no such law could be questioned on the ground that it took away or abridged any of the rights conferred by articles 14, 19 and\n\n31. Further, the amendment laid down that\n\n11no law containing a declaration that it is for giving effect to such policy shall be called in stion in any court on the ground that it docs not give effect to such policy' . The provisions of the article were not to be applied to a law made by the Legislature of a state unless such law received the assent of the President. The Constitution (Twenty Ninth). Amendment Act included the Kerala and Reforms Acts in the Ninth Schedule to the Constitution making them immune from attack on the ground of violation of the fundamental rights. The Petitioner challenged the validity of the three Constitution Amendment Acts.\n\nHELD : (By Full Court) : Thie Constirution (Twenty Fourth) amendment Act, Section 2(a) md 2(b) of the Constirution (Twenty Fifth) Amendment Act and the Constirution (Twenty Ninth) Amendment Act arc valid.\n\nBy maj<>rity : .Per Hegdc, Ray, Jaganmohan Reddy, Palckar, Khanna, Mathew, Beg, Dwivedi, Mukhcrjea and Chandrachud, JI : The decision of the majority in Golaknath that the word \"law\" in article 13(2) included amendments to tlle Constitution and the article operated as a limitation upon the power to amend the Constitution in article 368 is erroneous and is overruled.\n\nBy majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ : The power of amendment is plenary. It includes within itself the power to add, alter or re.peal the various articles of the Constitution including those relating to fundamental rights.\n\nBy majority: Per Sikri, C.J. and Shelat, Hegde, Grover, Khanna, Jaganmohan Reddy and Mukherjea, JJ. (Ray, Palekar, Mathew, Beg, Dwivcdi and Chandrachud, JJ. dissenting) : The power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity.\n\nBy majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivcdi and Chandrachud JJ. (Sikri, C.J. and Shelat, Hcgdc, Grover, Mukherjca, JJ. holding contra and Jaganmohan Reddy, J. leaving the question open) : The~ arc no inherent or implied limitations on the power of amendment under arttcle 368.\n\nBy majority: The first pa\". ?£article 31C. is valid •• 'f!>e secod. part of the article, viz., \"and no law conta1nmg a declaration that tt ts for giving ect o such policy s'Na,11 be called.~, qution. in any court on the ground that it docs not give effect to such policy 1s invalid.\n\n[Sikri, C.J. and Shelat, Hegde, Grove.r and Mukherjca, JJ. hel4 both the parts of article 31C invalid.\n\nRay, Palekar, Mahew, Beg, Dwivedi and Chandrachud, JJ. held both the ports of the article valid.\n\n'I \"\n\nK:ESAVANANDA V. El!RALA (Sikn, C.J.) s\n\nJaganmohan Reddy J, held the second part of the article invalid and the fust part of the article valid subject to the severance of the words \"inconsistent\n\nwith or takes away\" and the words \"article 14\" therein.\n\nKhanna J. held the first part of the article valid and the second part invalid.]\n\nPer Sikri, . C. /. : The Con; titution Twenty Fourth Amendment is valid, Section 2 of Constitttion Twenty Fifth Amendment is valid. Section 3 of Constitution Twenty Fifth Amendment is void. The Constitution Twenty Ninth Amendment is ineffective to protect the impugned sections if they abrogate or take away fundamental rights.\n\nThe Golaknath case (1967) 2 S.C.R. 762 did not decide the ambit of article 368 with respect to the powors of Parliament to amend Article 13(2) or to amend Article 368 itself. Nor did it determine the exact meaning of the expression \"amendment of this Constitution\". The leading majority did not express -any opinion on the contention that in exercise of the power of amendment Parliament cannot destroy the fundamental structure of the Constitution but can -0nly modify provisions thereof within the framework of the original instrument\n\nfor its better effectuation. The conclu.sion in Golaknath's case tl1at the power of the Parliament to amend the Constitution is derived from Article 245, 246 and 248 of the Constitution and not from Article 368 thereto and that amend\n\nment is a legislative process docs not survive for discussion any longer;. because, it was rightly admitted on behalf of the petitioners that the Constitution 24th Amendment Act, 1971, in so far as it tran.sfcrs the power to amend the Cons titution from the residuary entry (Entry 97 List I) or Article 248 of the Constitution to Article 368, is valid. In other words Article 368 of the Constitutioo as now amended by the 24th amendment deals not only with the procedure for amendment but also with the express powers of Parliament to amend the Constitution. It is not necessary to discuss the merits of the question whether amendment is 'law' within the meaninz of Article 13 as the same result follows in this case even if it be assumed in favour of the respondents that an amendment <>f the Constitution is not 'law' within Art. 13(2) of the Constitution. (p. 96].\n\nI C. Golaknath v. State of Puniab (1967) 2 S.C.R. 672, Sri Sankari Prasad Singh Deo v. Union of India and State of BU.ar (1952) S.C.R. 89 and Saiian Singh v. State of Raiasthan (1965) 1 S.C.R. 933 discussed.\n\nA. K. Gopa/an v. The State of Madras (1950) S.C.R. 88 at p. 100, referred to.\n\nThe expression 'Amendment of the Constitution' does not enable Parlia\n\nment to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.\n\nWithin these limits Parliament can amend every article:\n\n(i) ID construing the expression\n\n1amendment of the Constitution' one mwt look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into article. [p. 101].\n\nBidie v. General Accident, Fire anti Life Assurance Corporation (1948) 2 All E.R. 995-998, Bourne v. Norwich Crematorium (1967) 2 All E.R. 576-578,\n\nTowne v. Elsner 245 U.S. 418; 425-62 L. ed. 372-376 and obsecvations of Gwyer C.J. in The Central Provinces & Bmr Act 1939 F.C.R. at page 42 and Lord Wright in James v. Commonwealth of Australia 1936 A.C. 578 at page 613, relied oa.\n\n6 SUPU:M! COUllT 11.EPORTS [ 1973] Supp. s.c.R.\n\nIn the Constitution the word 'amendment' or 'amend' has been used in various places to mean different things. In view of. the great variation of the phrases used throughout the Constitution it follows that the word 'amendment' must derive its oolou.r from Article 368 and the rest of the provisions of the Constitution. It is not intended. that the whole Constitution could be repealed. [p. 103, 107].\n\nMangal Singh v. Union of India (1967) 2 SCR 109 & 112 and Holmes v.\n\nTennison (10) L. ed. 579: 594, rdied on.\n\nIf on reading article 368 in the context of the Constitution the word 'amendment' is found to be ambiguous, one can refer to the preamble to find which construction would fit in with the preamble. Therefore, the preamble of our Constitution is of extreme impor-..ance and the Constitution should be read and interpreted in the light of the grand and noble vision exprcssocd in the preamble. The Court was wrong in holding in the Berubari's case that the preamble is not a part of the Constitution. It was expressly voted to be a part of the Constitution. In some cases limitations have been derived froril the preamble. [pp. 112, 114, 116].\n\nRe. Berubari Union and Exchange of Enclave>\n\n(1960) 3 SCR 250; 281-82, Golaknoth v. Punjab (1967) 2 SCR 762; 838 and 914, Behram Khurshed Pesikaka\n\nv. The State of Bombay (1955) 1 SCR 613 at p. 653, In re. The Kera/a Education Bill 1957 (1959) SCR 995; 1018-1019, Saiian Singh v. State of Rajasthan (1965) I SCR 933, 968, Attomcy.General v. Prince Ernest Augustus of Hanover ( 1957) A.C. 436; 460 and State of Vicwria v. The Commonwealth 45 A.L.J. 251, referred to.\n\nIt is impossible to equate the directive principles with fundamental rights.\n\nTo say that Directive Principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to be a contradiction in terms.\n\nWhile our fundamental rights and directive .principles were being fashioned and approved by the Constituent Assembly on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may 'not be a binding instrument but it shows how India understood the nature of the human rights. In view of art. 51 of the directive principles this Court must interpret the language of the Constitution, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. [p. 123].\n\nCorocraft v. Pan American Airways (1969) 1 All. E.R. 82, 87, referred to.\n\nThe work of the Advisory Committee and the Minorities Committee of the Constituent Assembly shows that no one ever contemplated that the fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the COnstitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities' rights was ever in the contemplation of the important members of the Constituent Assembly. In the context of the British. Plan, the setting up o'f Minorities Subcommittee, the Advisory Committee and the proceedings of these c.ommittces as well as the proceedings in the Constituent Assembly, it is impossible to read the expression \"Amendment of the Constitution\" as empowering Parliament to abrogate the rights qf minorities.\n\nIt is a sound rule of construction that speeches made by members of legislature in the course of debates rdating tQ the enactment of the statute cannclt be used as aids for interpreting any of the provisions of the statute. The same\n\n.I !f\n\nll.S,1.VANiNJ>A V. KERALA (Sikri, C.J.) 7\n\nrule must be applied to the provisions of the Constitution. The speeches can be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. [pp. 13l, 133].\n\nStat< of Travancore.Cochin and Others v. Bombay Co. Ltd. (1952) SCR 1112; 1121, Adminittrator-General of Bengal v. Prem Nath (1895) 22 I.A. 107- Jl8, Gopalan's case (1950) SCR 88, Golaknath's case (1967~ 2 SCR 762; 792; 922, H. H. Maharaiadhiraia Madhav Rao v. Union of India (1971) 3 SCR. 9 and Union of India v. H. S. Dhillon (1972) 2 SCR 33, referred to.\n\nThe guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if article 13(2) of the Constitution be taken to include constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of 'Amendment' is more appropriate. This conclusion is also reinforced by the concession on behalf of the respondents that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words the expression •Amendment' of this Constitution docs not include a revision of the whole Constitution. If this is true then which is that meaning of the -\\vord 'amepdment' that is most appropriate and fits in with the whole schieme of the Constitution. That meaning would be appropriate which would enable the country to achieve -a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble. [p. 140].\n\nThe Bribery Com, nissioner v. Pedrick Ranasinghe (1%5) A.C. 172, MC- Cawley\" v. The King (1920) A.C. 691, and In re. The Regulation and Control of Aeronautics in Canada (1932) A.C. 54 at p. 70, referred to.\n\nThe same conclusion is arrived at by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations arc implied from necessity or the scheme of the Constitution. The Solicitor General appearing on behalf of the Union of India conceded that implications can arise: from a Constitution, but said that no implication necessarily arises under the provisions of article 368. Reading the preamble, the fundamental importance of the freedom of individual, indeed its inalienability, the importance of the economic, social and political justice mentioned in the preamble, the importance of the directive principles-, the non-inclusion in article 368 or provisions like articles 52, 53 and various other provisions, an irresistible conclusion emerges that it was not the intention to use the word \"amendment' in the widest sense. It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It semis also to have been a common understanding that the fundamental features of the Constitution, namely secularisn1, democracy, and the freedom of the individual would always subsist in the wdfare state.\n\nIn view of the above reasons, a necessary implication a.rises that there are implied limitations on the power of Parliament, that the expression 'Amendment of the Constitution' has .conseq,,.ntly a timited meaning in our Constitution, and not the meaning suggested by the respondents. [pp. 141, 163; 164 ].\n\n8 SUPREME COURT REPOllTS [1973) Supp, S.C.R.\n\nThe Bn\"bery Commissioner v. Pedrick RllfUUinglie (1965) A. C. 172, Mangal Sinth v. Uniun of India (1967) 2 SCR 109112, Taylor v. The Attornry-General\n\nof Queensland 23 C.L.R. 457, and In \"· The Initiative and R<f.,...dum Acl\n\n(1919) A.C. 935, applied.\n\nHawk• v. Smith 64 L. Ed. 871, Rhode Island v. Palmer 64 L. Ed, 946, Uniled States of America v. William H. Soragu1 (75) L. Ed. 640, Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) A.C. 378; 389, Bank of Toronto v. Iambe (1887) 12 A.C. 575-587 and Th• State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and others (1935) Irish Reports\n\n170, discinguishcd.\n\nIf the argument that there is no limit to the power of Parliament to amend the Constitution is accepted, Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unamendablc.\n\nIf this is so a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people and after having effected these purposes make the Constitution unamcndablc or cxucmcly rigid.\n\nFor the aforesaid reasons, one is driven to the conclusion that the expression \"Amendment of this Constitution\" in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble a, nd the Directive Principles. Applied to fundamental rights it would mean that while fundamental righis cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest. It is of course for Parliament to decide whether an amendment is nec.essa_ry. The courts will not be concerned with the wisdom of the amendment. This meaning would enable Parliament to adjust fundamental rights in order to secure whiat the Directive Principles direct ro be accomplished, while maintaining the freedom and dignity of every citizen. [p. 164 ].\n\n(ii) Amendment within the contours of the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and the basic structure of the Constitution remains tlM! same.\n\nBasic -structure may be said to consist of the following features: (a) Supremacy of the Constitution (b) Republican and democratic form of government (c) Secular character ofi the Constitution (d) Separation of powers bctwen the leigslaturc, the executive and the judiciary (c) Federal character of the Constitution.\n\nThe above structure is built on the basic foundation, that is, the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. T~ above foundation and the above basic features arc easily discernablc not only from the Preamble but the whole scheme of the Constitution. [p. 165].\n\n(iii) The provisions of articles 33, 358 and 359 and the uoe of the words 'rights conferred' in article 13(2) cannot support the proposition that some of the rights in Part III arc not natural or inalienable righu. India was a party to the Universal Declaration of Right1 and that declaration describes some fundamental rights as inalienable. Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rigau'. [p. 167].\n\nUSAVANANDA I/, Jtl!RALA (Sikri, C.J.) 9\n\n(iv) If Parliament hu power to pass the impugned amendment Acts, there . i1 no doubt that the wisdom of the policy of the Pai:liament cannot be questioned. jlut if the net result of the above interpretation is to prevent Parliament\n\nfrom abrogating the fundamental rights or the basic structure outlined above it is impossible to appreciate that any uncertainty, friction or confusion will necessarily result. [p. 174]. ·\n\n(v} It was righ<tly concedc, d that Parliament could validly amend article 368 to transfer the source of '1\"ending power from List I Entry 97 to Article\n\n368. The amendments indicating that the source of amending power will be found in article 368 itself and the amendment making it obligatory on the President to give his assent to anr. bill duly passed under the article were within the amending power of the Parliament. It is not necessary to go into the question whether Subba Rao, Chief Justice, rightly decided that the amending power was in List I Entry 97 or article 248 because nod:ting turns on it now.\n\nIt is not. legitimate to interpret article 368 as pehnitting Parliament to en larging its power to amend the Constitution. Clause ( c) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression 'amendment of the .Constitution~ docs not change when one reads the provision. Article 368 can only be amended so as not to change its identity completely.\n\nParliament, . for instance could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression\n\n~'Amendment of t1le Constitution\" so as to derive power to abrogate fundamental righ.ts. If the words 'notwithstanding anything in the Constitution' arc designed to/widen the meaning of the word 'amendment of the Constitution' it would have to be held void as beyond the amending power. But they must not be read to mean this. They are inserted to get rid of the argument that article 248 and Entry 97 List I contains power of amendment. Similarly, the insertion of the words \"in exercise of its constituent power only serves to exclude article 248 and Entry 97 List I and tmphasisc that it is not ordinary legislative rower that Parliament is exercising under .Article 368 but legislative pov,; er o amending the Constitution.\n\nIt cannot be said that if Parliament cannot increase its power of amendment clause ( d} of Section 3 of the 24th. amendment which makes article 13 inapplicable to an amendment of the Constitution would be bad. There was no force in this contCntion. Anicle 13(2) as it existed previous to the 24th amendment as interpreted by the majority in GolaJcnath' s case prevented legislatures from taking away or abridging the rigljts conferred by Article 13. In other words any law whi.ch abridged a fundmcntal _right even to a small extent was liable to be struck down. Under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits laid down in this judgment. The amendment of article 13(2) docs not go beyond the limits laid down 1:5ecau~ Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fu!ldamental rights. After the amendment a law which. !las the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down. [pp. 192, 193, 194].\n\nSection 2 of the Constitution Twenty fifth Amendment Act, 1971, has been validly enacted.\n\nThere cannot be any doubt that the object of Section 2 of the Constitution Twonty Fifth Amendment Act is to modify the decision given by this Court in RUllOm Cavtuiief COOf'<' v. UtJi.on of India (1970) 3 SCR 530 where it was .held by ten judgos that the .Balling Companies (Acquisition and Transfer of\n\n10 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nUndertakings) Act violated the guarantee of compensation under article 3!(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not. be .regarded as-· compensation. Since the word compensation has been deliberately omitted and substituted by the word 'amount' in the amended article 31(2), it is not possible to give to the word \"amount\" the figurative meaning, that is, the full value. Article 3!(2) postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this shows that the vrord •amount' here means something to be given in lieu of the property to be acquirt.d but this amount has to and can be worked out by laying down certain principles.\n\nThe principles must then have a reasonable relationship to the property which is sought to be acquired. If this is so die amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be ; icquired, otherwise the principles laid down by the Act could hardly be principles within the meaning of Article 31 (2 ). Similarly when the alrtount is fixed by law the amount so fixed must ialso be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily.\n\nWhen the government places the legislation fixing the amount before the legislature it will have to show that it has been fixed according to some principles. These principles cannot be different from the principle which the legislature would lay down. The change effected by the amendment in article 31(2) is that a person whose property is acquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If article 31(2) were to be interpreted as meaning that even an arbitrary or illusory or a grossly low amount could be given, which would shock not only the judicial conscience but the conscience, of every reasonable human being, a serious question would arise whether Parliament has not exceeded its amending power under article 368 of the Constitution. The substance of the fundamental right to property under article 31 consists of three things: First, the property shall be. acquired by or under a valid law; S\"ondly, it shall be acquired only for a public purpose; and thirdly, a person whose property has been acquired shall he given an amount in lieu thereof, which is nor arbitrary, illusory or shocking to the judicial conscience or to the conscience of mankind. Parliarnent has no power under the article 368 to abrogate the fundamental rights but can amend or rer, ulate or adjust them in its. exercise of amending power without destroying them. Applying this to the fundamental right of property, Parlia. ment cannot c-n1power legislatures to fix an arbitrary amount or illusory amount or an amount th.at virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. It cannot be interpreted to mean that an arbitrary manner of payment is contemplated. If discretion is conferred it must be excr. ciscd reasonably. [pp. 195, 196, 197].\n\nRobberts v. Hopu•ood (1925) A.C. 578; 590 and fames Laslie Williams v.\n\nHaines Thomas (1911) A.C. 381, referred to.\n\nArticle 31 (2B), the effect of which is to make article l9(!)(f) inapplicable, cannot be said to be an unreliSonablc abridgement of right under article 19(1)(£).\n\nWhile passing a law fixing principles, the legislatures arc bound to provide a procedure for the detenninatiori of the amount and if the procedure is arbitrary that provision may well be struck down under Article 14. [p. 199].\n\nKE$AVANANDA v. KEllALA. (Sikri, C.J.) 11\n\nSec#on 3. of the Constitution Twenty Fifth Amendment Act, 1971, is vo; iJ as it dekgates power to legi'slatures to amend the Constitution. Articl~ 368 doi!s not enable Parliament in its Constituent capacity to delegaie ; u\n\nfunction of amending the Constitut.,-on to another legislature or to itself in its ordinary legiilative capaa\"ty.\n\nThe . expression 'notwithstanding anything contained in article 13' with which article 31C open• canMt mean that not only fundamental rights like article 19(1)(f) and article 31 arc excluded but funda:ncntal rights belonging to the .Minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in clause\n\n(b) or (c) of article 39 from being challenged on the ground that the law is inconsistent with or takes away or abridges any of the rights conferred by articles 14, 19 or 31. This is the only ground on which they cannot be challenged. (p. 199].\n\nThe article. provides that if the law contains a declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it docs not give effect to such policy. In other words once a declaration is given no court can question the law on thegrou.nd that il has nothing to do with giving effect to the policy; whether it gives effect to\n\nsOme other policy is irrelevant.\n\nFurther a law may contain some provision dealing with principles specified in clause (b) or (c) of article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or. jurisdiction to go into this question.\n\nIn the f:tcc of the dcdaration this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral -part of the policy directed to give ef!cct to article 39(b) and article 39(c) (p. 200].\n\nArticle 31C dif!crs in nature from article 31A. In article 31A the subject maner of the legislation is clearly provided, namely, the acquisition by the State _pf any estate or any rights therein. [art. 31A(a) J Similarly the subject matter of legislation is specifically provided in clauses (b),' (c) and (d) of article 31A. But in article 31C the sky is the limit because it leaves it to each\n\nState to. adopt measures towards securing principles specified in clauses (b) and (c) of article 39. The wording of articles 39(b) and 39(c) is vety wide.\n\nThe expression \"economic system\" in article 39(c) may well include professional and other services.\n\nIt would be difficult to resist the contention of the State that each provision in the law had been taken for the purpose of giving effect to the policy of the State. (pp. 201, 202].\n\nIn effect article 31C enables States to adopt any policy they like and •brogate article 14, 19 and 31 of the COnstitution at will.\n\nParliament cannot under article 368 abrogate fundamental rights. Parlia• ment equally cannot enable the legislatures to abrogate them. This provision enables legislatures to . abrogate fundamental rights and therefore must be declar.ed .unconstitutional. [p. 204],.\n\nArticle 368 of the C.Onstitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of .Parliament ln _other word.s Article 368 docs not contemplate any <;>!her mode of amen\\ll)lcn\\ by Patli.ill)cllt aQ.d. it docs not equally contemplate Parliament to set up .ant body .to aq;.nd 'the C.Onstitution. It is ~IL settled , i, ii. India that Parliament canruit deltgate its essential legisl•tive functions. [p. 21Jof!!\n\n12 SVPUMK coo.T llEPORTS (1973] Supp. s.c.a.\n\nSince the State legislates under article 31C and the law abrogo, tes. or takes away fundamental rights, the11: cease to have any eflect. The amendment ii not then made by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems that it is State legislation that effects an amendment of the Constitution. If it be assumed that article 31C does not enable the State to amend the Constitution then article 31C would be ineflective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by article 368, that is by two third majority of the Parliament but by another body which is not recognised in article 368 and would be void on that ground. [p. 210].\n\nWhat article 31C does Is that it empowers legislature subject tn the condition laid down in article 31 C itself to take away or abridge the rights conferred by article ')4, 19 and 31. At any rate, if it is to be deemed an amendment of article 368 it is beyond the powers conferred by article 368 itself.\n\nArticle 368 docs not enable the Parliament to constitute another legislature to amend the Constitution in its exercise of the power to amend article 368 itself.\n\nFor the aforesaid reasons it must be held that section 3 of th~ Constitution 25th Amendment Act is void as it delegates power to the legislatures to amend the Constitution. [P. 211].\n\nAkadasi. Padhan v. State of Orissa (1963) Supp. 2 SCR 691-707, R. C.\n\nCoop.,. v. Union of lndU. (1970) 3 SCR 530-582, In re. lnitilllive nd Rql!1'en• dum Act (1919) A.C. 935, Attorney-General of Nova Scotia v. Attorney Genl!ral of Canada (1951) S.C.R.-Canada 31 Nadan v. The King (1926) A.C. 482, The\n\nQueen v. Burah, 5 I.A. 178 (1878) 3 A.C. 889; 904; 905, and Mohamed Samsudeen Kariappl!r v. S. S. Vijesinluzl (1968) A.C. 717, 743, rcfcrrcd tn.\n\nThe Constitution Twenty Ninth Amendment Act is iectitJe to protect the impugned Acts if they abrogate or take away funda)nenllll rights:\n\nThe argument that article 31B is limited by what is contained in article 31A cannot be accepted. [p., 213].\n\nState of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) SCR 889; 914-15, Sibnath Banerii's case (1945) F.C.R. 19, Visweshwar Rao v. State of Madhya Pradesh (1952) SCR 1020-1037 and N. B. /eejeebhoy v. Assistant Collector Thana (1965) I SCR 636-6411, referred to.\n\nArticle 368 does not enable the Parliament tn abrogate or take away fundamental rights. If this is so it does not enable Parliament tn do this by any means including the device of article 31B and the Ninth Schedule. This device of article 31B and the 9th schedule is bad in so far it protect statutes\n\neven if they take away fundamental rights, Therefore, it is nea:ssary to declare that the Constitution (Twenty-ninth Amendment) Act, 1971 is incffcctive tn protect the impugned Acts if they take away fundamental rights. [p. 214 J.\n\nBroadly speaking constitional amendments hihcrto made in. art!cle 19 and anicle 15 and the agrarian laws enacted by vanouo S12tes furnish illustration , f>f reasonable abridgement of fundamental rights in the public interest.\n\nXESAVANANDA V. KllALA (She/at, J.) 13\n\nProprietary Articles Trade Ass0<iation v. Attorney General for Canada\n\n(1931) A. C. 310; 317, and Att0<ney General for Australia v. The Queen and the Boilermakers' Society of Auttralia (1957) A.C. 288; 323, referred to.\n\nThe fact that it takes years before the validity of an enactment is finally determined is not a good reason to deprive pcnons of their fundamental rights.\n\nThere are other ways available to the government to expedite_ the decision.\n\nIt may, for example, propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to this Court for determination of substantial questions of interpretation of the Constitution. [p. 215].\n\nShe/at and Grover, JI:\n\nThe Constitution Twenty Fourth and Twenty Ninth Amendments arc valid. Section 3 of the Twenty Fifth Amendment must be declared un constitutional and invalid.\n\nThe decision in Golak, nath has become academic, for, even if it be assumed that the majority holding that the word 'law' in Article 13(2) covered constitu tional amendments was not correct, the result on the questions, wider than those raised in Golaknath, now raised before the Court, would be just the Same. [p. 217].\n\nThough the power to amend cannot be narrowly construed and ertentlt to all the articles, it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features.\n\nEven if the amendint power includes the power to amend article 13(2), a question not decided in Golaknath, the power is not so wide as to £nclude\n\nthe power to abrogate or take away the fundamental freedoms.\n\nWhile interpreting constitutional provisions it is necessary to determine t; heir width or reach ; in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined, without fully examining the rival claims. Unless that is done the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.\n\nThe Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of. them has to function within the four corners cf the constitutional provisions. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction _from its provisions. The Constitution has entrustedto the judicature in this Country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written .and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being article 368. [pp. 220, 221].\n\nWith regard to the position of the judiciary the British model has been ' adopted inasmuch as the appointment of Judges both of the Supreme Court and of the High Court is kept free from political controversies. Their independence has been assured. But the doctrine of Parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided Tiy the Constitution.\n\nThe entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the Collntry as a republic and the democratic way of life by parliamentary institutions based on free and fair elections. [p. 221). ·\n\n14 SUPRP.¥E COuRT REPORts [1973] Supp. s.CJI.\n\nThe word 'amendment' has been used in the Constitution in various articles, .sometimes in a narrow and sometimes in a wider sense. The meaning of the word 'amendment' must be interpreted on the basis of its use in our own Constitution. It would be purely speculative or conjectural to rely on the use of the word 'amcnd 1 or 'amendment' in the C-onstitution of another Countty unless the entire scheme of amending section or article is also kept in mind.\n\nThe position which emerges from an examination of the speeches in the Constituent Assembly docs not lead to any clear and conclusive result.\n\nThe speeches show that our Constitution was to be an amendable one and much rigidity was not intended. (pp 228, 234 ].\n\nIt is not possible to accept the argument on behalf of the respondent that the word 'amendment' can have only one meaning. The word has several meanings and the Court will have to determine its true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. A Constitution is not to be construed in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty is to interpret it. (pp. 234, 235].\n\nIn re C.P. & Berar Sol-es of Motor Spirit & Motor Lubricants Taxatjon Act~ 1938, [1939] F.C.R. 18, Attorney General for New So#th Wales v. The Brewery employees Union of New South Wales etc., (1908] 6 CL.R. 469, 611-012, fames\n\nv. Commonw<alth of Australia, (1936] A.C. 578 and Bidis v. General Accident, Fire and Life Assurance Corporation, (1948]2 All E.R. 998, referred to.\n\nApart from the historical backgronnd and the scheme of the Constitution the use of Preamble has always been made and is permissible i£ the word 'amendment' has more than one meaning. The Constitution makers gave to the Preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the Country had struggled during the British regime and a Constitution was sought to be enacted in ac.cordaru:c with the gcniw of the Indian people. It is not without significance that the Preamble was passed only after the draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The Preamble was, there~ fore, meant to embody in a very few and well-defined words the key to under~ standing of the Constitution. [pp. 235, 236].\n\n\nCommissioner of Income-tar Rajasthan [ 1959] Supp. 1 S.C.R. 528, In re Kera/a Education Bill, 1957, (1959] S.C.R. 995, Rer v. Hm, (1949) Dom. L. R. 199, john Switzman v. Freda Elbing & Attorney General of tAe Prov; nce of Qubec, (1957] Canada L.R. 285, 326 (S.C.), Re Alberta Statutes, (1938]\n\n\nIt hardly makes any substantial difference whether the Preamble is part of the Constitution or not. The Preamble serves several important purposes.\n\nFirstly, it indicates the source from which the Constitution comes, v; z,, the people of India. Next, it contains the enacting clause which brings into force the Con!ltitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of\n\nKESAVANANllA v, KllALA (She/at, J,) 15\n\ngovernment and polity which was io be established. Fr<lm aft these, if any provision of the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by article 368. [p. 242].\n\nThe contention that the Preamble can be varied, altered and repealed is an extraordinary one. It. QJ.3.Y be tru.e about ordinary statutes but it cannot possibly be sustained in the light of the historic background, the Objectives Resolution which formed the basis of the Preamble and the fundamental position which the Preamble occupies in our Constitution. It constitutes a land.mark in India's history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the Constitution makers ever conceived of a stag.c when it would be claimed that even the Preamble could be abrogated or wiped out. [p. 242]. ·\n\nWhere two constructions arc possible, the Court must adopt that which will C..'lsure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing bw nugatory.\n\nThe conscqucnccs and effect of suggested construction have to be taken into account as 'has been frequently done by this Court [p'. 244].\n\nState of Punjab v. Ajaib Singh, [1953] S.C.R. 254, 264, Liyanage v. The Queen [1967] I A.C. 259, The Bank of Toronto v. Lambe (1887) 12 A.C. 575, referred to.\n\nIt is not for the Courts to enter into the wisdom or policy of a p3rticular provision in a Constitution or a statute, That is , Jor the Constitution makers or the Parliament or the legislature. But it is well settled that the real consequences can be taken into account while judging.width of the power. TheCourt cannot ignore the consequences to which a particular constructltin can lead while ascertaining the limits of the provisio_ns granting the power. [p. 245].\n\nThe amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested and if that power has limits it can be exercised only within those limits.\n\nArticle 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the voice of the States in the amending process. If the Constitution makers arc inclined to confer the full pc>wC1'. of a Constituent Assembly, it could have been easily provided in suitable terms. !f however the original power was limited to some extent it could not be enlarged by the body possessing the limited power. That being .so even where an amending power is expressed in wide terms it has to be exerct.cd within the framework of the eon.titution. It cannot abrogate the Constitution or frame ill.new Constitution or alter or change the essential elements of the constitutructure. It cannot be overlooked tha~ the basic theory of our Constitution •is that \"Pouvoir Constituent\" is vested in the people and was exercised for and on their behalf by the Constituent Assembly for the purpose of framing the Constitution. [p. 251 J. •\n\n. The true distinction between controlled and uncontrolled constitution lies not. merely in the difference. in. the procedure of amendment but in the fact tha1 in tontrolled Constitutions the Constitution has a higher status by whose touch'. stone the validity of a law made by the legislature and the organ set up by it is subjea.d to the process of judicial review.' Where there is a 'e'Jin\n\n16 SOPIWdJI COtJllT llEPOllTS [ 1973] Supp. s.c.11.\n\nConstitution which adopts the (irwnble of smereignty in the people then: is, firstly no question of the law-making body being a sovereign body, for that body possesses only those powers which are conferml on it. Secondly, however representative it may be it cannot be equated with the people. This is specially so where the Constitution contains a Bill of rights for such a Bill imposes restraints on that body, that is, it negates the equation of that body with the people. [p. 252].\n\nThe meaning of the words \"amendment of this Constitution\" as used in the article 368 must be such as accords with the true -intention of the Constitution makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure or framework and the intrinsic evidence in various articles including article 368. It is neither possible to give it a narrow meaning nor can such a wide meaning be given as will enable the amending body to change subsrantially or entirely the structure and identity of the Consti tu ti on. The concession by the respondents that the whole constitution cannot be abrogated or repealed and a new one substituted supports the conclusion that the widest possible meaning cannot be given to it. [p. 255].\n\nBribery Commissioner v. Pedrick, (1965] A.C. 172, 193-94, Rhode Island v.\n\nA. Mitchel Palmet, 64 L. Ed. 946, /. /.Dhillon v. R. W. Gloss, 65 L. Ed. 994, United States v. William H. Sprague & William /. Howey, 75 L. Ed. 640, 644, Howard /oseph Whitehill, 19 L. Ed. 2nd 228 and Hawi{e v. Smith, 64 L. Ed. 871, referred to.\n\nThere is ample evidence in the Constitution itself to indicate that it creates a system oi checks and balances by reason of which powers are so distributed that none of the three organs can bccoJ; ne so predominant as to disable the others from exercising and discharging powers and functions entrusted to them.\n\nThough the Constitution does not lay down the principle of separation of powors in all its rigidity as is the case in the United States Constitution, it cnvisaaes such a separation to a degree as was found in RanasingAe's case. The judi.Clal review provide(! expressly in the Consaitution by article 226 and 32 is one ol. the features on which hinges the system of checks and balances. Apart from that the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Conscitution. The function of inter pretation of a Constitution being thus assigned to the judicial power of the State the question whether the subject of a law is within the ambit of one or more powers in lcgislaturej conferred by the Constitution has always been a question of interpretation of the Constiaution. It may be -added that at no stage the' respondents contested the proposition that the validity of , a Constitution amendment can be the subject of review by this Court. Judicial review cannot be undemocratic in our Constitution because of the provisions relating to the appointment of Judges, the specific restrictions to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in article 21 and the affirmation in article 141 that Judges declare but no< make law. To this may be added the none - rigid arncndatory process which authorises by means of two third majority and the additional requiremcot of ratification. [p. 278].\n\nBribery Commissioner ~. Pedrick RanasingAe, [1965] A.C. 172, Attorney General for the Commonwealth of Australia v. Colonial Sugar, [1914] A. C. 237 and West v. Commissioner of Tara#on (N.S.W.) (1936-37) C.L.R. 657, relied on.\n\nCase law discussed.\n\nThe correct approach to the question of limitation which may be implied in any legislative provisions including a constitutional document hao to be made from the point, of view of interpretation. It is not a novel theory\n\nXESAVANANDA fl, KEllALA (She/at, J.) 17\n\nor doctrine which has to be treated as innovation of those who evolve heterodox methods to substantiate their own thesis.\n\nThe argument that there arc no implied limitations because there are no exptcSI limitations is • contradiction in terms. The implied limitations can only arise where there arc no express limitations. The contention that no implications can be read in an. amending power in a Constitution must be therefore repelled. [p. 279].\n\nThe whole scheme underlying the Constitution is to bring about economic and r.ociai changes without taking away the dignity of the individual. Indeed the same has been placed on such a. high pedestal that to ensure &eedom etc. from infringement has been justicfable by the highest court in the land. The dictum of Da~ C.J., in Kera/a Educllhon Bill \"points the true picture in which there must be harmony between Parts III and IV ; indeed the picture will get distorted and blurred if any vital provision out of them is cut out or denuded of its identity. [p. 280].\n\nThe basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that netither the citizen nor the Parliament would be able to understand it are unfounded.\n\nIf the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Art. 368 arc kept in mind there can be 110 difficulty in discerning that the following can be regarded as illustrating the basic clements of the constitutional structure :\n\n(I) The supremacy of the Constitution; (2) Repulillcan democratic form of\n\ngovernment and soverignty~ the Coon try; ( 3) Secular and federal character of the Constitution ; ( 4) Demarcation of power between the legislature, and executive and the judiciary ; (5) The dignity of individual secured by the various freedoms and basic righu in Part III and the mandate to build a welfare State contained in Part IV and ( 6) The unity and the integrity of the nation. (p. 280].\n\nThe 24th Amendment does no more than to clarify in express language that which was implicit in the unamended article 368 ahd it docs not or cannot add to the power originally conferred thereunder.\n\n'fhc entire discussion from the point of view of the meaning of the ec:prcssion \"amendment' as implied in article 368 and the limitations which arise by implication leads to the result that the amending power under attidc 368 i• neither narrow nor unlimited. On this footing the , validity of the 24th amend ment can be sustained if article 368 as it originally -stood and after the amendment is read in the above manner. The insertion of article 13( 4) and 368 and other provisions made will not a!Iect the result, vis., that the power in article 368 i• wide enough to permit amendment of each and every article of the Constitution by way of addition, variation or repeal so long as its basic clements arc not abrogated or denuded of their identity. [p. 281 ].\n\nSectioo 2 of the 25th Amendment is ••lid\n\nClause (2) of article 31 as substituted by s. 1 of the 25th Amendment doe. llot abrogate any basic clement of the Constitution nor docs it denude it of it. identity because- .\n\n(a) the fiution or the detemiination of the 'amount' under that article has\n\nto be based on oorne norm or principle which must be relevant for die purpme of arriving at t1i\" amount payable in respect of the property acquind or requisitioned ; :!,-'6 S.C. tlld<-/13\n\n18 SUPREME COURT REPORTS [ 1973 J Supp. s.c.R.\n\n(b) the amount need not be the market value but it should have a reasonable\n\nrelationship with the Value of such property ;\n\n(c) the amount should neither be illusory nor fixed arbitrarily;\n\n{d) though the courts arc debarred from going into the question of the\n\ndcquacy of the aout and would give due weight to legislative Judgment, the cxam1natton of all the matters in (a), (b) and (c) above is open to judicial review.\n\nAs regards clause (2B) inserted in article 31 which makes article 19(1)(!) inapplicable, there is no reason trJ suppose that for determination of the amounr 'OD. the rinciplcs laid do, vn in the law any such procedure will be provided which will be unreasonable or opposed to the rules of natural justice. [pp. 291 292]. ,\n\nSection 3 of Constitution Twenty Fifth Amendment is unconstitutional and\n\ninvolid\n\nThe validity of section 3 of the 25th Amendment cannot be sustained because the said article suffers from two vices.\n\nThe first is that it enables abrogation of the basic clements of the Constitution inasmuch as the fundamental rights contained in articles 14, 19 and 31 can be completely taken away and, secondly,\n\nthe power of a1nendmcnt contained in article 368 is of a special nature which has been exclusively conferred on Parliament and can be exercised only in the\n\nmanner laid down !n that article.\n\nThe same could not be delegated to any other legislature in the Country.\n\nSection 3 must therefore be declared to be: wnconstitutional and invalid. [ p. 292 J.\n\nThe 29th Amendment is valid\n\nTne question whether the articles included in the Ninth Schedule by that amendment or any provision of those Act abrogates any of the basic elements of die constitutional structure or denudes them of . their identity will have to be examined when the \\'alidiry of those Acts comes up for consideration,\n\nHegde and Mukherjea, /l.\n\nThe Constitution 1'wc-nty Fourth and Twenty Ninth. mcndments arc v•lid. Section 2 of the Constitution Twenty Fifth Amendment is valid. Section 3 of the Constitution Twenty Fifth Amendment is invalid.\n\nThe power to amend the Constitutjon u-lt.Jer\"Art. 368 a.r it stood before its amendment empoweed, the Parliament by foll<>wing the form an4 manner laid down in that ':Article, to amend each nd et1dy Article and\n\neach and every Part of the _Constitutjon.\n\nThe view taken in Sankari Pi-asad's case, Saifan. Singh'~ case as well as Gol.alf..nath' s case that the .(>f?r-\"Cr .to amend is to be found in article 368 is thC -correct view. It is difficult to accept the view that the power to amend the\n\nCPnstitritiOO is 'not to bC fou'nci even by necessary implication in article 368 but mst 'he !ound c1sc\\vhere .. Our .Constitutioh .makers, whq were _keenly\n\nconscious of the importance of the provision relatiflt~ to the amendment of the .Constitution and .dbated that question for several days would not have !cf! this in>portant power . :hidden in Entry 'Y7 or ,, ist I leaving it to the of'! cha~ of the, courts locating that power in that Entry. The reasoning in suppo; t of the view fails to give due weight ti>, the fact that the <l!'°!cisc of th~\n\npower under arti<lc 245, 2~6 anc 248 is \"sub!l!<:t.' ta the, pt'OV!OJOn$, of , th!S Constitution\". Most amendments of the Const1t\\1t1on .must nccqrily .un?IJge,\n\n!K.ESAVANANDA ,,. KERALA (Hegde, J.) 19\n\non one or the other of the existing provisions of the Constitution, Article 248 as well as the Lists in the 7th schedule merely deal with the legislative wer and not with the amending power. [p. 299].\n\nArticle 368 docs not expressly i:onftr the power to amend; the power is necessarily implied in the article.. The Article contains both the power and the procedure for an1cnding the ConstitUtion.\n\nThe article opens by saying \"An a1nend1ncnt of the Con!-.titution\" which means an amendment of each and every provhion an<l part of the Constitution. There is nothing in that article to restrict its scope. If article 3~$. is read by itself, there could be no doubt that the power of an1<.:ndr.nent implied in that article can reach each and every article as well as every part of the Coostitutfon. [pp. 299, 300].\n\nTh< exprmion 'law' in Articl< 13(2) <v<n b<for< Art. 13 was ammd<d\n\nby the 24th Amendment Act did not include amendments to the Constitution.\n\nA Constitution is cxprc.tcd tc endure for a long time. Therefore, it must necessarily he elastic. Society cannot be placed in a strait jacket. When society grows, it~ requirements change. The Constitution and the laws may have to be changed to suit those needs. No single gcn¢ation can bind the cOurse of generations to come.\n\nHence every Constitution wisely drawn up provides for its own amendment. [p. 305].\n\nTo implement the duties imposed on the State' under Part IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or, individuals under Part Ill, as in the case of incorporation , of .clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Artkle 19(2) with a view to maintain effectively public order and friendly relations \\.vith foreign States.\n\nHence; the ar)lending power should not be construed iri a narrow or pedantic man&cr~ The .power, must receive a broad and libcr~.l interpretation. How large it Should be is' a qpcs-- tion that requires closer examination. Both on priniplc as -well as on the language of Anide 3~ it was impossible to aq::cdc to the contention that no right guaranteed by Part III, can be abridged. [p. '305].\n\nIt is not cle:ir why the Drafting Committee deleted the reference to the amendment of the Constitution in Article 13(2). It is possible that they were of the opinion that in view of the plain 'language of' the provision relating to the amendment of the Constitution, that is draft Article 304, it was unnecessary. to provide in Article 13(2) that the amendment of the .Constitution docs not .c.; qme within its scope •\n\n. ThiS Court i11 alvs reluctant to overrule its lier. decisios.\n\nThere must be compciling reasOns for overruling an earlier decision of this Court.\n\nThere are already conflicting decisions as to the scope . of Article 36$.\n\nAs for back as ll, in Sankari &asad's case, this Court took. the view .that. the\n\npOer of amendment confcireq under article. 368 . included 'in itself the power\n\nto abridge a.nd take away the fundamental. right. incorporated in Part 'III of the 'Constitution. The correctness of that view was hot cha1lcngcd:. in several\n\noth~.r de.cisio~S~. Th~~ same. VeW wa' taken in Sii'!n. Singh's 'rJse. 'That view ws negatived i.n GOlQknath'.j'c:asc by a very .arrbw majority:, [p. 3061. ·\n\n. ·.One other. circumsiilnccs of' grt signifitanecifthat the first ·; t; n1en<lmertt to the Constitution was carried out by the prl>V!Sli>nal Par!Wlien~ which. eon' •isted of the very members who were the members of th~ C<instituent Assembly.\n\n20 SUPREME COURT llEPOl\\TS [1973} Supp. s.c.a.\n\nIt should be remembered that members of the Constitucot Assembly continued as the members of the provisional Parliament till the general election in 1952.\n\nThey must have been :nvarc of the intention with which article 368 was enacted. [p. 306].\n\nThough the power to amend the Constitution untler Article 368 is • very wide power, it does not include the power to destroy or emascuate the basic elements or the fUndamental features of the Constitution.\n\nSince the word ament.hncnt in Article 368 is not a word of precise import and has not been used in various articles and parts of the Constitution to convey always the same precise meaning it is necessary to cake the aid of other relevant rules of construction to find out. the intention of the Constitution-makers.\n\nIf the nature of the power granted is clear and beyond doubt the fact that it may be misused is '\"'holly irrclcvat. But, if there is a reasonable doubt as. to the nature of the powe:: granted then the Court has to rake into consideration the consequences that might ensue by interpreting the same as an unlimited power. Since the word 'amendment' has more than one meaning it is necessary to examine the consequences of accepting the contention of the Union and the States. [p. 313].\n\nIt is difficult to ac\\:cpt the contention that our Constitution makers after making in1mrnsc. sacrifices for achieving certain ideals made provisions in the Constitution itself for the destruction of those ideals.\n\nThere is no doubt as men of experience and round political knowledge they must have known that social, econon1ic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not amere political document. It is essentially a social document.\n\nIt is based on a social philso phy and every social philooophy like every religion has two main features, namely, basic and circurnc; tantial.\n\nThe former remains constant but the latter is subject to change.\n\nThe core of religion always remains constant but the practices associated with it may change.\n\nLikewise a Constitution like ours contains certain features which arc so csscntial that they cannot be changed or\n\ndestroyed. In any event it cannot be destroyed from within. In other words, one cannct legally use the Constitution to destroy itself.\n\nUnder Article 36S the amended Constitution must remain \"the Constituti'on\"- whiCh means the original Constitution. \\Vhcn we speak of the 'abroation\n\n1 or 'repeal' of the Constinnion we do not refer to any form but to substance. If one or more of the basic features of the Constitution arc taken away to that extent the Constitution is abrogated or repealed.\n\nIf some other provisions inconsistent with those features arc incorporated it cannoll still remain the Constitution referred to in Article 368. The personality of the Co. ·•titution must remain unchanged. [p. 314].\n\nIt is also necessary to bear in mind that the power to amend the Constitution -is conferred on Parliament, a body constituted und\"cr the Constitution.\n\nThe people as such are not associated with the amendment of the Constitution.\n\nThe Preamble shows it i< the people of this country who conferred this Coosti tution on themselves. The statement that the people of this country conkrrcd the Constitution on themselves is not open to challenge before the Court. Its factual corrtttncss cannot be gone into by this Court which again is a creature of the Constitution. n •• facts set out in the preamble have to be acuptcd hr this Court u correct. [ p. 315 J.\n\nUSAVANANDo\\ II. ULU-4 (Hegde, J.) 21\n\nWhen a power to amend a Constitution is given to the people its contents can be construed to be larger than when that power is given to a body ' constituted under that Constitution.\n\nTwo-thirds oI the members of the twe Howes of Parliament nrcd not neccasarily represent even the majority of the people of this country. Our electoral system is such that even a minority of vOO:rs can elect more than 2/3 of the members of the either House of Parliament.\n\nThat is seen from our c:xpericncc in the st. That apart, our Constitution wat framed on the basi~ of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantee given to the minorities may )>ecomc valueless.\n\nIt is wcllknown that the representatives of rhc minorities in the Constituent .Assembly gave up their claim for special protection which they were demanding -in the past because of the guarantee of the Fundamental Rights.\n\nTherefore, the contention en behalf of the Union and the States that the two third nujority -of the members of the two houses of Parliament arc always authorised to speak on behalf of the entire people of this country is unacceptable. [p. 315].\n\nImplied limitations on the power conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications in the context or even by\n\noonsiderations arising out 0£ what appears to be the general scheme of the statute.\n\nSeveral of the powers conferred under our Constit•Jtion have been held to be subject to implied limitations though those powers arc expressed ift general terms or even iu bsolute terms. The amending power is one of he powers conferred under the Constitution whatever the nature of that power might be. [pp. 316, 317].\n\nIt is clear that the amending power under article 368 is also subject to in1plied H1nitations.\n\nThe contention that a power to amend the Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in the Bribery Commissioner v. Rana Singhe. [p. -318].\n\nThe position as rerds the ascertainment of basic clements or fundamental features of the Constitution can by no means be more difficult than the dif& .. culty of the legislature<; to determine before hand the constitutionality of legislation made under various other heads. Argument based on the difficulties likely to be faced by the legislatures arc of very little importance and they arc essentially arguments against judicial review. [p. 320].\n\nUnder our electoral system it is possible for a party to get two thir• majority in the two houses of Parliament even if that party does not get an absolute majority of votes cast at the election. That apart, when a party goes to election it presents to the electorate diverse programmes and holds out\n\n'Yarious promises.\n\nThe programmes presented or the promises held out need not necessarily include proposals for amending the Constitution.\n\nDuring the gcntral elections to Parliament in 1952, 1957, 1962 and 1967 no proposal to amend the Constitution appears to have been placed before the electorate, Even when proposals for an1C'ndment of the Constitution arc placed before the c:lcctoratc, as was done by the Congress party in 1971, the proposed amendments arc not usually placed before the electorate.\n\nUnder the!< circumstances the claim. that the electorate had given a mandate to the party to amend the Constttution in any particular manner is unjustified.\n\nFurther a parliamentary\n\n22 SUPREME COUaT REPORTS [1973] Supp. s.c.R.\n\ndemocracy like ours functions on the basis of the p:lity system.\n\nThe mechanics of the opcracion of the party system as well as the system of\n\nCabinc~ goyernmcnt are such that the people as a whole can have little 'ontrol in the matter of detailed law making. [p. 321].\n\n11ic assertion that either the majority of the members of Parliament or even two third member~ of Parliament can speak on behalf o! the nation has no basis in fact. Indeed it may he possible for the ruling party to carry through important constitutional amendments even atcr it has lost the confidence of the electorate. Members of the Lok Sabha arc elected for a !<rm of five years, 1'hc 1uling party and its members may or may not enjoy the confidence of the electorate throughout their time of office ; therefore it will not be correct to say that whenever Parliament amends the Constitution it must be held to have done it as desired by the people. [p. 321 ],\n\nThere is a further fallacy in the contention that whenever the Constitution is amended we should presume that the amendment in question was made ia\n\norder to adapt the Constitution to respond the growing needs of the people.\n\nBy using the amendment power it is theoretically possible for Parliament to extend its own life indefinitely a<: also to amend the Constitution in such a manner as to make it eiLlicr JcJr.lily or practically unamcndable ever afterwards.\n\nThe power which is capable of being used against the people themselves cannot he considered as a power exercised on behalf of the people or in their intere9t.\n\nOn a careful consideration of the various aspects of the case it must be held that Parliament has no power to abrogate or emasculate the basic clements or fundamental features of the Constitution such as the sovereignty of lndit, the democratic character of our polity, thC unity of the country and the essential\n\nfeatures of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society.\n\nThese limitation' arc only illustrative and not c:r:baustivc.\n\nDespite these limitations there can be no question that the amending power is a wide power and it reaches every article and every part of the Constitution to fulfil the obligations imposed on the State. It can also he used to reshape tl-.e Constitution within the limits mentioned earlier to make it an effective instrwncnt for social good.\n\nIt is not possible to agreewith the contention that in order to build J Welfare State, it is necessary to destroy some of the human freedoms. That, :it li.ny rate, is not the perspective of our Constitution.\n\nOur C\"nstitution envisages that the State should wihout delay make available to all the citizens of the Country the real benefits of those freedoms in a democratic way.\n\nHuman freedoms arc lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we, like every other democratic society, have topay to safeguard the dcmocradc values enshrined in our Constitution. Even the best of .fOVernments\n\narc -not averse to have 1nore and more power to carry out their plan and programmes which they rnay sincerely believe to be in public inf.crest, but freedom once lost is hardly regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty \\Vithout destruction of individual freedoms.\n\nIn the result the contention of the petitioners that the word 'amendment' in article 368 carries with it certain limitations and further that the power conferred under article 368 is subject to certain limitations must he upheld though that power is quite large. [p. 322].\n\nDSAVANANDA \"· XEIW.A (Hegae, J.) 23\n\nTh< 241h Am.,.Jm.,.t did not . ffllarc• th< amffldinc pow.r o/\n\nParliaent. It merely made erplicit what was implicit in th~ original ArticltJ Henee it is valid.\n\nSince Article 368 as it originally stood comprehended both power as well as procedu1e to :upend the Constitution, the change effected in the marginal note has no significance. The power though . described as constituent power still . continues to be: an amending poWer and therefore the content of power has not \\!ndergonc any~ change. 1 he power conferred under the original article being a lirnited powr to amend the Constitution the constituent power to amend Constitution rerred to in the amended article must also be held to carry with it tPe limitations to which that power was subjected earlier. The new words 'addition',\n\n1variation' or' 'repeal' only prescribe the modes or manner by which an 'amcndmct' may be madd, but they do not determine the scope of the power of 'amendment'.'. The provision in the new article that the President shall not withhold hi• as9Cllt cannot be said to have damaged or destroyed any basic elementS of the Constitution.\n\nIn fact under our Constitution the President is only a Constitutional head. He has to act on the advice of the cabinet.\n\nThere is no possibility of the Constitution being amended in opposition to the \"'ishes of the 'cabinet.\n\nAniclcs 13( 4) and 368(3) make explicit what was implicit. Parliament . cannot acquire a power which it otherwise doca not possess. Clause ( c) to the proviso of article 368 does not confer a power on Parliament to enlarge its own power. The : powCr to amend the Constitution as well as the ordinary procedure to an1end any part of the Constitution was contained in the main part of the Constitution. The proviso merely places further restrictions on the procedure to amend the Articles mentioned therein. Lim.itations on the power to amend the Constitution would operate even when Article 368 is amended. A lllnitcd\n\npower cannot be used to enlarge the same power into an absolute power.\n\nParliament .cannot do indirectly what it cannot do directly. }ience the mere claim in the statement of objects and reasons to certain power docs not go to show that Parliament either endorsed that claim or could have conferred on itself such a poWer.\n\nIt must be deemed to have exercised only such powe:r as it possses. It is he well accepted rule of construction that if a provision is:\n\nreasop.ably capable of two interpretations the court must accept that interpretation which makes the provision valid. If the power conferred on Parliament to, dmend the Constitution under article 368 as it originally stood is a limited power Parliainent cannct enlarge the scope of that power.\n\nFor these reasons the scope of Parliament's power to amend the Consti:. tu ti on fir any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368. [pp. 325, 326, 327].\n\nTh< newly substitut<d Articl< 31(2) Jo<S not d<stroy th< right tr1 property -b.cauS< (i) th< fixation of 'amount' und.r that articl< should haV< reasonabl< r.Zationship with th< valu< of th< prop'1'ty acquir.J qr r.quisi• tioned; (ii) the principlu laid down must b< rd<vant fqr th< purpose of arriving at th< 'amount' payabl< in mp.ct of th< propmy acquired or r.quisitioned; (iii) th< 'amount' fixed should not b< illusory; and (iv) the sam• should not b< fi\"d arbitrarily.\n\nThe question whether the 'amount' in quc.stion has been fixed arbitrarily or the <amc is illuso1Y or 1hc principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition as about the\n\n24 SUPREME coon REPOUS [1973] Supp. s.c.a.\n\naime when the property in question is acquired or requisitioned arc open to judicial review.\n\nBut it is no more open to the court to consider whether the 'amount' fixed or to be determined on the buis of the principles laid down i1 adequate, [p. 356].\n\nClause 2(b) of rh• 25rh Am•ndm<nt Act which incorporaud Arlie/, 31(2B) is also valid as it did not damage or destroy any essential features of th1 Conslitution. [p. 356].\n\nClause (3) of the 25th AmenJ.ment Act which introduced into the Constitution Artillt 31C is invalid for two reasons i.e. (i) it wa1 beyond the amending\n\npower of Parliament in so far as the amendment in question permits Jestruc tion of several basic elements or fundamental features of C.onititution and\n\n(ii) it tmpowtrs the Parliamept and the State Legislatives to pro tanto amend certain human freedoms guaranteed to the citizens by the exercise of their ordinary legislativ. pow.r. [p. 356].\n\nThe 29th Amendment Act is valid but the Acts which were brought into the IXth Schedule -by that amendment or any provision in any of them abrogate tany of the basic clements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. [p. 357].\n\nRay, /.-The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid.\n\nLaw in arlic/e 13(2) means laws .na;:UJ by th< Ugis/atatur< subject to the provj1ions cf the Constiturion.\n\nAn amendment of the Coostitution is not 'law' tvithin th• meaning of articl• 13(2). Amendment of the Constitution is Mn exercise of Constituent power.\n\nThe Constitutional mandate in article 368 does not admit or provide any tcopc fa< any conflict with any other article of the Constitutioo. The legality\n\nof an amendment is no more open to attack than of the Constitution itself.\n\nThe opening part of unamended article 368 tliz., \"[aJn amendment ot this constitution may be initiated\" and its concluding part before the proviso viz., \"''the Constitution shall stand _amended\" show clearly that the whole con,.\n\ntitution can be an1ended and no part of the Constitution is excluded freril .amendment.\n\nTherein lies the distinction between the Constitution and ordinary la\\v, The distinction lies in the criterion of validity.\n\nThe validity .of an ordinary law can be ques.tioned and when questioned it must be justified by reference to a higher-law. In the case of the constitution the validity is inhetent and lies within itself.\n\nThe constitution generates its own validity; the validity lie'! in the social fact of its acceptance by the community. There is a clear demarcation between ordinary law made in exercise of legisl3tivc power and constitutional law made in exercise of constituent power.\n\nThere~ fore, the power to amend a constitution is different from the power to amend ordinary law.\n\nThe distinction bct\\veen legislative power and constituent power is vital in a rigid or controlled constitution, because, it is that di,. tinction which brings in the doctrine that a law ultra vjres the constitution is void.\n\nWhen Parliament is engaged in the amending process it is not legislating; it is exercising a particular power which is sui generis lx-:stowed 11rn it by the amending clause in the Constitution.\n\nThus, an amendment\n\n<1 the Constitution under article 368 is constituent 'law' and not 'law' within the meaning of article 13(2) and law as defined in article (13)(3)(a).\n\nLaw in article 13(2) could only mean that law which needs validity from\n\n...\n\nDSAVANANDA \"· DlALA (Iav J.) 25\n\na higher source . and which can and ought to be regarded as invalid when it comes in conSict with higher law. It cannot possibly include a law which\n\nii self validating and which is never invalid. The distinctio~ ~cn constituent and legislative power is brought out by the feature in a r1g1d constitution that the amendment is by a different procedure than that by which ordinary law may be altered.\n\nThe amending power is therefore said to be a recreation of thC Constituent Assembly every time Parliament amends the Constitution in accordance with article 368. [pp. 364, 365; 374].\n\n\nMcCawley v. King, [1920] A.C. 691 and Bribery Commissioner v. Ped rick Ramuinghe, [1965] A.C. 172, held inapplicable.\n\nArticle 368 in the unamended form contains power as welJ as self executjng procedures which if followed by the p:escribed authorities, would result in an\n\n11mn1dment of the Constitution. The power to amend meant the fJOWer to add •lter or repral any provision of the Constitution. The power is unlimited so long di the re.iult is an amended .Constitution, that is to say, an organic instrfli.. rnent which /'1'0vides for the making, interpretation and implementation of Jaw. Under proviso (2) to the unamended article the power of amendment\n\ncould be increa.sed, There are no express or implied limiiations on the power· of amendment.\n\nThere is no distinction between essential and non-essen.titlt features of th~ ConstitutiOn to raise any impediment to the exerciie of th< power of amendment. The Preamble does not operate as a limitation on th1 power of amendment .\n\n., Amendment is a form of growth of the Constitution and the term 4amendment' connotes definite and formal processes of constitutional change.\n\nThese processes of change are the evolution of the Constitution.\n\nThe force of tradition and custom and judicial interpretation may all affect the organic structure of the State. The object of amendment is to sec that the constitution is prerved. Rebellion or revolution is an illegal channel of giving expression to change.\n\nThe \"consent of the governed\" is that each generation has a right to establish its own law.\n\nThe people expressed in the Preamble gave the Constitution including the power to amend the constitution to the bodies mentioned in article 368.\n\nThese bodies represent the people.\n\nIf a Coristitution provides the method of amendment that method alone is 1egal.\n\nAny method other than the method provided in article 368, as for example, ..convening constituent Assembly or Referendum would be revolutionarr.\n\nArticle 368 restricts only the procedure or the manner and form required for amendment but not the kind or character of the amendment that may be made.\n\nThe deliberative and restrictive processe) \"!nd 1 procedure. ensure a. change i~ the nstitution in an orderly fashion 1n order to give expression to social necessity and to give permanence to the Constitution .. [pp. 374, 392].\n\nThe xprssion \"amendment of this Constitution\" has a clear substan tive mcan1ng 1n te ontcxt of a written constitution and it means that any\n\nart of '!>~ Constitution can be amended by changing the samr. by variation, add1t1on or repeal.\n\nThe words\n\n4'amendmcnt .of this Constitution may be initiated\" and the words\n\n1'the Constitution shall -stand amended in ac~ cordancc with the terms of the Bill\" in article 368 indicate that the wurd\n\n26 SUPREME COURT REPORTS [1973] Supv. s.c.R.\n\namendment is used in an unambiguous and clear manner.\n\nThe word'\n\n1amcnd' is used in a Constitution to denote any kind of change. The various. amendments which have already been made to the Constitution indicate that. provisions have been added varied or repealed.\n\nThe meaning and sco.pe ot the amending power j,, in the object and necessity for amendment .tn a. \\Vrittcn Constitution i.e. for changing the Constitution in an or?crly manner and for making changes in the fundamental law or organic la\\V . t.o change the fundamental or basic principles in the Costitution. The background in which ar.ticlc 368 was enacted by the Constltutcnt Assembly has an important aspect on the meaning and scope of the power of amendment ..\n\nThe Constituent Assembly made no distinction between essential and nonessential features.\n\nNo one in the Constituent Assembly said that fundamental rights could not be amended.\n\nEven in the debate on. the Constitution: First Amendment Act no one doubted the power of Parliament to amend fundamental rights.\n\nProceedings in the Constituent Assembly show thatt the whole Constitution was . taken in broad perspective and the amendments suggested fell under three categories providing for simple majority, or tw0< thirds majority, or two-thirds majority and ratification by the States.\n\nThese different procedures were thought of to avoid rigidity.\n\nThe conclusion is that the meaning of the word 'amendment' is wide and not restricted •. If there arc no limitations on the power it is the whole power. [pp. 391, 396, 397~ 398].\n\nThere are no inherent or implied limitations on the amending povrer ..\n\nThe theory of inherent and implied limitations on the amending po\\\"lrer is based on the assumption of a narrow and restricted meaning of the word 'amendment' to suggest that the basic features or the essential features of the democratic republican character of the Constitution cannot be damaged and destroyed.\n\nThis Court in Berubari case f(1960) 3 S.C.R. 250] said that the Preamble has never been regarded as the source of any substantive power, because such po'vcrs are expressly granted in the body of the Constitution.\n\nThis Court said,\n\n11What is true about powers is equally true about prohibitions and limitations\".\n\nThe petitioner's contention that the Preamble is not a part of the Constitution, and so, being unalterable, other provisions which gave effect to the Preamble cannot be amended has no force.\n\nThe contention that the Preamble is not a part of the Constitution is nUllified by the petitioner's reference and reliance on the Preamble as the source of all inherent limitations. The Preamble in a Constitution refers to the frame of the Constitution at the time of the Preamble and, therefore, it can possibly have no relevance to the Constitucn.t power in the future when that constitution itself can be changed.\n\nThe position would be the same so far as the preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum, if so provided for in the Constitution.\n\nClear constitutional provisions nre imperative both on the legislatures and the cour:ts.\n\nWhere a constitutional provision is comprehensive in scoand leaves no room for interpretation the Court is without power to amend add to or detract from the constitutional provision or to create exceptions thereof bf implication \\Vhere the people express themselves in careful and measured terms in fran'l ing the Constitution and they leave little to implications, amendments or\n\nch.anes in the existing order or conditions cannot be left to inserting imltcations by. reference to the. preamble which is an expression of the intention at the time of the framing of the Constitution.\n\nThe power to arnend' the Constitution is, therefore, not restricted and controlled by the PrCamblc .. [pp. 401, 402, 404, 405].\n\nUSAVANANDA I/, KERALA (Ray, J.) 27\n\n\nA.C. 436 and Htnmng Jacobson v. Commonwtalth of Mauachusettus, 197 U.S. 11 referred to. ,\n\nThe theory of implied limitations is a subtle attempt t~ annihilate the a~ mativc power. of amendment.\n\nThe maxim expressum facit cessare tacztum 1• one of the salutary principles of statutory construction. [p. 406).\n\nR. v. Burah, 3 A.C. 889, Wtbb v. Outrim, [1907] A.C. 89, Fielding v., Thomas, [1896) A.C. 66, Whittman v. Sad/tr, [1910] A.C. 514, referred to.\n\nThe entire approach of the pcthioncr to the power of amcdcnt . contained in article 368 ignores the fact that the object of the Const1tut1on tS , tc> provide £Or the organs of state like the judicature, legislature and the cxecut:ivc for the governance of the Country. Great and wide powers arc conferred , for\n\nthe governance by great sovereign countries and such powers cannot be withheld on ihc ground that they may be used externally or oppressively. \\\".ell settled principles of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social concepts indcpcn• dcntly of the language of the constitution to be interpreted. [pp. 406, 407].\n\nDttp Chand v. Statt of Uttar Pradtth, [1959) Supp. 2 S.C.R. 8, Quun v.\n\nBurah, [1887] 5 I.A. 179, A11ornty Gtntral for Ontario v. Attorn•y Gtntral for Canada, [1912] A.C. 571, Gopalan Cm, [1950] S.C.R. 88, Kuh•an M•dha••~ Menon v. State of Bombay, [ 1951 J S.C.R. 228 and Bmoari Lal Sharm• case, 72 I.A. 57, rcfcfrcd to.\n\nAll provisions, 0£ the Constitution arc essential and no distinction can IJe. m<!dc between essential and non-essential features from the point of view of amendment unless the makers of Constitution make it expressly clear in the Constitution itself.\n\nThe theory of implied and inherent limitation!! cannot be allowed to act as a boa constrictor to the clear and unambiguou!I power af amendment. When certain restrictions arc imposed in article 368 it is not in tended that other undefined restrictions should be imposed by implication. The provisions Of the Constitution, in the Hght of historical background and special problems of the Country will show that no provision can be considered non essential.\n\nThe character of the provisions which are , amendable under the\n\nrovisq to article 368 itself shows that the petitioner's submission that cssen tzal features arc unamcndablc is a baseless vision. To find out essential or non-essential features is an eXercise in irqponderables. If there are no indicationr in the Constitution as to what the essential features arc, the task of amend mcnt of the Constitution becomes an unpredictable and indeterminate task.\n\nThere must be an objective standard by which it can be predicted as to what is essential and what is not csseniial. If Parliament cannot judge these features Parliament cannot amend the Constitution, [pp. 407, 408, 409, 410].\n\nThere is no foundation for the analogy that just as Jucigcs test reason ablcncss in law the judicial mind will find out the essential features on the test of reasonableness.\n\nReasonableness in law is treated as an objective criterion.\n\n28 SUPREME COUJ.T REPOP.TS ( 1973) Supp. S.CJl,\n\nhccausc reason inheres in man as rational being.\n\nThe crucial point i1 that in_ contradistinction to the American Constitution where rights arc couched in wick j,?encral terms leaving it to the Courts to evolve necessary limitations, our Constitution limited it by precise words of limitation. [p. 410].\n\nGopalan case, referred to\n\nWhen article 368 speaks of changes in the provisions of the Constitution/ as arc set out in els. (a) to {d) of the proviso it is manifest that the makers .. of the Constitution expressed their intention with unerring accuracy that fca~· lures which can broadly be described as federal features, and from that point of view essential features, could be amended. The proviso confers that_ power with relation to the judiciary, die executive and the legislature, none of which could be said to be non-essential.\n\nThe contention about unamendability of essential features do not take into consideration that the extent and character oi any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under article 368 and as representatives of the people in a democracy and it is not the function of the courts to make any such determination. (pp. 411, 412].\n\nThe 24th amendnlent made explicit what the judgment in Shankari Prasad and the majority judgment in Sajja• Singh and the dissenting judgment in Golak Nath said, namely, that Parliament has the cons'tituent power to amend the Constitution.\n\nCertain obscrvatious in Golaknath raiScd a doubt as to the meaning of the word 'amendment'. The 24th amndment has expressly clarified that doubt. [p. 413]. .\n\nArticle 368 in the unamended term contained power as well as self execut ing procedures which if followed by the prescribed authorities would result in an amendment of the constitution. The ··-words\n\n11Constitution shall stand amended\" in article 368 will exclude a simple repeal, that is, without substituting anything in place of the repealed Constitution.\n\nAn amendment of the Constitution is an amendment of some thing which provides a system according to which a state or a nation is governed. {p. 414].\n\nAn amendment of the Constitution is to make fundamental changes in the Constitution.\n\nFundamental or basic principles can be changed.\n\nHowever radical the change the amendment must provide for the mode in which the:: state is constituted or organised.\n\nThe. power of amendment is unlimited so long as te resul~ is an amended ontitution, tat is to say, an organic instrun1ent '-'1h1ch pro.vides for the making interpretation and implemen_tation of law. [p. 415].\n\nThe question whether under proviso ( e} to the unamended article 368 the power of amendment could be increased has to be answered in the affirmative.\n\nFirst, under article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other article of the Constitution can be removed.\n\nSecondly, judicial decisions show that by amending the article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original article.\n\nThirdly, the power to a.mend the amending power must include the power to add, alter or l'!Cpcal any part of that article and there is no reason why the addition cannot confer a power of amendment which the authorities named in article 368 did not possess. [pp. J!l5, '416].\n\nRyan's case, [1935] Ir. Rep. 170 and Ranasinghe's case, [1965] A.C. 172, f'eferred to.\n\nKESAVANANDA ti. lillALA (Rily, }.) 29\n\nThe contention that the people reserved the power to themselves 'to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by refrcndum is without merit.\n\nIf essential features could be amended by the people the very fact that the Constituent Assembly did not include referendumas one of the methods of amendments and the fact that the Constitution -makers excluded no part of the Constitution from amendment establishes that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for the purpose of amendment that would be extra-constitutional or revolutionary. The amending body represents the will of the people. Therefore as long as article 368 may be amended under proviso ( e) any amendment of the Constitution by recourse to referendum would be revolutionary.\n\nThe concept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will th.rough their representatives elected by them at the general election as. the amending body prescribed by the Constitution. [p. 418].\n\nTJaerc is intrinsic evidence in the provisions of Part III itself that our Constitution docs not adopt the theory that fundamental rights arc natural right> or moral rights which every human being is at all times to have. The basic concept of fundamental right is a social one and it has a social functiona These rights arc conferred by the Constitution. The nature of the restrictions. on fmdamcntal rights shows that there is nothing natu.ral about those rights.\n\nThe Constitution is the higher law and it attains a form which makes possible the attribution to it -of an entirely new set of validity, the validity of a statute emanating from the soverign people.\n\nInvested with statutory form and implemented by judicial review the higher law becomes juristically the n1ost fruitful foe the people. [p. 419, 421].\n\nBASheshar Nath v. CJ.'f., Delh~ [1959] Supp. I S.C.R: 528, referred to.\n\nIf the power of amendil)ent of the Constitution is co-extensive with thepower of the judiciary to invalidate laws, the democratic pr0ttss anO the coordinate nature of the great departments of State arc maintained. The process harmonises with the theory of our Constitution that the three great departments of' State the legislature, the judiciary and the exo:; utive arc co-ordinate and none is superior to the other. If the power of amendment does not contain any limitation and if the power is denied by reading into the Constitution inherent limitations to. extinguish the validity of all amendments on the principle of csscn~I features of the Constitution which arc undefined and unttrmed, the Courts will have to lay down a new Constitution. The framers of the Constitution id. no~ put any limitation on the amending power because the end of a Constitu!lon IS the safety, the greatness and du~ well-being of a\n\npeople. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution •. [pp. 422, 423].\n\n'The doc!rine of ronscquences has no application in ronstruing a grant of power ronfcrred by a Constitution. 1be argument that the O>nstitutioa of India could be subverted or dcstr?Ycd ., Uight have hortativc appeal but it is not \"!'!'portable by the a~ expcflcncc in our ntry. The two basic postulates ID democracy are faith ID human reason and faith in human nature. There is no hi11hcr faith than faith in the aClllOCrltic process. Bctwccn 1951 when this Court rcc.opiicd in Shinklri PNJllJ unlimit<d power of. ainendment till\n\n30 SUPREME COURT REPORTS (1973] Supp. S.C.ll.\n\n.Golaknath decision in 1967 the normal democratic process functicd .; ts provided by the Constitution.\n\nIn considering a grt of power the wides~ meaning should be given to the words of the power 1Il order to effc_ctuate 1t fully.\n\nThe two exceptions to this rule are : first, in order to reconolc powers cx- , c:lusively conferred on different legislatures, a narrower meaning ca~ be gven .to one of the powers in order that both may operate as fully a.t is possible.\n\nSecond, technical terms must be given their technical meaning even thoug? it is narrower than the ordinary or popular meaning.\n\nThe theory of conscquen- . ce:.: i! misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies arc included in the theory of consc.qucnccs.\n\nIf power is conferred which is in clear and ambiguous language and docs not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by .considering the consequences of the exerciSC' of the power and by so reading down the power. The very :basis of parliamentary democracy is that the exercise of power is always subject to the popular will and control. The theory of implied and inherent lirnita tions is a repudiation of this democratic process. [pp. ~24, 425, 426].\n\nVacher & Sons v. London Soci.iy of Composirors, [1913] A.C. 107, C. P. & Berar case, [1938] F.C.R. 18, Province of Madras v. Governor-General, 72 I.A. 93, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., [1959] S.C.R. 379, Attorney General for Ontario v. AttC\"'ney General for Dominions, [1912] A.C. 571, Bank of Toronto v. Lambe [1887] 12 A.C. 575, Bihar Land Reforms case, [1952] S.C.R. 889, Grundt case, [1948] Ch. 145, Rori v. lllison,\n\n[1930] A.C. l, Demscl/e Howard v. I/Unoi1 C1'11tral Rail Road Co., 207 U.S. 463, Lochner v. New York, 198 U.S. 45; 49 L.Ed. 937, referred to.\n\nThe amending provisions in the Constitutions of the United States, Canada, Australia, Ireland and Ceylon and judicial decisions on the power -of amend ment in those Countries do not lend support to the submissi.ons that a restricted meaning should be attributed to the word 'amendmcne and that implied and inherent limitations should be read into the meaning and power of amend ment. [p. 426].\n\nRhoile Island v, Palmer, 253 U.S. 350; 64 1. Ed. 947, Hawke v. Smith, 253 U.S. 221, Lesser v. Garnett, 258 U.S. 130, United States v. Sprague, 222 U.S.\n\n716, referrd to.\n\nInitiative and Referendum case, [1919] A.C. 935, Switzman v. Elbing, 1957 Canada La_; v. Reports 285, Rer v. Hess [1949] 4 Dominion Law Reports 199, Saumur v. City of Quebec and Attorney G1'11cral of Quebec, [1953] D.L.R. 641, Chabot v. School Commissioners of La.morandiere and Attorney General for Quebec, [1958] 12 D.L.R. 796, Hodge v. Queen, 9 App. Cas. 117, Re Alberta Legislation, [1938]. 2 D.L.R. 81, Taylor v. Attorney General of Queensland, 23 C.L.R. 457, Victoria v. Commanwealth, 45 Australian Law Journal 251 Amalgamated Society of Engineers v. Adelaide Steamship Co. ftd., [1920] 2S C.L.R. 129, Moore If'\" Ors. v. Attorney General for the Irish Free State & ()rs,, Jl935] A.C. 484, Liyanage v. Queen [1967] l A.C., 259, Kariapur case, [1968] A.C.\n\n71~, Ranasinghe cse, [.1965] A.C. 172, lbrclebbe case, [1964] A.C. 900, ex\n\nplamed and held mapphcable. ·\n\nThe word \"amount\" in article 31(2) after the Twenty Fifth Ame\"dmcnt means sum. of money. The, prin_ciple which tnay. he acted .upon Ir; the legi~ lature tn fix•nt t/Je amou'lft m11y include considerations of social juitice. f11r1,\n\nKESAVANANDA V. KERALA (Ray, ).) 31\n\nill and Part JV of the Constitution touch and modify each other.\n\nThe ade- -quacy of amo#nt fixed on the principles specified or the manner as. to hocv _such amount is to be given otherwise than in cash -:annot be the sub1ect mutter .of iudicial review-Article 31(2) is self contained and articles 31(2) and 19(1) (f) are mutually exclusive-Article 31(2) is to be read with articles 31A. -31B and 31C-Article 31C is an application of the princJ'ples underlying articls\n\n31(4) and 31(6) and 31A to the sphere of industry-The article creates a.legis- J11tive field with reference to the object of legislation. In removing restnctwns Of Part Ill in respect of a latv undt-r article 31C there is no delegation of any power to amend the Constitution-Courts can go_ into th~ gestion_ '!\"hethr legislation containing a declaration has nexus tvtth the directive prinetples in .article 39(b) and (c).\n\nThe framers of the Constitution envisaged social structure which would .avoid the acquisitive economy of private capitalism and the regimentation . of totalitarian State.\n\nThe Constitution -was framed with the object of effecting social revolution and the core of commitment to social revolution lies in Part Ill and Part IV of the Constitution. The directive principles are also fundamental and they can be effective only if they arc to prevail over the fundamental rights of a few in order to subscrve the common good and do not allow the economic system result in the common detriment.\n\nA fundamental right may be regarded as fundamental by one generation; it may be consi- -dered to be inconvenient limitation upon legislative power by another. Popular soYcreignty means that the interest which prevails must be the interest of the mass of men.\n\nIf rights are built upon property those who have no property will have no rights.\n\nTherefore the state has to balance the interest of the individual with the int<rest of the society. [pp. 441, 445].\n\nThe word 'amount' in article 31(2) after the Twenty fifth Amendment is to be read in the entire cllocation of words. In article 31(2) the use of the word \"amount\" in conjunctiQn with payment in cash sho\\VS that a sun1 _ of money is being spoken of.\n\nThe quantum cannot be a matter of judicial review.\n\nIf the legislature docs not fix the amount but specifics the principles for determinig the amoun~ the relevancy of the principles cannot be irnpugned nor can the reasonableness of the principles be impeached. Any attempt to find out :as to v.hy the particular amount is fixed or how that amount has .been fixed by law will be examining the adequacy which is forbidden by the Constitutional m2.Ildate.\n\nThe quantum of the amount if directly fixed by the law and the principles for its quantification arc matters for legislative judgment. In fixing the amount the legislature will act On the . general nature of the legislative pD\\YCr. _ The principle which may be acted upon by the legislature , in fixing the -amount may include considerations of social justice.\n\nConsiderations of socl justice . will incl1J:dc the relevant directive priiiciple, particularly .under article 39(b) a.nd (c). Article 19(1~(£) is excluded from article 31(2) m order to m.ake article 31(2) self contained. The right to hold property ca.nnot_.o-cxi.st. with the rigt of e state to acquire property. That is why article 31(2) is to be read with articles 31A, 31B and 31C all the articles being under the h<ading \"Right to property\". [pp. +17, 448]. '\n\nThere w; is_ no flexibili~- of. social interest _in article 31(2) as it originally stood. Every , cncCpt of social. interest became .Irrelevant by the scope of. article n(2}. It is this miSthief which was sought to be remedied by the. 25th Amendmel)-t. Part III an.d IV of the' Constitution touch , arid modify each other~ They are l)t parallel to each other. Diflcrent legislation. will bring in different\n\nsocial printiples; ThC.C will not be permi,.il>le without social content operating\n\nSUPREME. COUll.T REPOKTS fl973J Supp, S.C.L\n\nin a Bexbl~ manner, That is why in the 25th Amendment article 31(2) is ded to ehmmate the concept of market value £or pr ty\n\n.,.L . den · d opcr wuu.:u 11 acqwrc oJ rcquis1t1onc . If compensation tncans an amount de•·· d · '- f social ti th 11 be =mme on prmc1pies o JUS ce ere WI general harmony between Parts Ill and JV, [p. 455].\n\nDissenting view in the Bank Nationalisation case, affinp.ed.\n\nF. N. Rana v. State of Gujarat, [1964} 5 S.C.R. 294 and S. N. Nantli v.\n\nState of West Bengal, A.LR. 1971 S.C. 961, referred to.\n\nThe pre.eminent feature of article 31C is that it protccu only law. Law in article 31C must have the same meaning as it bas in other articles, gene~ rally, namely, a statute passed by the legislature.\n\nThe article is inextricably bound up with article 39(b) and ( c) because the purpose and the phraseology in both the articles are essentially identical. Law contemplated in article 31C will operate on the ownership and control of the material resources of the com~ munity to be distributed as best, tcT subservc comrilon good. In order to decide whether a statute is within article 31C the Court may examine the nature and character of legislation and the matter dealt with as to whether there is any nexus of the law to the principles mentioned in articles 39(b) and. {c). If .it appears that there is no nexus between the legislation and the Objectives and principles mentioned in article 39(b) and (c), the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course. [pp. 450, 451, 452].\n\nThe moson for excepting Articles 14, 19 and 31 from article 31C is the same as in article 31A. The exclll9ion of article 14 is to evolve new principla of equality in the light of the directive principles. The exclusion of article 19 is on the footing that laws which ate to 1ive effect to directive principles will constitute reasonable restrictions on the individual's liberty. The exclusion of Article 31(2) is to introduce the consideration of aocial justice in the matter of. acquisition. Directive Principles arc not limited to agrarian rcfomu. Directiw Principles are necessary for the uplift and growth of industry in the Country. [p. 452].\n\nArticle 31C creates a legislative field with reference to the object of legislation. The article substantially operates in the same manner in the industrial sphere a• article 31A operates in the agrarian sphere. The problem. arc similar in nature though of di£!i, rent magnitude. The article is an application of the principles, underlying articles 31(4) and 31{6) and 31A to the sphere of industry [p. 453].\n\nJn removing restrictions of Part Ill in respect of a law under articl~ 31C there is no delegation of any power to amend the Constitution. M a .....tr of the 25th ; mendment the existing legislative field is £reed from the fetten of some provisions of Part III on the legislative power. A class of legislation can be identified and the legislative field can be carved out from the <>peratlolr of fundamental righu or. some of those can be excluded by a provision of the Constitution.\n\nThe entire process of of the legislative field from the orration of some of the articles relating to fundamental righu is the manda• o the Constitution. [pp. 453, 454 ].\n\nThe successive amendmenu of the Constitution mordy carried out the principle embodied in article 31 clauses ( 4) and ( 6) that i.pialioa designed to secure public good and to implement the difecti•et unolrt atticle 39(b) and ( c) •hould have priority over individual rights and cltal t1-fcrc fundamenr.i rights were to be suborcfm= to Oit'eCtlves Oii S- ,..U.,.. {p 4~}.\n\nXESAVANANDA .V. Ell!RALA 33\n\nThe <onclusivene,. of the declaration ini.oduccd by the Twenty-fifth Amendment in a law unda article 31C is to be appreciated in the entire context of article 31C. The declaration is for the purpose of excluding the process of evaluation of: legislation on a consideration of the virtues and defects with a View to seeing if the laws have led to the result intended. If aquestion arises as to whether a piece of legislation with such declaration has nexus with the directive principles in article 39(b) and (c), the Court can go into the question for the purpose of identification of the legislative measure on a consi~ deration of the scope and object and pith and substance of the legislation. [pp. 458, 459)\n\nState of 'West Bengal v. Bela Banerjee, [1954) S.C.R. 558, Dwarkadas Shrinivas v. Sholapur Spg. & W•g.'Co. Ltd .. [1954) S.C.R. 674, Babu BarkJa Thakur\n\nv. State of Bombay, [1961) I S.C.R. 128 and Smt, Somavanti l!t Ors. v. The State of Punjab, [1963) 2 S.C.R. 774, referred to.\n\nThe inclusion of Kera/a Act 35 of 1969 and the Kera/a Act 25 of 1971 in the Ninth Schedule by the Constitution Twenty Ninth Amendmrot u valid-Article 31B is independent of article 31A.\n\n(Mathew, )., concurring) : The validity of the Twentyninth Amendment lies within narrow compa9S. Article 31B has lfcn f<\"ld by this Court to be a valid amendment. It has also been held to be an inllependent provision. The rticle has no connection with article 31A and, therefore, the contention cannot be accepted that before the Acts can be included in the Ninth Schedule the requirements of article 31A arc to be complied with. [p. 460)\n\nJeeji' Bhoy v. Assistant Collectar, [1965). I S.C.R. 616 and Bihar Li.ntl Reforms ease, [1952) s, C.R. 889.\n\nJ•ganmohan Reddy, J.: The Constitution Twenty Fourth Amendment is valid. Section 2 of Constitution Twenty Fifth Amendment is valid. The new article 31C introduced by Constitution Twenty Fifth Amendment is .valid only if the words \"inconsistent with or takes away or\", the words\n\n\"Article 14'\" and the declaration portion are severed.\n\nThe Constitudon Twenty Ninth Amondment is valid. [pp. 555, 556)\n\nWhat the leading majority in Golaknath did not decide was whether article 368 it>Clf could be amended under the proviso of that article conferring a power to amend the whole constitution. \"The ratio of the decision in the Goltzknath case is that an amendment under article 368 is 'law' within the meaning of article 13(2) and tllat under Article 368, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III uf the Constitution. That question will , assume importance if this Court comes to the conclusion that Parliament cannot amend art. 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or amend article 13(2) making it subject to an amendment under article 368.\n\nIf such a power exists, the question whether an amendment in article 368 is a 'law' within the meaning of article 13(2} may not prima faci~ be of significance.\n\nThere arc, two aspects to this problem. First, whether 'law' in article 13(2} includes an amendment of the COnstitution under article 368; and secondly if this Court holds that 1aw' in article 13(2) does not include' an amendment under article 368, then the question would be, has the Constitution Twenty Fourth Amcndm.; nt, purported to exercise a power not granted under article 368; or, in other words, arc there any implied limitations to the amending power under Article 368. [pp. 462-'180]\n\n3-36 S.C. lndla/13\n\n34 SUPREME COURT REPO~TS [1973] Supp. s.c.R.\n\nOn the construction filaced on articles 12, 13 and other provisions of Part Ill\n\nnd a;, tile 36~, article 1~(2) does. not place an embargo on article 368. !Aw tn artzd~ 13(2) ts that wluch may be made by the ordinary legisla ttve organs. [p. 480 J\n\nArticle 13(2) does not place an embargo on article 368 for amending any rights in Part Ill. To limit the extent and ambit of the power under article 368 in which there is no reference to a law, by including within the ambit of the definition of law in article 13(3)(a) for purposes of article 13(2) an amendment effected under article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of article 13(2) applicable to it by mere implication when in respect of minor instruments they were careful enough to include them in the definition of 'law'.\n\nA consideration of the conspectus of the various rights in Part III when read with article 13(2) would\n\nprohibit the taking away or abridging of these sights by a law made by the Parliament, by the legislature of a State, or by executive action. This conclusion v1ill be substantiated if article 13(2) is read along with each of the articles in Patt Ill. The object of incorporating article 13(2) was to avoid its repetition in each of the articles conferring fundamental rights. Jn reading the articles in Part III with article 13(2) the words\n\n1law' 'in accordance with law' or 'authority of law' clearly indicate that 'law' in article 13(2) is that which may be made by the ordinary legislative organs. The assumption of Hidayatullah J. in Golaknath that the word 'State' in article 12 would mean all the agencies of the Govern\n\nment jointly or separately is not justified. The prohibition in Article 13(2) is against each of them acting separately. The framers of the Constitution distin guished the 'Constitution' from 'law' or 'laws' making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to mean only, ordinary l.egisla\n\ntive la\\v, while 'Constitution' means somCthing distinct from it. Article. 13(2) has .a purpose and that purpose is to emphasize the importance and the commanding position of the fundamental rights. (p. 480]\n\nThe Court, in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written Constitution is to be ascertained, should look into the proceedings and the relevant date including any speech which may throw light on ascertaining it. Unlike a statute, a Constitutio!1 is a working instrument of Government; it is drafted by people who wanted It to be a national instrument to subserve successive generations. The various stages of the Constituent Assembly proceedings, while considering the draft articles 8 and 304, corresponding to articles 13 and 368 respectively, woll:ld show tat attempts were made to introduce amendments to both these articles to danfy that the embargo in article 13(2) does not apply to an amendment. made under article 368. Besides, it would appear from the proviso to draft article 8. before it was deleted, if read with clause (2) of the a.rticle, as also from the note showing the purpose for which it was incorporated that . the law referred to therein was a legislative law. It could not by any. stretch of language be co-?s-- trUed as including an amendment under draft a.rttde ~04, bc; causc, the proviso was making the restriction in clause (2) of article 8 1nappltcable to the State from making any la~ for the removal. o~ any inequlity, ?ispari 1ty, isadvantac or discrimination arising out of any existing law. If State nd law have be given a particular meaning in the proviso the same mean.1ng has to be. riv.en to th'em in clause (2) and since the proviso, clearly envisages .a lcgis at.Ive law it furnishes the key to th~ interpretation ?f the _word law 1n cl. (2) of draft article 8 that it is also a legislative law that 1s therem referred. (pp. 475-480]\n\nltl!SAVANANDA fl, KEl!ALA 35\n\n(On view taken and having rzgard to the maJonty decision in Golaknath that the power of amendment is to be found in article 368 itself his Lordship did not consider it necessary to go into the question whether :he leading maiority in Golaknath was right in finding the power of amendment in the residuary entry 97 bf List I of Schedule VII]. [p. 480]\n\nSankoiri Prasad v. Urtian ff India & State of Bihar (1952] S.C.R. 89; Saijan Singh v. State of RajtMthan; [J96J] (1) S.C.R. 933, Gopalan v. State of Madras\n\n(1950 J S.C.R. 87 referred tO.\n\nThe word 'amendment' iq Att. 368 docs not include repeal. Parliament could amend Art. 368 and Art. 13 and also all the fundamental rights. Though\n\nthe power of amendment is wide, it is not wide enough to totally abrogate or cm3sculatc or damage any of the fundamental rights or the essential clements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Art. 368 expand irs power of amendment so as to confer on itself the power to repeal or abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution.\n\nThe Twenty fourth Amendment has not changed the nature anQ scope of the amending power as it existed before the Amendment. (pp. 497-512]\n\nThis Court has during the last over two decades forged an approach of its own and set out the rules applicable to the interpretation of the Contitution.\n\nThere is no constitutional matter which is not in some way or the other involved with political, social or economic questions and if the Constitution makers have vested in this Court a power of judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution this Court will not be deterred from discharging that duty merely because the validity or otherwise of the legislation will affect the political or social philosophy underlying it. The basic approach of this court has been and must always be, that the legislature has the exclusive power to determine the policy and to translate it into law, the constitutionality of which is to be presumed. In this regard the legislature, the executive, as well as the judiciary are bound by the paramount instrument. The bona fides of all the three of them has been the basic assumption and though all of them may be liable to error it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrun1ent. When Courts declare law they do not mortgage the future with intent to bind the interest of the unborn generations to come.\n\nThe Courts have a duty and h3.ve indeed the-.power to re-examine and restate the law vvithin the limits of its interpretative function in the fulness of the experience during \\Vhich it was in force so that it conforms with the socio-economic change and the jurisprudential outlook of that generation. The difficulty which foreign cases or even cases decid'ed within the Commonwealth, where the common Law forms the basis of the legal structure of that unit, is that they are more often than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we arc called upon to consider.\n\nThe problems which confront those courts in the background of the state of the society! the socia~ and. ccopomic set up, tI1C requirements of people with a totally different ethic, philosophy, temperament and outlook differentiate them from the problems. and out}ook which confront the courts in this country. It is not a case of shutting out hght where that could profitably enlighten and benefit us •. The concern is rather to safeguard against the possibility of being blinded by it. [pp. 4,85-4\"87]\n\n36 SUPREME COUllT REPGRTS [1973] Supp. s.c.11.\n\nIn re. The C•ntral Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18, Special Reference I of 1964 [1965] I S.C.R. 413, at 487 referred to.\n\nThe facts that the Preamble professed in unambiguous terms that it ;., the people of India who have adopted, enacted and \"given to themselves tht.\n\nConstitution\"; that the Constitution is being acted upon unquestioned for the last over twenty three years and every power and authority is purported . to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State legislatures in five general elections, make the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India. 0<1 this assumption no state need have unlimited powet\n\nand indeed in federal politics no such doctrine ;., sustainable. [p. 494) ·\n\nThe amending power is a facet of the Constituent power but not the whole of it. The power under article 368 after the amendment ;., still described as amending power.\n\nThe Twenty Fourth Amendment makes this explicit because it did not want a. doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in article 245 to 348 an.cl an amendment in terms of article 368, it should not be considered that both these are legislative law within the meaning Of art. 13(2). On the view taken that article 13(2) is confined only to the ordin\"l)' legislative laws and not one made under article 368, the addition of clause (1) to article 368 in so far as it declares that when Parliament exercises the power un4cr that provision, it exercises its ccinstitucnt poWer and makes u:plicit what was implicit.\n\nThe amendmeot, therefore, makes no change in the position which prevailed before the amendment. It is not DCCC\"'\"')' to consider the q11Cstion of the existence or non-existcnc.c of implied or inherent limitations, bcca\\lSC if the amending power is wide and plenary, those limitations can be ovC1ITiddcn as indeed the non-ob slant. clause in the amended clause (I) of article 368 was intended to subserve that <\"1d. What has ID be considered is whether the word tamendment' is wide enough tO' confer a plenitude Of power including the power to repeal or abrogate. The outstanding question, then is, what is e meaning of the word 'amendment' ?-whether it has wide or a restricted meaning, whether it includes repeal or revision and whether having regard to the other provisions of the Constitution or the c.ontext of the word 'amendment' in article 368 itself it has a restricted meaning, so as not to roofer a power to damage or destroy the essential features of the Constitution. If the word 'amendmeot' has a restricted meaning, has that power been eolargcd by the use of the word• \"amend by way of addition, variation or repeal\" or do dtcy mean the same u amendment ? If they arc wider than amendment, could Parliament in cxcrcioe of its amending power in article 368 enlarge that power I [pp. 495, 496]\n\nIt is necessary ID ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a worliing organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government, whcreunder individual rights of citizens, the duties 1Dwards the community which the State wa< enjoined to discharge the diffusion of legislativ< power between Parliament and State Legislatures\n\nand the provision for its amendment, etc, are provided tor. All tht:se. aspects were sought to be well balanced as in a ship built for fair weather as wcll as for foul, Thi• then will Ix: the proper approach •. The recognition of the trWsia that power corrupts and aoolutc power corrupts absolutely has been the wt.dam that made practical men of cicpcricnoe in not only drawing up a written constitution limiting power of the legiolativc organs hut in s\"UNnt to all citizens\n\nltESAVANANDA ti, KERALA 37\n\ncertain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of. power or abuse of it is \"\"\n\npotent, then one needs no elaborate Constitution, because, 11ll that is required is to make Parliament omnipotent and omni-sovereign. This the framers did not do and hence the question will be wheJier by an amendment under Art. 368 Parliament can effect a metamorphosis of power by making itself the supreme sovereign. It is against abuse of power that a constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. The question is whether there are any such in our constitution, and if so, whether they can be damaged or destroyed by an amending power. (pp. 506, 507]\n\nThe substitution of the word \"'amcndm.cnt' by the expression\n\n1amcnd by way of addition, variation or repeal' maK.Cs no difference as it bears the same meaning as the word \"amendment\". It is apparent from the meaning of the' word\n\n11amcndment\" that it does not include repeal or abrogation nor is it the same as revision. A repeal of a provision of. law is different from the repeal of the law itself. The Constitution itself has, in various articles, made a distinction between the amendment of the law and repeal of .the law. The word 'amendment' as used in article 368 does not connote a plcntitudc of power. The word, read with the other provisions, indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation\n\nwould imply. Art. 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in . clauses (a) to (e) have to be amended they have to be ratified by thP resolution of not less than one half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word 'amendment' that they can be changed without dcstroving them jusu the same way as the entire Constitution cannot be abrogated :ttid new Constitution substituted therefor. The amplitude of the power of amendment in Art. 368 cannot be enlarged by amending power under proviso ( e) to Art. 368. [pp. 508 to 512]\n\nGoiaknath v. State of Punjab (1967] 2 S.C.R. 762, Queen v. Burah, 1877-78 P.C. 179 referred to; Rhode Island v. Palmer (National Prohibition Case) 64\n\nL. ed. 946 explained.\n\nIf the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution .be repcabl and in . th~ place other provsion~ placed, v1hcrcby the entire structure of the Coosa.tun.on, the power rclanonsh1p inter se three Departments, the federal character of the tau;, \"?d the rights .of t.hc citizens vis-avis the State arc abrogated and new mstJ.tunons, power relationsh1ps and the fundamental features substituted therefor I Such an attempt would equally amount to abrogation of the Constitution, because any such , ev;; cise of the er\n\nwill merely !cave the husk and will .amount to the subsl:!tutton of an cnttrely new Constitution which it is not denied, cannot be done under art. 368. (p. 512]\n\nThe Preamble to the Constitution dcclareo the purposes and objectives which the Constitution is intended to subservc. The Preamble ill furnish a guide to the construction of the statute wh<rc the word~ are bius or elcavend where the words are unambiguous to aid a comtruetton which ~\n\n~O! to absurdity. W)icrc preamble cvcys a clcai; and definite d'J..i:e w:'~ , prevail over the cnact.tng words which are relaucly oblCUtC or \"! which fits the words are capable of more than one constrUCllOll, the constrUction &'I d the preamble may be preferred. In in re Beruhari Union ca~ court~ to refer to and consider the view that the p\"amble can be to\n\n38 SUPREME COURT :RE~ORTS [1973] Supp. s.c.R.\n\nthe nature, extent and d1~ applicatio~ of the pocrs or that the preamble can be resorted to prevent obY10UJ absurdity or to a direct overthrow of the intention expressed therein. [pp. 512 to 516]\n\n\nIf a Constitution is considered as a mechanism or an organism or a piece of Constitutional engineering it must have a structure or a composition or a base or a foundation. The clements of the basic structure arc indicated in the preamble and translated in the various provisions of the preamble. There is nothing vague or unasccrtainablc in the preamble. The edifice of our constitution is built-upcm and stands on several props; remove any one of them, the Constitution collapses.\n\nThese are: (I) Sovereign Democratic Republic; (2) Justice social economic and political; (3) liberty of thought expression, faith, belief and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life t.o the people of India which the Constitution guarantees. If any of these clcrncnts is withdrawn the structure wil not survive and it will not be the same constitution nor can it maintain its identity if something quite different is substitutc:d in iu place which the sovereign will of the people alone can do. What then are the essential features or the basic elcmcnu comprising t™' structure of the constitution need not be considered in detail as thclc will fall for consideration in any concrete case where they arc said to have been abrogated and made nion-cxistcnt. A sovereign democratic republic, parliamcn~ tary democracy and the three organs of the State certainly constitute the basic structure. In the sense in which Sovereign Democratic Republic is understood it cannot be said that the structure of the Constitution as an organic instrument establishing Sovereign Democratic Republic as envisaged in the preamble will remain the same if Part lII and IV or either of them are totally abrogated. [pp. 517, 518]\n\nT~ object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State Poljcy is to establish a welfare state where there is econon1ic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the courts to interpret Constitution and the laws to further the Directive Principles which under article 37 are fundamental in the governance of the country. To say that the Directive Principles give a directive to take away fundamental rights seems a contradiction in terms. There is no rationale in the argument that the Direstive Principles can only be given cfftct to if fundamental righu arc abrogated. The interest cf the community and of the •ociety can be adjusted without abrogating, damaging, emasculating or destroying the fundamental rights in such a way 11 to amo\\lnt\n\nto abrogation of these righu. The guarantee in clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitulfon unless permitted by the Constitution itself. When clause 4 of Article 32 does 11ot even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated.\n\nThis pivotal feature of the Fundunental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that tht existence of a remedy would be meaningless without the rigku. [pp. 518-520]\n\nKESAVANANDA I/. x.nALA. 39\n\nSectir>n 2 of Twenty Fifth Amendment ;, •a/id\n\nEver since the Constitution (Fourth Amendment) Act this Court hat con• sistendy held that where what i' given in lieu of expropriating property of a citiun is illusory, arbitrary, or cannot be regarded as compcnation, and bears no reasonable relation to the property acquired, the Coun can go into it, and, secondly, where principles arc Jixed for determining the compensation, it can examine the quostion whtrhet they arc relevant to the oubject-matter nf the acquiaition. Tlic position has not in any way been alfcctcd by the amendment b1 merely mbstituting the word 'amount' for 'compensation'. If the amount is\n\nillusory or arbitrary and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value nf the property acquired, the Court is not precluded from aamining it. The legisla~, even in cases where it Jixci an amount for the acquisition or requisition of a property, must be pre sumcd to have fixed it on some basis, or applied some criteria or principles to detenninc the amount so fixed, and, therefore, where the law is challenged on .the ground of arbitrariness, illusoriness or of having been based on irrelevant\n\nprinciples or any other ground that may be open to challenge by an expropriated\n\nowner, the Court will have to go into these questions; this will be so even in\n\nrespect to the manner of payment. [pp. 523, 524 J\n\nClause (2B) provides that \"nothing in sub.clause (f) of clause (1) of article 19 shall affect any ouch law as is referred to clause (2)\"; Docs this mean that the fundamental riglit to reasonable restriction of ploccdural nature under article 19(l)(f) available is abrogated• or dcstroycdl The answer to this would depend upon what is the meaning to be given to the word \"affect\". Two constructions are possible; one is that article 19(1)(f) will not be available at all to an expropriated owner under a law ol acquisition made under article 31(2), secondly cl. (2B) is intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under article 19(1)(£).\n\nThe second construction is more in consonance with the amendment, because what the amendment provides for is that that article 19(1)(£) shall not affect any such law and this would imply that the bar against the application of article 19(l)(f) to ouch a Jaw may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amc11dmcnt cannot totally abrogate a fundamental right, it can only be read bv the adoption of the doctrine of \"sevcrability in application\" and accordingly clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19{l)(f). That apart there is nothing in cl. (2B) to prohibit principles of natural justice which arc part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property' is affected by a law. [pp. 524 to 526]\n\nR. C. Cooper v. Union of India, [1970) 3 S.C.R. 530, Si.u of W111 Bento/\n\nv. Mn. Bela Banerjee, [1954) 3 S.C.R. 558, P. 'Vajrau1lu Mudaliar\n\nv. Sp\"iol De['flly Collector, MadrGJ & Anr., [1965) 1 S.C.R. 614, Union of India v. Thi Mel41 Corpowion of Indio Lid., onil Anr. [1967] 1 S:C.R. 255, Sldlt of Guj11r111\n\n\nBoard of Wiirk1, 14 C.B. (N.S.) 180, referred to\n\nNew Art. 31C is only valid if the words. \"inconsi<tent with or takes away or\", the words\n\n11artide 1-t\" and the declaration portion \"and no law containing a\" decalaration that it is for giving effect! to \"such policy shall be called in question in any court\" on the gr:ound that it doc~ not give e~ to \"such\n\npolicy\" arc severed, u they arc scvcrabl~. What remains after severing can be\n\n40 SUPRE1'IE COURT REPORTS ( 1973 j Supp. S.CJl.\n\noperative and effective on the interpretation given .. to the applicability of Art !' . and 31, so as to enable laws made under Art. 31C to further the directives enshrined in Art. 39 (b) & (c). [p. 553]\n\nThe Directives under Art. 39(b) and (c) arc wide and indeterminate. It is !\"'ccssary to keep in nind the :\"'de field of governmental activity enjoined in article 39(b) and (c) m dctermmmg the racb of the means to achieve the ends and the impact of these means on the fundamental rights which article 31C affects, Though. the Cour~ have no function in the evaluation of the policies of the State or 1n dcterm1.n1ng whether they arc good or bad for the community, they have, however, in examining the legislative action taken by the state in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which state action has to be confined. [pp. 535, 536]\n\nArticle 31C has four elements: (i) it permits the legislature to make a law giving effect to article 39(b) and (c) incontistnll with any of the rights conferred by arts. 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to article 39(b) and Art. 39(c) tak, ing away any of the rights conferred by Arts. 14, 19 and 3); (iii) it permits the legislature to make a law giving effect to art. 39(b) and (c) abridging any of the rights conferred by articles 14, 19 and 31; and (iv) it prohibits the calling in question in any Court such a law, if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in clauses (b) and (c) of Art. 39, on the ground that it does not give effect to such a policy of the State.\n\nThe first clement would be u/trJJ vim the amending power conferred by article 368 if it compreh.., ds within it th'< damaging or dcJtruction of the fundamental rights. The second, namely, taking aw•y of the fundamental rights would be llhra vim the amending power, for, taking away of these fundamental rights is synonymous with destroying them. The third, namely, abridging of these rights is not the same thing as damaging and the validity will have to be examined and considered separately in respect of each of the fundamental rights.\n\nAn abridgement ceases to be an abridgement when it tends to af!cct the basic or\n\nessential content of the right and reduces it to a mere right only in name and in such a case it would be ultra vires the power under article 368. In so far as article 31C authorises or permits abridgement of the rights conferred by article 19 it would be intra vires the amending power as thereby damaging or emasculating of these rights is not authorised. (pp. 537, 53&]\n\nThe guarantee of equality in article 14 has ina>rporated the principle of 'liberty' and 'equality' embodied in the Preamble to the Constitution. Two con cepts are inherent in this guarantee, one, of 'equality before the law', a negative one, and the other, equal protection of the laws, a positive one. The i.mpoct of the negative content on the positive aspect has not so far been clearly diicetned in the decisions of this Court which has been mostly concerned with the pooitiV1'\n\nupect. [pp. 538, 539]\n\nThe lifting of the embargo of Art. 14 on any law made by. Parliament or the ugislaturc of a State under Art. 31C would abrogate that right aler.\n\nIt may be that the objective of article 39(b) and (c) may form a basis of classification depending on the nature of the !aw1 the for which it was enacted and the impact wliich it has on the rightl of ciazen; but the right to equality before the law and equal protec:tion of laws in article 14 cannot be disembowelled by classification. In so far as the abric!Fncnt of the right con fierred by article 14 is concerned it would be \"\"'- ,,;,.,, for the reason that • mere violation of this right amounts to taking away ot damagini the right. It is clear that the very nature of the objectiva in article 39 (b} and (c) is mch\n\nltESAVANANDA V, KJ!llALA 41\n\n\"1-t ltticle 14 ii in•pplicable. The only purpooe which the exclusion of article\n\n14. will serve would be to facilittte arbitrariness, inequality in distribution or to eiiable the conforment of patronage. The right under article 14 will only be\n\navtilable to the .P\"rson or clHs of persons who would be entitled to receive 'the benefiu of dutribution under the law. In fact the availability of article 14\n\nin respect of ltws under trticle 31C would ensure 'distributive justice' or -economic justice which without it would be thwarted. In this view of article\n\n31C vis+vis Azt. 14, tny tnalogy between article 31C and art. 31A which is •ough.t to be drtwn is milconceived, bectuse, under the latter provision the -exclusion of Art. 14 was necessary. to protect the subject-matter of legislation\n\npermissible thereunder in respec( of compensation payable to the expropriated owner. Further, in article 31A the exclusioh of art. 14 was confined only to .acquisition etc. of the property and not to the distribution aspect which is not the subject-matter of that article, whereas, the exclusion of art. 14 affects distri- 'bution which is the subject-matter of article 39(b) and (c). It cannot be presumed that Parliament by exercising its amending power under art. 368 intended to confer a right on Parliament and the legislatures of the states to discriminate persons similarly situated or deprive them 0£ equal protection of laws. The objectives sought '-<> be achieved under article 39(b) and (c) can be achieved even if th-. wotds \"article 14\" is severed. [pp. 540 to 544]\n\nThe law under article 31C will only operate on\n\n11matcrial resources\" \"concen tration of wealth\" and \"means of production\", therefore, the rights i~ article\n\n19(1)(•) to (e) would have no relevance and arc inapplicable. [p. 549]\n\nIn so far as article 31(2) is concerned section 2 of the Twenty Fifth Amendment Act has already abridged the right conttined in articles 31(2) and a further abridgement of this right authorised by article 31C may trnount in a given case to the destruction or abrogation of that right and it may then have to be considered in each c;:asc whether a particular law provides for such an\n\nmount as would constitute an abrogation or the emasculation of the right under article 31(2) as it stood before the Constitution (Twenty Fifth) Amendment.\n\nIPP 549, 550]\n\n[On the fourth element his lordship agreed with the reasoning and conclusion of Khanna ). in so far it related only to the severence of the part relating to the d\":laration.] [p. 550]\n\n\nThe first part of article 31 C may be held to be intra 111'rts the amending power only if those portions of the article which makes it ultra viret the amend illg power are severed from the rest of it. The portions that may h; ave to be tevered arc the words\n\n0is inconsiJtcnt with or takes away, or 0 and the words Marticle I 4\" and part dealing with declaration by reason of. which judicial review k eK<hded. The oeverability of these portions is permissible in view of the\n\n42 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.\n\nprinciples laid down by this Court in R. M. D. Chamerbaugwalla v. Usion of lnd1a. In the result, on the construction of article 31C after severing the portions' indicated, s. 3 of Twenty Fifth Amendment is valid. [p. 550]\n\n\nState of Madhya Pradesh v. Ranojirao Shinde & Anr., [1968) 3 S.C.R. 489, distinguished.\n\n[On the view taken, his lordship did not find it necessary to consider the question whether article 31C delegates the power of amendment to the State Legislatures and Parliament.] [p. 537]\n\nThe Constitution (Twenty Ninth) Amendment is valid.\n\nBut whether the Acts which were brought into the Ninth Schedule by that\n\namcdmcnt or any provision in any of them abrogate ay of the basic clements or essential features of the Constitution will have to be examined when the validity of those acts is gone into. Further, the contention that article 31B is intimately connected with article 31A is unacceptable and must be rejected. [pp. 554, 556]\n\nPalekar, /. The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 632 J\n\nThe power and procedure for amendment of the C<>nstitution were contained in the unamended Article 368. The proceu which bring about the result of amendment of the Constitution is the exercise of Constituent power.\n\n[pp. 561, 566, 632]\n\nThe Constitution is n:ot an indigenous product. When our Constitution was framed in 1949 the framers of the Constitution knew that there were two COil trastcd types of democratic Constifutions in vogue in the world-one the\n\n1Bezible' type which could he amended by the ordinary procedure governing the making of a law and the other the 'rigid' type which could be so amended but required a special procedure -for its amcniJment, From the special provision made in article 368 for the arri, e:ndment of the Constitution it follows that our Constitution is a rigid or controlled constitution because the Constituent Assembly has 'left a special direction a1s to how the Constitution is to be amended'. In view of article 368 when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution. The Constitution of India gives specine powers of ordinary, legislation to the Parliament and the State legislatures In respect of well demarcated subjects. Since the result of following the special procedure under article 368 is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in th~ , task of amending the Constitution. Therefore, when the Parliament and the State legislatures function in accordance with. article 368 with a view to amend the Constitution, they exercise constituent power as dis- tinct from , their , ordinary legislative power under Articles 245 to 248. Article 3~8 is not entirely procedural, The clear mandate that on the procedure being followed\n\n,,,\n\nIU!SAVANANDA v. KEllALA (PaJekar, J.) 4~\n\nthe proposed amendment shall become part of the Constitution is the substantivcpart of the article. Then:fore, the special power to amend the Constitution is too\n\nbe sought in article 368 only and not elsewhere. [pp. 558 to 563]\n\nAutomobile Tra1\"port Ltd. v. State of Roiasthan, [1963) 1 S.C.R. 491 and Mc Cawley v. The King, 1920 A.C. 691, referred to. '\"\n\n[The view of the leading majority in Golai{nath that the power to amend the Constitution is to be found in article 248 read with the entry 97 List I held incorrect.) [pp. 565, 566)\n\nBy describing the power as 'Sovereign' Constituent power it is not the intcn tion to declare that legal sovereignty lies in this or that body. The word 'sovereign' is used as a convenient qualitative description of the power to high light its superiority over other powers conferred under the Constitution. The word, therefore, simply stands as a description of a power which is superior to every one of the .other powers granted to its instrumentalities by the Cons~ tution. The amplitude and effectiveness of the constituent power arc not impaired because it is exercised by this or that representative body or by the people in a referendum. And, the power to amend does not become more or less in content according to the nature of the body which makes the amendment. The people thcnisclvcs having withdrawn from the process of amendment and entrusted the task to the Parliament, instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of a convention or a Constituent Assembly, had that course been permitted by the Constitution.\n\nThe raiton d'etre for making provision for the amendment of the Constitution is the need for orderly change. Between the two coordinatesJ namely, the need for orderly government and the demands for orderly change, boili in accordance with the Constitution., the makers of the Constitution provide for its amendment to the widest possible limit. Whichever way one looks at the amending power in a Constitution there can be hardly any doubt that the exercise of tliat power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. The meaning of the wotd 'amendment of the Constitution' cannot be less than ' 1amcndment\" by way of addition variation or repeal, of any provision of the Constitution which is the clarification of that expression accepted by the Constitution Twenty Fourth Amendment. [pp. 567 to 573)\n\nDodge v. Woolsey, (1866] 18 How 331 at 348, United States v. Sprague, 282 U.S. 716, Hawke v. Smith, 253 U.S. 223, British Coal Corporation v. The King, 1935, A.C. 500 and Edwards v. Attarney-Qeneral for Canada, 1930 A.C. 124, 136, referred to.\n\nThe grant of power under artitle 368 was plenary, unqualified and without any limitations except as to the special proceJure to be followed. [pp. 603, 604, 632]\n\n.. The range of a!\"edment was 'this Constitution' 'which meant all the provmons of the Constltutton. If any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally fonnd a place in or below article 368. When the people, through the Con•tituent Assembly, granted the power to amend, they made no reservations in favour of the 'people. When the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method they necessarily excluded CVCl'f other method of amending the Constitution. The grant of power under uticlc-\n\n44 SUPREME COURT REPORTS [1973) Supp. s.c.R.\n\n368 is plenary, unquaiified and without any limitations except as to the speeial procedure to be followed. All provisions in a Constitution must be conceded the\n\nsame character and it is not possible to say that one is more, important and the other is less important. If the object of a Constitution is orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether Bexible or rigid, must have the power to amend the Constitution to the same degree. The amending power in a rigid constitution may, therefore reach all provisions whether important or unimportant, essential .or non-essential. Ha\"Ving regard to the object of providing an amendment clause in a modern Constitution amendment must stand for alteration or change in its provisions. That thi~: was intended is clear from the wording of article 368. The proviso to the article clearly implies that an amendment under the article seeks to make a change in the provisions of the Constitution. Having regard to the importance of the tmcnding clause in our constitution an amendment contcm~ plates changes in the provisions of the constitution which are capable of being effected by adding, altering or repealing them, as found necessary from time to time. Thus, so far as: the wording of article 368 itself is conccrnC'd there is nothing in it which limits the power of amendment expressly or by necessary implication.\n\nConsequences of wrccklcss use of power are political in character with which the court is not <:onccrned.\n\nConsequences may be considered in fixing the scope and ambit of a power where the text of the statute creating the power is unclear or ambiguous, Where, it is clear and unambiguous courts have to implement the same without regard to consequences good or bad. just or unjust. [pp. 582 to 585]\n\nEdwards v. Lesueur, South Western Reporter Vol. 33, 1130, Livermore v.\n\nWaite, 102 Ca, 118, Er-parte Dillon, 262 Federal Reporter 563 decided in 1920, Dillon v. Gloss, 65 Law edn. 994. Er-parte Mrs, D. C. Kerby, 103 Or. 612. Sklte\n\nv. Cor, 8 Ark. 436, Downs v. City of Birmingham, 198-Southern Reporter, 231, Schneiderman v. United Skltes of Amef'ica, 87 Law ed. 1796, Rhode ls/and v.\n\nPalmef', 64 Law ed. 946, Ullmann v. United Skltes, 100 Law ed. 511, Whitehill\n\nv. Elkins, 19 Law ed. 2d. 228, State v. Fulton, 124 N.E. 172 and Vacher's case 1913 A.C. 107, referred to.\n\n• Article 13(2) did not operate as an erpress limikltion on the amending power. Amendment of th( Constitution is not 'law' within tAe munint .of artide 13. [pp. 591, 632] i\n\nThe Constitution or its amendment is neidier a law ln force within the meaning of article 13(1) continued under article 372(1) nor can it bC regarded as a 'law' made by the State within the meaning of article 13(2). The bat under article 13(2) is not merely against law but a law made by the State, The de6nition of the word 'state' includes all organs or agencie1 operating under the Constitution owing superior obligation to the Constitution. It would be, therefore,\n\nwrong to identify 'state' in article 13(2) with anything more than the instrumentl created or adopted by the Constitution and which are required to work in conformity with the Consti, tution. By its very definition a body or set of bodies .exercising sovereign Constituent power, whether in a 'Bexible' or in a 'cipf\n\nConstitution, is not a governmental organ owing supreme obli,-ti.on to the .Constitution. The body or bodies operate not under the Constitution but over\n\nthe Constitution. They do no~ while amending the Constitution, function u governmental organs and therefore cannot be regarded as the StallO for the put pose of Part III of the Constitution. If fudamental rights in Part , III were, !\"'\" amendable nothing would have been caner than to make a specific pnmnon about it i~ Part XX which dealt specifically with the subject ol amendment of the Constitution. [PP• 586 to 591]\n\nKESAVANANDA f). KERALA (Palekar, J.) 45\n\nSri Venkataramana v. The State of Mysore, [1958] S.C.R. 6115 and Rana Singhe's case, [1965] A.C. 172, referred to.\n\n[The decision of the majority in Golaknath that Constitution Amendment is 'law\" within the meaning of article 13(2) held incorrect.] [p. 597]\n\nThere were no implied or inherent limitations on the amending power under the unamended article 368 in .its operation Ot1er the fundamental nghts~ T/kre can be none after its amendment. [p. 632]\n\nTh~ Twenty Fourth Amendment docs no more than give effect ta PadiamCnt's acceptance of the view taken in Sank_ari Prasad's case, the majority in Sajjan \\Singh's case and the minority in Golak. Nat!l's c:asc with regard to_ the amen<llng power in relation to fundamental rights.\n\nIt is clarificatory of the orimnal atide 368.\n\nWhat was implicit in Article 368 is now made explicit and the, _csncc of Articles 368 is retained. Therefore there can be no objection to the Z4th Amendment on the ground that any essential feature of the C.ons\\itution . is affected. Since article 13(2) docs not control an amendment of the C:onstitun it follows that any an1endment of the Constitution cannot be challenged on that ground and that would be true not only of tht 24th Amendment but also the 25th Amendment and the 29th Amenoment.\n\nIt may appear as ry odd at while the framers of the Constitution did not think it necessary to expressty. exclude even one provision of the Constitution from being amended they still i/ltcnded that this Court as the guardian of the Constitution should make pas of it unamendable by implying limiu.tions on the amending powct\\ This Court cannot constitute itself a guardian against change constitutionalq. effccte<l. [pp. 598, 599]\n\nSo far as the right to prope:rty is concerned the Constitution in a.rticle 39(b) and (c) expressly declared ·\\ts determination, in the interest of common good, to break up concentration of\\lth and means of production in every form and to arrange for redistribution: , of ownership and control of the material resources of the community. If anything in the Constitution deserves to be called an essential feature this determination is one.\n\nThat is the Central issue in this case. In a real sense concentration of wealth in the form of agricultural lands was broken and community resources were distributed.\n\nArticle 31(4)(6) and article 31A clearly show that community interests were regarded as supreme and those articles were only a step in the implementation of the Directive Principles in article 39(b) and (c). The object of the 25th amendment is the same viz., implementation of article 39(b) and (c ).\n\nIn principle there is no difference in article 31A and the new article 31C inserted by the 25th Amendment. From the conclusion that the power of amendmenr I'Clnains unqualified by whomsoever it is exercised it .follows that there can be no implied or inherent limitations on the amending power. And, where\n\npower is granted to amend the amending power there is DQ limit to the extent this may be done. It may be curtailed or enlarged. Article 368 permits the amendment . of all the provisions of the Constitution expressly and if that power is to be cut down by something that is said in soriie other provision of the Constitution the latter must be clear and specific.· Where the tezt is clear apd unambiguous there can be no recourse to the context or the ochcme of the Act ; nor can the context or the scheme be utilised to makt ambiguous what is clear and unambiguous.\n\nThe word 'amendment' used in the contcJ:t of a Constitution is clear and unambiguous. [pp. 600 to 609J\n\nSUPREME COUllT REPOllTS [ 1973] Supp. s.c.11.\n\nState of Bihar v. Kameshwar Singh, (1952) S.C.R. 889, Rayn v. Lannox, 1935 Jrish Reports, 170, Moore v. Attorney General for the Irish Stai., 1935 A.C. 484, Warburton v. Loveland, [1831) II Dow & Clark, 480, Bttntky v.\n\nRoutherham, 1876-77, 4 Ch.D 588 (592), Reg v. Burah, [1878) 3 App. (a) 889, Attorney-GenerraZfor the Province of Ontario v. Attorney.General for Dominion of Canada [1912] App. Cas. 571, Webb v. Outrim [1907) A.C. 81, The Amalgamated Society of Engineers v. The Adelaide Steamship Company Limii.d and .oth\"\"s, 28 C.L.R.' 129, The Berubari Union and Exchange of Enclaves, [1960)\n\n(3) S.C.R. 250 and Secretary of State v. Maharajah of Bobbili, 43 Madras 529, 536 (P.C.), referred to.\n\nFundamental rights are not inalienable natural rights. Articles 13 and 32 -show that fundamental rights are rights which the people have 'conferred' upon themselves.\n\nEven the rights conferred arc not in absolute terms.\n\nThey arc hedged in and .restricted in the interest of the general public> public order, public 1norality, security of the State, and the like which show that social and political considerations are more import.ant in our organised society.\n\nThe core philosophy of the Constitution lies in social, economic and political justice.\n\nThe Directive Principles of State policy which the Constitution commands should be fundamental in the governance of the Country require the State. to direct its policy towards securing to tht: citizens adequate means of liveli~ hood. The mandate in article 39 is as importanc for the state aito maintain individual freedoms.\n\nIt is always a continuous endeavour of the State having the common good of the people at heart. So to harmonize the Directive Principles and the fundamental rights that so far as property rights arc .ccncerned, the unlirnited freedom to hold it would have to undergo an adjustn1ent to the demands of the State Policy dictated by the Directive Principles. The attribute of 'scaredness' of property vanishes in an egalitarian society.\n\nOnce this is accepted and deprivation and expropriation arc rcCog nised as inevitable in the interest of a better social organisation in which the reality of liberty and freedom can be more widely achieved the claim made , on behalf of property that it is an inmutable natural right loses force.\n\nNor is it correct to describe the fundan1ental rights, including the right to property, as rights reserved by the people to themselves. What the Constitution confer~ red was made revoc:i1ble, if necessary by the a1nendatory process. [pp. 593 to 596, 600 to 603]\n\nNo implied limitations c:, an be inferred. from the Preamble. The Preamble is a part of the Constitution and is amendable under article 368.\n\nThe subn1ission that the fundamental rights arc . ..an elaboration of the Preamble is an overstatement and a half truth. Most of the fundamental rights may be traced, to the principles of Liberty and Equality mentioned in the Preamble.\n\nBut whereas the concept~· of Liberty and Equality are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms arc not couched in absolute terms. They reflect the concepts of Liberty and Equality in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government. The Preamble read as a whole docs not contain the implication that in any genuine implementation of the Directive Principles a fundamental right will not suffer any diminution. Nor is there anything in the preamble to suggest that the power to amend the fundarncn!al right to property is cut down.\n\nThe Preamble, it is noW well settled, can neither increase nor decrease the power granted in plain and clear words in the enacting parts of a statute. [pp. 609 to 613)\n\nA Constitution is an organic instrument continuously growing in utility - and the question of its repeal never arises as long as orderly change is poasible.\n\nXESAVUANDA v. (Palekar, J.) 47\n\nIt is the nature and character Of the Constitution as a growing, organic, penna-\n\n11ent iovcrcign instrUmcnt of . government which exclude the repeal of the Constitution as a : wqolc and not the nature and character of the amending power. [p. 619]\n\nIf it is the Court that is to decide what arc the essential and nonessential provisions, what stable standard will guide the Court in deciding which provision is -sscntial and- which -is not essential. The difficulty assumes pttr proporti0n when an amendment is challenged on the ground that the core of an essential feature· is either damaged or destroyed.\n\nApart from the difficulty in determining where the 'core' of an 'essential feature' lies, fantastic Fults may follow . in working the Constitution.\n\nThe Court cannot be .mvitcd to determine the spirit of the Constitution. When concepts of social\n\nor economic jD; Sticc arc _ offered for our examination in theii interaction on .provisions rclatirig 'to right to property, mancrs traditionally left to legislative; .policy :and wisdom, we are bound to flounder 'in labyrinths to the .character of which we have ncnuflicicnt gilidcs.\" [pp. 620-022]\n\n. . . .On a conlideration therefore, of the nature of the amending power and , the unquali6ed mannel' in which it is given in article 368 of the Constitution .it is impossible to imply. any !imitations on the power to amend the fuda\n\nm:cntal . rights. Since there arc no limitations express or implied, on 'the amending power it must be conceded that all the amendments which are in\n\nqon must be deemed to be valid. The Court cannot question their policy 'or tll•ir wisdom. [p. 625]\n\n.. State of Bihizr v. Kameshwar Singh, [1952] S.C.R. 889, Ryan v. Lennox, '[193H Irish J?eports, 170, Moore v. Attorney General for the Irish Stat<,\n\n·[19~5, J1.C. 484, Warburton v. Loveland, [1831] II Dow & Clark, 480 Bentley\n\n~. ; Rptherha,,,, [1876-77] 4 Ch. D .. 588, 592, Reg v. Burah, [1878] 3 App. Cas .\n\n.-'.8~, . -Attorney.General for the Province of Ontano v. Attorney-Genal for the\n\nDominion of Canada, [1912] App. Cas. 571, Webb v, Outrim; [1907] A.C. 81, The Amalgamated Society of Engineers v. The Adelaide Steamship Company .:Limited rmd Ors., 28 C.L.R. 129, .The Berubari Union and Exchange 'of\n\n\nVictoria v; The Corn, monwealth, 45 A.L.J.R, 251, distinguished.\n\nDon John Francis Douglas Liyanage & Ors v.\n\nThe Queen, and Rana- ·.nng, he's case, [1965] A.C. 172, held inapplicable.\n\nSection of 2 of the Constitution Twenty Fifth Amendment Act is valid. [pp. 625, 626]\n\nA_n :'-mcndmt to the Constitution cannot become invalid because the\n\nnstutlon authnscs th~ legislatures to fix an 'amount' or to specify the principles .on, which t?e. amount' .is .to be detcrmind instead of fixing the . compcnsauon or spec1fy1ng the prmc1ples for determining 1compensation'. All that the amendment has done is to negative the interpretation put by this Court on t?e c:onept of copcnsation. Whether a particular law fixes an amount \\Vh1ch. ts illusory . or 1s otherwise a fraud on !X>Wer denying the fundamental nght to receive an amount specifically conferred by clause (2),\n\n48 SUPREME COURT REPORTS ( 1973) Supp. S.C.Jt,\n\nwill depend upon the law when made and is tested on the basis of clause (2).\n\nThe possibility of abuse of a power given by an amendment of the Constitution is not deterrn.inative of the validity of the amendment. The new clause 2R excluding the application of article 19(1)(£) to a I.aw referred\n\nIC> in clause (2) of article 31 is merely a restatement of the law laid down by thif Court after the Constitution came into force. [p. 626]\n\nBank of Toronto v. Lambe 1887, Vol. XII- Appeal Cases 575, 586-587 and Sitabati Debi & Anr. v. State of w .. ,, Bengal & Anr. (1967] 2 S.C.R. 949, referred to.\n\nArticle 3IC included by section 3 of the Constitution Twenty Fiftlt Amendment Act is valid.\n\n\\Vhat is saved by article 31C is a law i.e. a law made by a competent legislature and since r.he article comes under the specific heading 'Right to property' in Pan III the law must involve right to property.\n\nThe effect of the first part of article 31C is the same as if a proviso had been inserted\n\n1 below 2rticle 13(2) or each of the several articles 14, 19 and 31 excluding their application to the particular types of law mentioned in article 31C. If the law docs not genuinely purport to give effect to the specified directive principles it will not be secure against the challenge under articles 14, 19 and 31. [pp. 627, 628]\n\nArticle 31C docs not prevent judicial review.\n\nWhat the court will have to consider is whether it is a law which can reasonably be described as a law gi, ing effect to the policy of the state towards securing the aims of article- 39(b) or (c). That i~ an issue which is distinct from the other issue whether the law does not -give effect to the policy of the state towards securing the said aims.\n\nA law reasonably calculated toserve a particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue whicD is excluded from judicial review.\n\nIn that view of the true nature of article- 31C it cannot be said that the amendment is invalid. [pp. 629 to 631]\n\nBeautharanis v. lllinois 343 U.S . .250, Charles Russell v. The Queen, 188? (VUI) Appeal Cases 829 (838.840) and Attorney-General v. Queen. lns#rtmcr Co. 1878 (3) Appeal Cases, 1090, referred to.\n\nThe Constitution Twenty Ninth Ameodment Act is valid. [p. 632)\n\nThe argument that unless the Acts included in the Ninth Schedule rela ted to agrarian reforrns the protection of article 31B will not be availablehas been rejected by this Court previously.\n\nThe T\\vcnty Ninth Amendment is Ilot different from several similar amendments made previously by which statutes were added from time to time to the Ninth Schedule and whose validity has been upheld by this Court, [p. 632]\n\nN. B. feeieebhoy \"· Assistant Collector, Thana (1965] I S.C.R. 636, referred t<J.\n\nKhanna, /. : The Constitution Twenty Fourth Amendment -is valid. The amendment made in article 31(2) by the Constitution Twenty Fifth Amendment is valid. The first part of article 31C introduced by the Constitution Twenty Fifth Amendment is valid.\n\nThe second part of article 31C viz., :•and no\n\nh'1\\V containing a declaration that it is for giving effcc~ to such po!tcy 1hall be called in question in any court nn the ground that tt does not give effet to stich policy\" is invalid and therefore has to be struck down~ The Consn-- tution Twenty Ninth Amendment Act is valid. (pp. 759, 760]\n\nKESAVANAND+\\. ti. llRALA (Khllnna, J.) 49\n\nArticle . 368 before Constitution Trve.nty Fourth Amendment eonldio not only the procedure for the amendmeoJ of the Conttitution INt also confers the power of amending the Constitution. [p. 757]\n\nThe words in Article 368 \"The Constitution shall stand amended in accordance with the terms of the bill\" clearly indicate that the article provides not 1ncrcly the procedure for amending the Constitution but also contains the power to amend Article 368. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in a federal constitution, because, the power to amend the Constitution will also include the power to alter the distribution of subjects mentioned in different entries. Such a power cannot obviously be a legislative power.\n\nIrrespective of the source of power the words in Article 368. that \"the Constitution shall stand amended\" indicate that the process of making amendment prescribed in article 368 is a\n\n11elf-exccuting process.\n\nThe article shows that once the procedure prescribed in that article has been complied with the end product is the amendment of the Constitution. [pp. 646-648[\n\nThe word \"law\" in Artii:le 13(2) does not in<!lude an amendment of tb~ Constitution. [p. 758]\n\nAn amendment of the Constitution made in accolldance with Article 368 docs not constitute \"law\" for the purpose of article 13(2).\n\nThe word \"law\", although referred to in a .large number of other articles of the Constitu- 'tion, finds no mention in article 368. What follows as a result of the compliance with Article 368 is an amendment of the Constitution and not law in the ocnse of ordinary legislation. There is a clear distinction betw<cn statutory\n\nlaw made in exercise of legislative power and constitufional law made in curcise of _constituent power.\n\nA Constitution is a famdamcntal and basic law and provides the authority under which ordinary law is made.\n\nIf it had been the intention of the framers of the Constitution that the law in article 13 would also include constitutional law including laws relating to the amendment of the Constitution, it is not explained as to why they did not e>pressly so state in clause (a) of article 13(3). . The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution.\n\nIt is difficult to accede to the contention that even though the framers of the Constitution put no express limitation in Article 368 on the power to make amendment, they curtailed that power by\n\nimlica.tion under article, 13(2) .. In. order to find the true scope of article 13(2) m the context of 1ts possible unpact on the power of amendment it\n\nshould not be read in isolation but should be read along with article 368.\n\nThe rule of construction is to read the actual words used\n\n11not in vacuo but as occurring in a single complex instrument' ln whiCh one part may throw light on another\".\n\nA combined reading of article 13(2) and article 368 clearly points to the condusion that the cxtinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amcndary wer conferred by article 368.\n\nThe alleged conflict between ~~ articles ts apparent d ot real because the two provisions operate m different filds and deal w; th diflc.rct bjects. Article 368 is independent and self.ainta1ned. If there \" any ltm1ta11on on the power of amendment it must be found in article 368 itself which is the sole fountalli-hcad of power to amend, and not in other provisions dcaling with ordinary legislation. [pp. 655 to 660] Tiie United Pt'Ollin\"s v. Mn. Aliqa Begum & On [1940] 2 F.C.R. 110; /.,, us v. Commonwe.W. of Australia, [l9J6i >.£. 578, Rfemd to.\n\n4-36 S.C. India/73\n\n50 SUPREME COURT REPORTS [1973] Supp. s.c.L\n\nTiie pou1er of amendment undeir unamended article 368 does not inc/uje the power to abrogate the Constitution nor does it include the (JOwer zo alter the basic structure or frame-work of the Constitution.\n\nSubject to the retention of t/Je basic structure or frame-work of the Constitution the power of amendment is plen'11'y and includes within itself the power .to\n\namend the variou! articles of the Constitution, including those relating to fundamental rights as u1ell as those which may be said to relate to essential features. No part of a fundamental right can claim immunit1 from amendatoty process by being described as the essence ar core of that right.\n\nThe powerof amendment would also include within itself fhe power to add to alter or repeal the various articles. [pp. 758, 759]\n\nThere are no words in Article 368 to indicate that a limitation was intended on the power of making amendment of Part III with a view to take .away or abridge fundamental rights.\n\nThe words \"the Constitution shall stand amended\" plainly cover the various articles of the Constitution. It is\n\ndifficult in the face of those clear and unambiguous words to exclude from their ope_ration the articles relating to fundamental rights. It is an elemental rule of c.onstruction that while dealing with a Constitution every word is to be expounded in its plain obvious and cominonsense unless the context furnishes some ground to control, qualify or enlarge it and there li:annot be imposed upon the words any recondite meaning or any extraordinary gloss.\n\nIt has not yet been erected into a legal maxim of Constitutional construction that words are meant to conceal thoughts. It cannot be said that the framers <>f the Constitution deliberately used words which cloaked their real intention \\vhen it would have been so simple a matter to make the intention clear beyond any possibility' of doubt.\n\nThere is clear indication that the drafting Committee was conscious ef the need for having express provision regarding limitation on the power of amendment in case such limitation was desired.\n\nThis is clear from article 305 of the draft Constitution which immediately followed article 304 corresponding to article 368 of the Constitution as finally\n\ncloptcd. The speech of Dr. Ambcdkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution makes\n\nit clear that the divided the various articles of the Constitution into three .categories.\n\nThere was nothing in his speech to show that apart from the three categories of articles there was a fourth category of articles contained in Part III which was not amendable and as such could not be the subicct <if amendment.\n\nThe Constitution (First Amendment} Act, 1951, which abridged and amended certain fundamental rights contained in article 19, was\n\npassed by the provisional parliament which had also acted as the constituent assembly for the drafting of the O>nstitution.\n\nThe First Amendment is a contemporaneous practical aposition of the power of amendment under article 368.\n\nThe contemporaneous practical exposition furnished considerable d in resolving the doubt in construing the provision of the article. [pp. 648 to 653] Queen v. Buran, [1878] 3 Appeal Cam 889 and William Mcpheron v.\n\nRobbert R. Blac/r.er, 146 U.S. !. referred to.\n\nThis Court has now accepted the view in its decisions since Golak Natli'l <ase that the speeches made in the Constituent Assembly can be r; c£errcd to :while dealing with the provisions of the Constitution. The speeches can be referred to for finding the history of the Constitutional provision and the background against which the provisions were drafted. The speeches cannot form the basis for construing the provisions of the Constitution. [p. 654]\n\n\nKESAVANANl>A v. llllALA (Kh1111na, J.) 51\n\nThe amending clause is the most important part of a Constitution. Upon. its existence and truthfulness. th3; t is, its correspondence with real and natural conditions, depend• the question as to whether the State shall develop with peaceable continuity or shall suffer alternations of stagnat:ion, retrogression .and revolution. The framers of our Constitution were conscious of the desirability o! rc.:ondling the urge for change with the need for continuity.. They were not oblivious of the phenomenon writ large in human history that change\n\nithOut cClntinuity can be anarchy ; change with continuity can mCan progress ; and continuity without change can mean no progress.\n\nThe Constitution makers have, therefore, kept the balance between the danger of Aaving an unamendable constitution anda constitution which is easily amendable. No generation has monopoly of wisdom nor has any generation a right to place fetters -on future gene.rations to mould the machinery of Govern ment and the laws according to their requirements. The grant of power of amendment is based upon the asswnption that as in other human affairs, so ja. constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. I£ it is not permissible under article 368 to so amend the constitution as to take away or abridge the fundamental rights in Part III the conclusion would follow that the only way to take away or abridge fundamental rights is to resort to extra constitutional methods like revolution.\n\nBetween peaceful amendment through means provided by the constitution and the extra constitutional .method with it.s dangerous potentialities the former method is to be preferred. [pp. 663 to 670]\n\nThe consequences which would follow from the acceptance of the view that there is no power under article 368 to abridge or take away fundamental rights would be chaotic. It is one of the well settled rules of construction that if the words of a statute arc in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.\n\nIt is also well settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working ot the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.\n\nThese principles of construction apply with greater force 'vhen dealing with provisions of a Constitution. As the language of article 368 is plain and unambiguous it is not possible to read therein a limita ti on on the power of Parliament to amend the provisions of ~Part III of the Consutution so as to abridge or take away fundamental rights. It is also not permissible in the face of the plain language of article 368 to ascertain by 3.ny process akin to speculation the supposed intention of the constitution makers. If .the words are plain and free from any ambiguity the constitution makers should be takeh to have incorporated their intention in those words.\n\nCollector of Customs, Baroda v. DigviidJingh; i Spinning & Weavin.f! Mil/J Ltd .• [1962] l S.C.R. 896, referred to. [pp. 670 to 671]\n\nThe argument that an amendment of Part III is possible by making a law for convening a Constituent A .. ssembly or for holding a referendum cannot be accepted. If Parliament by a two third majority in each house and by follo, ving the procedure laid down. in article 368 cannot amnd Part III of the Constitution so as to take awayor abridge fundamental rights it is difficult to understand how the same Parliament can by law create a body which can make the requisite amendment.\n\nIf it is not within the power of Parliament to take away or abridge fm!damental rights even by a vote of the. two thirds majority in each hou, se, would it be permissible for the same Parliament to enaet l•gislation under entry 97 List I of the Seventh Schedule by simple\n\nS2 SUPREME COURT REPORTS [ 1973] Supp. s.c.11..\n\nmajority for creating a Constituent Assembly in order to take away or abridge fundamental rights. A body created by Parliament cannot have a power greater than those vested in thC'. Parliament. If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Again, the argument that provisions cculd be made for referendum is equally facile.\n\nOur oonstitution makcn rejected the method of referendum.\n\nIn a country whctc there arc religious and linguistic minorities, it was not considered a proper method of dccidirig vital issues. Thus apart, it is not permissible to resort to the method of refcren. dum unless there be a constitutional provision for such a course in the amend mcnt provision. The selection of the method of amendment having been made by the Constituent Assembly it is not for the Court to express preference for another method of amendment. There is no warrant for the proposition that since the amendments under Article 368 arc brought about by the prescribed 111ajority of the two houses of Parliament and in certain cases arc ratified by the State Legislatures and since the amendments arc not brought about through referendum or passed in a Convention, the power of amendment under article 368 is on that account subject to limitation:;. [pp. 671-078]\n\nG<t>Tge S. Hawkes v. Hervey C. Smith, 64 L Ed. 871, f?Aode lslanJ v.\n\nMitchell, 64 L Ed. 946 and United States v. Sprague, 282, U.S. 716, referred to.\n\nParliament cannot be denied the power to amend the Constitution as te take away or abridge the fundamental rights by complying with the procedure of article 368 because of any supposed fear or possibility ol! the abuse of power.\n\nThat power may be abwcd furnishes no ground for denial of its existence. The\n\nfact that a prescribed majority of the peoples' representatives is required for bringing about the amendment is itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a fetter on the right of people's rcprcscntatives to change the constitution by following the procedure laid down in the . Constitution itself. For seventeen years from 1950 till 1967 when Go/aknath case was decided the accepted proposition was that Parliament had the power 1D amend Part Ill of the C.onstitution so as to take away or abridge fundamental rights.\n\nDespite the possession of that power no attempt was made by Parliament to ta.kc away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past why should it be assumed that the majority of members ot Parliament, in future, would acquire sudden aversion and dislike for these values-.\n\nThen: is a vital distinction between vesting of power, the exercise of the power and the manner of its exercise. What is in issue is whctlicr, on a true cOnstruction of article 368, Parliament has or .has not the power to ainend the Constitution so as to take away or abridge fundamental 'rights. The answer should be in the affirmative as long as the basic structure of the Constitution is retained. [pp. 678 to 682]\n\nPrividence Bank v. A.lpheus Billings, 29 U.S. 514, /ohn L. Rapier, E:rpart•, IS U.S. 93, Bank of Toronto and Lambe, 12 A.C. 575 Mauouri Kansu ond Texas Railway Co. v. May, 194 U.S. 267, n:ferrcd to.\n\nThe power to amend under article 368 docs not include the power to completely abrogate Constitutio'.' and rcplac; c it by an entirely new Consti!\"ti?n. -.. An1endment\" of the Constituuon necessarily contcmolatcs that the Constitunon has not to be abrogated but only changes have to be made in it. The word \"amendment\" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subj~ t.o alb:rations. The retention of the old Constitution means retention of the bu1c\n\nIWAVANANl>A ti. K.EllALA (Khanna, J.) 53\n\n1tn1ctUre or frame-work of tho old Con1titution. Although it is pumissiblo 11Dder the power of amendment to elJect changes howsoever important and to adapt tho 1ystem to the requiremenu of changing conditiono, it ii not putnissible\n\nte touch the foundation or to alter the basic institutional pattern. The words \"amendment of tho Con•titution\" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating tho buic llr\\lcturc or framework of the Constitution. It would not be competent under the garb of\n\namendment, for instance, to change the democratic Government into dicta tot .. ship or hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not decriminate against any citizen on the ground of\n\nreligion only cannot likewise be done away with. Provisions regarding the amendment does not furnish a pretence for subverting the slr\\lcture of the Constitution nor can article 368 be so conslr\\led as te embody the death wish of the Constitution or provide sanction for what may perhaps be called iu lawful Hara Kiri.\n\nThe words \"amendment of this Constitution\" and \"the Constitution shall stand amended\", in article 368 show that what is amended , is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form.\n\nSubject to the retention of the basic structure or framework of the Constitution the power of amendment is plenary and would include within itself the power to add, alter ot repeal the various article including\n\nthOlC relating to fundamental rights. \"Amendment\" in article 368 has been used to denote change. This is a clear from the opening words of the proviso, to ortide 368. The word 'change' has a wide amplitude and would necessarily cover case of repeal and replacement of earlier provisions by new provisions of\n\ndifferent nature. The denial of such a broad and comprehensive power would introduce such rigidity in the Constitution as might break the Constitution must contain ample provision for experiment and trial in the task of administration.\n\nIt is not a document for fastidious dialectics but the means of ordering the life of a , people. It has its roots in the past, its continuity is rcftcctcd in the present and it is intended for the unknown future. [pp. 685, 686,\n\n688-690, 693]\n\nThe Court in judging the validity of all amendment would not enter into the arena of controversy but would concern itself with the question as to whether the constitutional requirements for making the amendment have been satisfied.\n\nAn amendment of the Constitution in compliance with the procedure prescribed by Article 368 cannot be struck down by the Court on the ground that it is a change for the worse. [ p. 694]\n\nA. K. Gopa/an v. State of Madras, [1950] S.C.R. 88, British Coal Corporalion v. The King, [1935] A.C. 500 Lochn.,. v. New York [1904] 198 U.S. 45 and Ferguson v. Skrupa, [1963] 372 U.S. 726, referred to.\n\nSo far as the expression\n\n11essential features\" means the basic. structure or irame-work of the Constitution the power to amend does not include within f the power to change the basic structure or frame-work of the Constitution.\n\nThe di!ercntiation between fundamental right and the essence or core of that\n\nfunen~.1 right !• an over-refinement which is not permissible and cannot otand JUd1C1al scrutmy.\n\nThe essence or core of a fundamental right must in e nature or things its integral part and cannot claim a status or protection di!ercnt from and higher than that of a fundamental right of which it ii oupposcd to be the essence or core. There is also no objoctive standard to ':1ctcnninc as to what is the core of fundamental right and what distinguishes\n\nIt from the periphery. The absence of such a standard is bound to introduce\n\n54 SUPllEME COUl.T -TS {1973] Sapp. $.C.R.\n\nuncertainty in a matter of so vital an importance .as the amendment of the Coostitution.\n\nThe provisions of the Constitution \"'garding the power of making amendment arc clear and unambiguous and contain no limitation OD that power. [pp. 706, 707]\n\nThn-e art no implied or inhe1ent limJ'tations 01J the power of amendmetlt apart from those which inhere anli are impliCit in the tv<lf'd \"amendment\".\n\nThe power ca.nnot be re1trictetl by reference to natural cw hUman righ't;. [p. 759] So far as the limitation which flows by necessary implication from aa express provision of the. Constitution is concerned, the concept derives its 'force and is founded upon a principle of interpretation of statutes.\n\nIn the absence of any compelling reason it may be said that a constitutional provision is not exempt from the operation of such principle. It is not possible to disccr.a in the language of article 368 or other relevant articles any implied limitation on the po, vcr to make amendment contained in that article.\n\nSo far as the limita tion based upon higher values which are very dear to the human heart aml arc considered essential traits of civilised existence is concerned, one obviout objection which must strike every one is that the Constitution of India is one of the lengthiest Constitutions of the World. If it was intended that limita tions should be read on the power of making amendment the question would necessarily arise as to why the framers of the Constitution refrained from txpressly incorporating such limitation on the power of amendment in the Constitution itself.\n\nThe theory of implied limitation is based on a doctrinaire approach and not on what is essential for the purpose of construing and working a constitution, viz., a pragmatic and practkal approach. As the concept of implied limitations on the powerof amendment based on higher values is not based upon some express provision of the constitution, it must be regarded as el'sentially nebulous.\n\nTh~ concept has no definite contours and its acceP\" tancc would necessarily introduce an elcmeat of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. It is difficult to accede to the submission that the framers of the Constitution, after having made such detailed provision~ for different subjects, left something co be decided by implication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said.\n\nThe quest for things not said but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such spe1:ulation and theorising. Natural rights have no proper\n\nplace outside the Constitution and the statute. Independently of the Constituuon and the laws of the State, natural rights can have no legal sanction and cannot be enforced. The binding force of Constitutional and statutory -provisions can not be taken away :o.or can their amplitude and width be restricted by irivoking the concept of natural rights. The. rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the State and not subject to the amendatory process. The power to amend the provisions of the Constitution relating to fundan1cntal rights cannot, therefore, be denied by describing the fundamental rights as natural rights or human rights. [pp. 695 te\n\n700, 728 to 735J\n\n\nCt. &ports 285 (Canada), Attorney General of Novo Scoha v. Attorney Generol of Canada, [1950] Sup. Ct. Reports 31 (Canada) Bribery Commi., ioner •· Pedrick.. Ran• Singh< [1965] A.G. 172, Mccawley v. The King, 1920 A.G. 691 Attorney Generdz for N.S.W. v. Trethowan, [1932]. A.G. 256 and State of Victoria v. Commonwealth, 45 A.I.J.R. 251, held mappltcable.\n\n• '\n\nKESAVANANDA \"· ltEllALA (Khanna, J.) 5S\n\nLiya,,.te v. The Qwem, [ 1'66] AU E.ll.. 650, distinpished.\n\nNotionol Prohibition Cose, 65 L. Ed. 994, fermish Ry .. v. Coptain Mich•el Leoon, (1935] A.C. Irish Reports 170 and Moore & Ors v, Attorney Generol for Irish Free Srate, [1935) A.C. 494, re£emd to.\n\nA part from the part of the Preamble which relates to the basic structure or frame-worfr. of the Constitution, the Preamble 4oe1 not restrict the power of amen4mmt. [p. 759]\n\nThe Preamble docs not control the power of amendment. There is positive evidoncc in the debates of the Constituent Assembly to show that the Preamble is part of the Constitution. As preamble is part of the Constitution its provi lions other than , those relating to the basic structure or framcwork, it may well be argued, are as much subject to the amendatory process contained in article 368 as other parts of the Constitution. If the Preamble itself is amendable its provision other than those relating to basic structure cannot impose any implied limitation on the power 0£ amendment. The principle of construction. is that reference can be made to preamble for purpose of construing when the words of a. statute or constitution arc , ambiguous and admits of two alternative constructions.\n\nWhen the language of a section or article is plain and suffers from no ambigriity or obscurity, no gloss can be put on the words of the section or article by invoking the Preamble. The preamble cannot confer any power per sc : it can never amount, by implication, to an enlargement ot any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution.\n\nIts true office is to expound th~ nature ad CXtcnt and application of the powers actually conferred hv the Constitution and not substantively to create them. [pp. 710-713]\n\nIn re. The Berubari Union and Erchange of Enclaves, [1963]\n\nS.C.R. 250 and Att<>rney General v. H.R.H. Prin<e Ernest, (1957] A.C. 436, referred to .\n\n. Right to fJroperty doet not pertain to basic structure or framework of tlle\n\nConstitution. ·\n\nAlthough the Preamble gives a prominent place to securing the objective of\n\nsocia~ economic and politkal justice to the citizens there is nothing in it which gives primacy to claims of individual right to property over the claims of social, cc.onomic and political justice. There is no clause or indication in the Preamble -which stands in the way of abridgement of right to property for occuring socia~ economic and political justice. Indeed the dignity of the individual upon which also the preamble . has laid stress can only be assured by . 1eeuring the objective of social, economic and political justice. The Directive Principles embody a commitment which was imposed by the Constitution\n\nmaker~ on the State to bring about economic and social regeneration of the tteminj! millions who arc steeped in poverty, ignorance and social backwardncs1.\n\nThey incorporate a pledge to the coming generations of what the state would try to u.sher in. The stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is not a recent phenomenon. This has been the objective of the national leaders since before the dawn of independence and was one of the undorlying . reasons for the first and fourth Amendments of the Constitution.\n\nThe approach adopted was that there should be no reluctance to abridge or\n\nrcgulat• the fundamental right to property if it wu felt necessary to do so\n\n56 SUPREME COUP.T REPoRTS [1973] Supp. s.c.R.\n\nf.or changing the economic structure , and to attain the objectives contained ia the Directive Principles. So far u the quCJtion is concerned u to whether the right to property can be said to pertain to ba1ic llructure or frame-woik ef the Constitution the answer should plainly be in the neptive. Basic 11rUC!Ufe or frame-work indicates the broad outlines of , the Co.Dsatution while the riabt to property is a matter of detail. [pp. 716 to 720]\n\nParliament can by amendment of Ille ConnilUtion enlar1e ill °\"\"' power1.\n\nAmendment of the Constitution, in the very nature of things, can mult jn the conferment of powers on or the enlargement of powers of one of the organs of the State. There is nothing in the Constitution which prohibill or in an} other way prevents the enlargement of powers of Parliament as a result of constitutional amendment and such an amendment cannot be held to be\n\nimpermissible or beyond the purview of article 368.\n\nArticle 368 itaclf gives, inter .Jia, the power to amend article . 368 . and an amendment of arliclc 368\n\nwhich has been brought about in the manner prescribed by that .. article would not suffer from any constitutional or tegal infirmity. [pp. 721 to 723]\n\n/ermish Ryan v. Mischael Lennon, [ 1935] Irish Reports 170, referred to.\n\nThe Constitution Twenty Fourth Amendment Act 111111 ('llll<d in aecortanu\n\nwith the pro<edu~ laid down in Artick 368 of .Ille, C0111ti1Ution 111 it existed bef<>re the passing of the said, Act. The Aci doe1 nor suffer from\n\nany infirmity and 111 such is valid. [l'P 737, 759]\n\nThe amendmenll in article 31(2) and the addition of d. 2(B) of the Constitution Twenty Fifth Amendment Act are permissibk under tll'#, Z, 368 and are, theref<>re, valid. [pp. 739, 741, 759]\n\nThe amendment made in atticle 31(2) by substituting the word \"amount\" for the word \"compensation\" is necessarily intended toget over the difficulty caused by the use of the word \"compensation\". What.ever may be the connotation ol the word 'amount' it would not affect the validity of the amendment made in article 31(2). There is no infirmity in the changes made in article 31(2). [p. 739]\n\n\n3 S.C.R. 530, referred to.\n\nBy the addition of cl. (2B) the amendment seeks. to overcome the effect of the decision of this Court in R. C. Cooper v. Union of India, [19701 3 S.C.R.\n\n530 that article 19(1)(£) and 31(2) arc not mutually exclusive.\n\nThe change made by the addition of clause (2B) in atticle 31(2) is permissible un.dcr article 368 .and cannot be held to be invalid. [ p. 741]\n\nThe first part of artick 31C introduced by ConstilUtion Twenty Fifth Amendmeal i1 valid. [p. 759]\n\nThe first part of article 31C is similar to article 31A except in respect o! the subject matter.\n\nBoth articles 31A and 31C deal with right to ptaperty.\n\nThe objective of article 31C is to prevent concentration of wealth and means of production :ind to ensure the dillribution of ownership and the aintrol of the material resources of the community for the common gi>od.\n\nArticle 31C is thus essentially an extension of the principle accepted in article 31A. Article 31A having been held to be valid during all these years its validity\n\nI I\n\nKESAVANANDA \"· KllllALA (Khanna, J.) 57\n\nainnot now be questioned on account of the doctrine of start Je, isis. The\n\npound which sustained the validity clause (!) of Article 31A would equally .. stain the validity of the first part of article 31C. (pp. 743, 744]\n\nSankari Prasad v. Union of India, (1952 JS.C.R. 89 and Lmer v. Garnet, 258 U.S. 130 referred to.\n\nThe second part of article 31C contains the seed of nauonal disintegration and is invalid on the grounds: (i) It giv<S a carte blanche to the kgislllture to make any Jaw (liolotive of artkkt 14, 19 and make it immune\n\nfrom attack by inst1ting tJie requisite declaration. Article 31C taken along with its second part, gives in effect the power to the legislature, including a State Legislature to amend the Constitution in important respects; and\n\n(ii) it goes beyond the permissible limits of what constitutes amendment under article 368 since the exclusion of even limited judicial rtview strikes at the basic structure of the Constitution. [pp. 759, 760]\n\nThe effect of the second part of article 31C is that even though a law is in substance not in fustherence of the objects mentioned in articles 39(b) and (c) and has only a slender connection with those objects, the declaration made by tile legislature would stand in the way of a party challenging it on the ground that it is not for the furthcrcncc of those objects, A power is thus conferred to make a declaration in rcspcc_t of any law made in violation of the provisions of articles 14, 19 and 31', and, in further powering the state\n\nlegislature to make laws immune from attack on the ground of being violative of articles 14, 19 and 31 by inserting the requisite _declaration, the authority vested with the power to make amendment under Uticle 368 has in cffCct delegated or granted the power of amendment in important respect to a state legislature.\n\nThe power of amendment being of such vital importance c.an neither be delegated nor can those vested with the authority tCJ amend abdicate that power in favour of another body.\n\nArticle 31C taken along with the second part relating to the declaration departs from the scheme of article 31A,\n\nbecaui..e, while the protection afforded by article 31A is to laws ma~~ or specified subject the immunity granted under article 31C can be a\\. ... ucd of even by laws which have not been made for the specified objects.\n\nJudicial review is an integral part of the constitutional system. It is open to the authority amending the Constitution to exclude judicial review regarding the , validity of an existing statute. It is like-wise open to the authority to exclude judicial review regarding the validity. of a statute which might be enatctcd by the legislature in ture in respect of a specified subject. In such an event judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject. Both the above types of Constitutional amendments arc permissible under article 368. What is not permissible is a third type of Constitutional amendment according to which the amending authority not merely exclude judicial review regarding the validity of a statu~ which might be enacted by the legislature in future in respect of a specified ... bjcct, but also exclude judicial review for finding whether the statute enactea\n\nby the legislature is in respect of the subject for which judicial review has been excluded. The position under article 31C is that though judicial review has been excluded by the authority making the Constitutional amendment the law in respect of which judicial review has been excluded is one yet to be passed by the legislatures. In view of the conclusive nature of the declaration it would be straining the language of article 31C to hold that a court can, despite the requisite declaration, go into the question that it docs not give effect to the policy of the State to\\vards securing the principles. specified in\n\n58 SUPll!ME OOURT RJ!PORTs [1973] Supp. s.c.a.\n\nclauses {b) or {c) of article 39. Therefore, the second part of article 31C goes beyond the permissible limit of what constitute amendment under arti(:le 368 and strikes at the basic structure of the Constitution, The second par, t of the article and its invalidity will not affect the validity of the remaining part. [pp. 745 to 756] The Constitution (Twenty Ninth) Amendmmt Act does not •uf]er from any infirmity and as such is valid. [p. 760]\n\nThe oontcntion that articles 31B and 31A arc linked together and that only such enactments can be included in the Ninth Schedule as falf within the ambit of article 31A was repelled by this Court in fuieebhoy v. Assistant Co/. lector, Thana (1965] I S.C.R. 636.\n\nThere is no cogent ground to take a different view. [p. 757]\n\nMathew, f. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid. [pp. 856, 857]\n\nThe dec, Jion .in the Golaknath ca1e that Parliament haJ no power to amend fundamental rights in such a way as to take away or abridge them wru wrong. The pow\"' to amend under article 368 as it stood before the Twenty Fourth Amendmnit was plenary in character and extended to all provisions •f the Constl:tution. The Twenty Fourth Amendment did not add anything to\n\nthe content of ortl'cle 368 as it stood before the amendment. The amendment is d\"laratory in character except as regards the compulsory nature of the astent of the President to a Bill for amendment. Under the article as amended all th1\n\nprovisiont of the Con1titution can be amended by way of addition, variall'on or repeal. The only limita#on it that the Constitution cannot be refealed or abrogated in the exercise of the power of Rmendment without substituting • mechanism by which the State is constituted and Mganised.\n\nThat limitation flowt from the language of the article itself. r p. 857]\n\nAlthough the word amendment has a variety of meanings we have to ascribe to it in the article a meaning which is appropriate to the function te be played by it in an instrument apparently intended to endure for ages te rome and to meet the various crises to which the body politic will be subject.\n\nThe nature of that instrument demands awareness of_ certain presuppositioo.\n\nThe Constitution has no doubt its roots in the past but was designed primaily\n\nfor the unknown future. No existing constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth. In interpreting a Constitution the Court should avoid a narrow and pcndanbc approach. Everything turns upon the spirit in which a Judge approaches the question before hiin. The words he must construe arc, generally speaking, mere vessels in which he can pour nearly anything he will. Seeing therefore that it is a \"Constitution that we arc expounding\" and that the Constitution makcn had before them several Constitutions where the word \"amendment\" \" \"alteration\" is used to denote plenary power to change the fundamentals of the Constitution, the word amendment cannot be given a narrow meaning; but being a familiar c:xprcssion it was used in its familiar ,.J.cgal sense. The power to amend under that article included the power to add any provision to the- Constitution, to alter any provision, substitute any other provision in its plaoe and delete any other provision. But, when the article said that on tht bill far the amendment of the Constitution receiving the President's assent \"the Coutitution shall stand amended\" it seems to be fairly clear that a simple repe81 or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the soope of the amending power, for it, a Constitution were simply repealed it would not st.and amended. [pp. 766 to 769f\n\nKESAVANANDA v. KERALA (Khanna, J.) ;)9\n\nSankari Prasad v. The Union of India, [1952] S.C.R. 89, Saiian Singh •· The State of Rajasthan, [1965] I S.C.R. 93.l, Golaknath v. State of Punjab, (1967] 2 S.C.R. 762, Rhodt Island v. Polmer, 253 U.S. 360, State (At the Prosecution of Jeremiah Ryan and Others) v. Captain Michsel Lannon and Others,\n\n[1935] Irish Reports 170, Re the Central Provinces and Berar Sales of Motar Spirit and Lubricants Taxation Act, 1938, etc. [1939] F.C.R. 18, The Queen\n\nv. Buroh [1878] 3 A.C. 889, 904-905, Attorney General for Ontario v. Attorne7 Gen<ral for Canada (1912] A.C. 571 at 583, referred to.\n\nIn a rigid Constitution there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of dit: ordinary legislature and that i$ the law of the Constitution which is of superior obligation nknown to a flexible Cons.titution.\n\nIf a special procedure is prescribed by the Constitution for amending it, different from the procedure for pas<ing the ordinary law, then the Constitution is rigid. [p. 770]\n\nArtile 368 as it stood before the Twenty Fourth Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary law our Constitution is a rigid one and the power to amend a Constituent power.\n\nThe vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law.\n\nAn ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution its validity is, generally speaking, inherent and lies within itself. Once it is realised that a Constitution differs from law in th.at a law is valid only if it is in conformity with the Constitution and that the body which makes the ordinary law ii not sovereign, but derives its power from the Constitution, an amendment to the Constitution has the same validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and within the power conferred by the Constitution is always -justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Cons titution. An amendment of the Constitution can be ultra vires just as an ordinary law can be. [pp. 769, 771, 772]\n\nThe word law in Article 13(2), in the context could only mean an ordinary law. If the power to amend was to be found within article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that the Constituent power for amendment of the Constitution .is distinct from Legislative power. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because in respect of the matters covered by the proviso to. article 368 Parlia1nent has no exclusive power to amend the Cont~ titution. Apart, 'the power to amend a rigid Constitution not being an ordinary legislative power but a Constituent one, it would be strange that the Constitution n1akers put it su/J..silentio in the residuary legislative entry. Article 368 was\n\nclear that when the procedure prescribed by the article was followed, wluit resulted was an amendment of the Constitution. The article prescribed a proce dure different from the legislative procedure prescribed in article 107 to 111 read with article 100. [pp. m-7751\n\nThere is a distinction bctwccn a general power to legislau: and a poto lcgislat<: by special legislative procedure and the result of the exercise ti the two powers are different. Mc Cawley v. The King and The Bribery Com\n\nmissioner v. Pedrick Rana Singhe do not •how that the power to amend tile\n\n60 SUPREME COUJ!.T REP?llTS [ 1973] Supp. s.c.ll.\n\n<Anstitution is a legislative power. The substance of the decision in Ra~• SingAe's case is that though the Ceylon Parliament has plenary power ,. ordinary legislation, in the exercise of its Constituent power it was subject\n\nto the special procedure laid down in s. 29{4). The decision therefore makes a clear distinction between lcgisl_ativc and Constituent powers. Again, there is no analogy between power of amendment in Omada which is le&islativc in\n\ncharacter and the power of amendment under article 368 which is a Constituent power. Under a Controlled C-onstitution like ours the power to amend cannot. be a legislative power; it can only be a Constituent power. [pp. 776-779)\n\nThe argument that if fundamental righu were intended to be amended in such a way as to abridge or taken them away considering the paramount importance of the rights the procedure required by the proviso to article l68 would have been made mandatory overlooks the purpose of the proviso. The purpose of the proviso is that rights, powers and privileges of the States or their status as states should not be taken away or impaired without their participation to some extent in the amending process. [p. 779)\n\nGolaknath case [ 1967] 2 S.C.R. 762, held incorrect.\n\nMc Cawley v. The King [1920) A. C. 691, The Bribery Commissioner •· Pedrick Ranasinghe [1964) 2 W.L.R. 1301; [1965) A.C. 172, explained.\n\nContemporaneous practical exposition is a valuable aid to the mcllDing of a provision of the Constitution or a statute. The Constitution (First Amendment} Act amended the Fundamental rights under Article 15 and 19 in such a way as to abridge thCJn, Even the strong opponents 0£ the amendments never made a\n\nwhisper of a suggestion in their speeches that fundamental rights were not amendable. If the debates in the Constituent Assembly can be looked into to understand the legislative his::ory of a provision of the Constitution including its derivation, that is, the various steps leading upto and attending its enactment to ascertain the intenon of the makers of the Constitution, it is difficult to see why the debates arc inadmissible to throw light on the purpose and gmcral intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision arid thereby sheds light upon legislative intent. That it was Dr. Ambedakar's view that all the articles could be amended is clear from his speeches in the Constituent Assembly. He refuted the suggestion that fundamental rights should be absolute and unalterable.\n\nThe framers of the Constitution would have specifically provided for an cxccption in article 368 if they wanted that the fundamental rights should not be amended in such a way as to take away or abridge thctn. [pp. n9 to 785]\n\nA. K. Gopalan v. The Stat< of Madras, [1950) S.C.R. 88, StaJ< of Tr•uan- \"'..Cochin and Oth'ers v. The Bombay Co. Ltd. etc., [1952)\n\nS.C.R. 1112, Golaknath Case, [1967) 2 S.CR. 762, 791 Madhav Rao v. Union of India, [1971) 3 S.C.R. 983, Union of India v. Harbhaian Singh Dhillon, [1971) 2 S.C.C. n9,\n\nn:ferrcd to.\n\nIt was necessary to incorporate article 13{2) in the Constit\"\"'\"' to indicate the extent of the invasion of the fundamental right which w-t•ld make the impugned law void. Every limitation upon a fundamental right would ot be an abridgement of it. Whether a specific law operates to abridge • s1>ecilically\n\ngiven fundamental right cannot be answered by any dogma whcthe~ of • priori assumption or of mechanical jurisprudence. The Court ust amvc at a value judgment as to what it is that is to be protected from abr1dgc_mcnt and then it must make a further value judgment as to whether the law impugned\n\nXESAVANANl>A \"· KUALA (Mathew, J.) 61\n\nrally amounts to an abridgancnt of that right. In this process the Court will\n\nhave to look to the Direclive Principles in Part IV to sec what exactly is the conientof the fundamental right. The Court would generally be more astute\n\nto protect personal rights than property rights. [PP: 785, 786]\n\n.A.. _K. Gopalan v. State of Madras, [1950] S.C.R. 88 .\n\n. .'TAtrt .,., no implied or inA~I limitations upon the power of •\"\"\"\"\"\"\"' uildtr .Fticle 368. [p. 857]\n\n. The basic premise of the argument that there are inl¥orcnt and implied limitations is that the ultimate legal sovereignty under the Constitution resides in the peaple. The Constitution was framed by an assembly elected indirectly on .. A limited , franchise. and . the Assembly did not represent the vast majority ol the people of the Country. It does not follow that because the people of India dld. not frame the .. Constitution or ratify it, the Constitution has no legal validity. If the legal source for the validity of the Constitution is not that it was framed by the people, the amending provision bas to be construed on its own nguagc without reference to any extraneous c.onsidcration as to whet.her tlie people did or did not delegate all their Constituent power to the amending body or that. the people reserved to themselves the fundamental rights. Even on the assumption that it was the people who framed the Constitution could it be said that after the Constitution was fra.m<d the people still retain and\n\ncan exercise their sovereign constituent power to amend or modify the basic slriicture or the essential features of the Constitution by virtue of their legal sovereignty I [pp. 78&.790]\n\nSeeing however that the people have no constitutionill or legal powa assigned to than under the Constitution and that by virtue of their political supremacy, they can unmake the Constitution only by a method not sanctioned by the ; uridical order, namely, revolution, it is difficult to agree that the kglll\n\nsoverdgnty under the Constitution resides in the people or that as the ultimate legal sovereign the people can constitutionally change the basic structure of the Constitution even when the Constitution provides for a specific mechanism for its amendment.\n\nIf sovereignty is said to exist in any sense at all it must exist in the amending body. Under the Constitution the people have delegated the power to amend the instrument which they created to the amending body.\n\nIt was in the exercise of the constituent power that the people framed the COnstitution arid invested the amending body with the power to amend the very instrument they created with a superadded power to amend that very 1'9Wer. The instrument they created, by necessary implication, limits the further curcise of the power by them, though, not the possession of it. There is a\n\ndistiction between possession of a right or power and the exercise of it.\n\nThe people having delegated the power of amendment that power cannot be esercised in any way other than that prescribed nor by any instrumentality otl\\er than that desinated for that purpose by the Constitution. The Constint .power is the power exercised in establishing a Constitution, that .is, the fundamental decision on tcvolutionary reasons tcr the org:anisation and limitation of a new. Government. From this Constituent oowcr must be distinguished die. amending ·~r which_ changes an existing Constitution in form provided bf. the. Constitution itself. for the amending power is itself . a constituted\n\naulhority. To. say that a nation can still exercise unlimited constituent power • having framed a constitution vesting plenary power of amendment under ir'in'.•, ... para. te l?od.Y is only to say that the people have the political power t9 #9se the ei<istiiig order by means of a revolution. But this doctrine cannat\n\n62 SUPREME COUltT REPORTS [ 1973 J Supp. s.c.l.\n\nbe advanced to t\"lacc implied limitations upon the amending power provided in a written constitution.\n\nIt is only in a revolutionary sense that one can distinguish between Constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within the fram.e-\n\n~; ork of the Constitution. The proposition that an unlimited amending authority\n\ncannot make any basic change and that the basic change can be made only by a revolution is something extra legal nt> Court can countenance. Under the Indian Constitution the original sovereign-the people-cread by the amending clause of the Constitution a lesser sovereign almost co-extensive in power with itself. It might be open to the amending body to amend article 368 itself and provide for referendum or any other method for ascertaining the will ot the people in the matter of amendment of fundamental rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people and not by a Constitutional authority like the Amending body, was it open to the amending body, or would it be open to the amending body today to amend article 368 in such a way as to invest the people with that power to be exercised by ferendum or any otlier popular device ? [pp. 791 to 796]\n\nMc Cu/loch v. Maryland, [1819] 4 Wheat 316, State of Wen Bmgal \"· Union of India, [1961] I S.C.R. 371, 396-398, Chii/iolm v. G<Drgia, [1793] 2 Dallas 419, 470'471, Huth v. Clarks [1890] 25 Q.B.D. 391, 395; Dodge\"·\n\nWoolsey [1856] 18 How. 331, 348, and Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 381, referred. to.\n\nThe Preamble is part of the Constitution. That being so there ;. no valid reason why the preamble cannot be amended. The broad concepts of justicosocial, economic and political, equality and liberty thrown large upon the canvas of the preamble as eternal verities are mere moral adjudication with only that content which each generation must pour into them anew in the light of its own experience. An independent judiciary cannot seek to fill them from its own bosom. If it were to do so, in the end it will o:asc to be independent. For a country struggling to build up a social order for freeing its teeming millions from the yoke of poverty and destitution, the Preamble cannot, afford any due to the priority value of these concepts inter se. And, for makini the experiment for building up the social order which the dominant of the community desires, these delphic concepts can offer no sol11noo in\n\nrespect of their priority value as among themselves. They olfcr no guide in what proportion should each of them contribute, or which of them sha\\dd\n\nsuffer subordination or enjoy dominance in that social order. How then am one of them operate as implied limitation upon the power of amendsiicllt wbcA lhe object of th<: amendment' is to give priority value to the otbel' Of et.bal ,\n\n[jip; 796 to ?!leJ\n\nBetubari Case [1960] 3 S.c.R. 250, 281, 282; Aod'1'10fO v. Dful• 6 'Wi. 204; 206 U.S. 1821; referred to.\n\nThe theory of implied limitation propounded might .;;, vi~.~ <hat \"it is an interpretation of the Constitution depending , Oil an ; n, plicldaii which is formed on. vague, .indiyidu\"; i nption of the lpirit of the: ~' Whenever the quesaon of unphed limitaaon upon the power of ....,;,,~~· was raised courts have not countenanced the contention.- There is. no tO think that the word 'amendment' was used in any narrow 9CllSC in articlt1l.\n\nand that the power to amend un<IQthat article was in an1 wa1 limi. , . • there is power the fact tha. t it might be. obuse. . cl is 110 ground .fm. cuainJ .~ iti. width. Tb< <~111il>n that if.fh, e ·~. t() , ainell'I fliiltal • 14 such a way as to take away or abridge them ;. to Vest in Parliament, rt-w.iui.r\n\nKESAVANANDA ~. JCER.\\LA (Mllthew, J.) 63\n\n•ing about , catastrophic conscqucnus has an air of unreality when tosted In lhe light of what has happened between 1951 when S•nlc.ari PrasaJ's case recognised the power of the Parliament to amend the fundamental rights and 1967 ,.bcn the Gol./r..1lllth case was decided.\n\nIt should be remembered that Parliament when it exercises its power to amend fwidamental rights is as much the pardian of the liberties of the people as the Courts. [pp. 799 to 814]\n\nRhode Island v. Palmer, 253 U.S. 350, explained.\n\nLeser v. Garnetl, 258 U.S. 130, U. S. v. Sprague, 262 U.S. 716, Sch•eiderman Y, U. S. 320 U.S. 118, 137-145, U. S. v. Dennis, 183 Federal Reporter 2d. 201,\n\nInd Whiuhill v. Elkins, [1967] 189 U.S. 54, 57, referred to.\n\nRyan's case, [1935] Irish Reports, 170, Moore v. Ateorney General for the lri1h Stat<, [1935] A.C. 448, referred to.\n\nLiyanag< v. The Queen, [1967] 1 A.C. 259, explained.\n\nWeb v, Outrim, [1907] A.C. 81 (P.C.) referred to,\n\nAlberta Prm Case, [1938] 2 D.L.R. 81, Saumur v. City Quebec, [1953] 4 D.L.R. 641, &. th< Initiative and Referendum Act, (1919) A.C. 935, 945, A. G. Ontario v. A. G. Canada, [1912] A. C. 571, Shannon v. Lower Mainland D.; ry Products Board, [1936] A.C. 708, Taylor v. Attorney General of Qu=i\"\n\nlond, 23 C.L.R. 457, held inapplicable.\n\n\nVictoria v. Commonwealth, 45 Australian Law Journal, 251 and Amalga- ••14d Society of Engineers v. Adelaide Suamship Co. Ltd. [1920] 28, C.L.R. 129, referred to.\n\nQueen v. Burah, [1878] 3 A.C. 889, held inapplicable.\n\nMc Culloch v. Marylanil [1819] 4 Wheaten 316, Essendon Corporation v.\n\nCril<rion Theatres, [1947} 74 C.L.R. 19-22 and State of West Bengal v. Union\n\nII/ India, A.I.R. 1963 S.C. 1241, referred to.\n\nVacher •nd Sons v. London Society. of Compositors, [1913] A.C. 107, at p. 121 & 128, Bank of Tot\"onto v. Lambe, [1887] 12 A.C. 575', 586, Ez-parte\n\nCrostman, 267 U.S. 120, 12, referred to.\n\nTo appreciate the argument that there is inherent limitation on the power oi Parliament to amend fundamental rights it ;. ncceosary to undcrstatld the\n\nsource from which these rights arise and the reason for their fundamentalness.\n\nNatural rights are those rights which arc appropriate to man as a rational and moral being and which are necessary for a guod life.\n\nAlthough called 'rights' they arc per se enforceable in Courts unless recognised by the positive law of a State. The word 'right' has to be reserved for those claims rccog\n\nailed and protected by law. There arc rights which inhere in human beings .Lcausc they arc human beings; whether you call them natural rights or by\n\nlllJle other appellation is imruaterial. As the Preamble indicates, it was to ..auc the basic human rights !\\kc liberty and equality that the people gave - thetnse!Yes the Constitution and these basic rights are an essential feature w tho Constitution; the Constitution was also enacted by the people to sc.curc jlistile;, ,, political, .ocial . and economic. Therefore, the moral rights embcidied , in Part IV of the Constitution arc equally an essential feature of it, the only\n\n64 SUPiEMJ! COUJ.T llEPOllTS [1973) Supp. S.CJl,\n\ndiffereace being that the moral rights embodied in Part IV arc not spocilically enforceable as against the State by a citiun in a Court of law in case tho State fails lo implement its duty ; but nevertheless, they are fundamental in tho governance of the country and all the organs of the State, including the judiciary, are bound to enforce tloose directives. The Fundamental Rights themselves haft .no fixed content ; most of them are mere empty vessels into which each generation must pour its content in the light of its pcricncc. Rcstrictiom, abridgement, curtailment, and even abrogati9n of these rights in circumstanca,\n\nnot visualized by the Constitution makers might !xcomc ncc.cssary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or mWt yield to them is a matter which must be left to bC decided by each gencratioa in the light of its experience and its values. And, if Parliament, in its capacilJ as the Amending Body, decides to amend the Constitution in such a way. • to take away or abridge a Fundamental Right to give priority value to d!e moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution makers has been made dominaat.\n\nJudicial review of a constitutional amendment for the reason that it gives priority value to. the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III iJ impermissible. Many of the articleJ, whether .ia Part III or Part IV, represent moral rights which they have recognis<d • .inherent in every human being in this country. Taking for granted that, ..,.\n\nand large Fundamental Rights arc the extensions, permutations and combinations of natural rights in the sense explained, ft docs not follow that then: ii any inherent limitation by virtue of their origin or character 'in their bcins taken away or abridged for the common good. The source from which tbao rights derive their moral sanctiOn and transcendental character, namely, IS\n\nnatural law, itself recognlzes that natural rights are only prim11 fad• rip. liable to be taken away or limited in special circumstances for scCuring higher values in a society or. for it.s common good.\n\nBut. the responsibility ol.\n\nParliament in taking away or abridging a Fundamental Right is an aweoomo one and whenever a question . of constitutional amendment which will ha.,. the above effect comes up for consideration, Parliament wt be aware this they are the guardians of the rights and liberties of the people in a 2IU*\"' degree than the courts, as the Courts cannot go into the validity o1 diio amendment on any substantive ground. [pp. 814 to 836]\n\nState of W•st B.ntal v. Subodh GopaJ (1954) S.C.R. 58i, 596, Bas•hisNir Nath v. Commission.,. of Jm:om• Tar, Delhi, \"'\" [1959] Supp. 1 S, C.R. 521, 605, State of Miuiras v. Cham{Nlkam [1951) S.C, R. 525, Rom., A Tn.fM! J: State of Madras, [1950] S.C.R. 594, State of Bihor v. Shailahala D\"1i [l952J s.c.R. 654, LJch,,.,. v. New York 198 U.S. 45, State of Madras v. V. G. R..,. [1952] S.C.R. 597, foint Anti-Fascist &fugee Committe• v. Me GraiJ. 341 t/'.S. 123, Munici[Nll Committee v. The State of Punjab\n\n[1969) 3 S.C.R,:4471 4~, Collator of CYstoms v. Sampathu [ 1962] 3 S.C.R. 786, 816, Abbqs v. Uni<>*~ India [1971) 2 S.C.R. 446, 470, Quamhi v. S141te of Bih11r. [1959J S.C.R. , Namth v. State of M11Aarasl11ra [1966) 3 S.C.R. 744, C.,.,... v. T'!\"'l 177 J.1 442., 447, referred tD.\n\nThus, there were no apress or implied limitations upon the . poooer a Parliament to amend the Fundamental Rights in such a \"\"'Y u tD er damage eYen the core or essence of the ripu. Tbe 24th A\"\"\"\"-t.. \" .\n\nKESAVANANDA v. Kl!RALA (Mathew, J.) 65\n\nits language, makes it clear beyond doubt. Ju the majority decision in the Golaknath case negatived the constituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which,. according to the Amending Body, was wrong, the Amending Body passed the amendment to make it clear that the power to amend is located in the article, that it is a constituent power and. not a legislative power as held by the majority decision in the Golaknath case, that the power is plenary in character and that article 13(2) is not a bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them under article 368. That the object of the amendment was declaratory in character is clear from the statement of Objects and Reasons for the Amendment. - An Amending Body can in the exercise of its power to amend, if the power to amend is plenary, make an amendment in order to make clear what was implicit in the article and correct a judicial erri>r in the interpretatioa of the article. [pp. 836, 837]\n\nEven if it be assumed that the actual power for amendment under the arti<:le was limited, the article gave the Amending Body a potential power, to cnlarp or contract the limit of the actual power. The potential power, when exe1cise.d by the Amending Body, makes the actual power either enlarged or contracted, (p. 837]\n\nThe word 'amount' in article 31(2) as amended by Constitution Twenty Fifth Amendment does not convey the idea of tlflJ norm. The fixation of the amounf or the principle for determining the amoum is 11 matter within the absolute discretion of the Parfument or the State l<gi1latwes. The Court cannot go into the question whether the omount fized by law or the prfn ... ciple; laid down for determining the amount is adequak M relevant. [p. 846]'.\n\nIt is a mistake to speak of property as jf it were an institution having a. fixed content constantly remaining the same; whereas, in reality it has assumed most diverse forms and is still susceptible to great unforeseen modifications. It is necessary to distinguish at least three forms at private property ; (I) property in durable and non durable consumer goods; (ii) property in the mean• of production worked by their owners; and (iii) property With means of produc=. tion not worked or directly managed liy the owrs, especially th<! accumulations. of masses of property of this kind in the band& of a relatively narrow class..\n\nWhile the first two forms of property can be justified as nccesaary conditios. of a free and purposeful life, the third =-· For this type of property Hive•. power not only over thing>, but through t:Nngs ovu pc:nons. It is open io.. the charge made that any form of propetty whieh givts man power over nw>\n\nis not an instrument of freedom, but, of \"'rvitude. AJ>y defence of the right to own and hold property must essentially be the defence of a wclJ distributed. property and not an abstract right that can, in practice, be cxerciS<d only by the few. [pp. 840, 841] ·\n\nWhen property is acquired for implementing the directive principles under article 39(b) or 39{c), is there an ethical obligation upon the State to pay tlte\n\nfull market value? AJl adequate theory of social justice should enable one ta. draw the line between justifiable and unjustifiable cases of confiscation.\n\nThe whole purpose of the amendment is to exclude judicial review of the question· whether the 'amount' fixed or the principle laid down by law is adequate or relevant. Fixation of the amount or the laying clown of the principles for fixing it is left to the absolute discretion of the Parliament or the St.au: Legislatures ?n .the asis of con;; ide:ati~s of social justice. And, the principle of social JUsllce will not furmsh 1ud1aally manag<able st1ndards either for testing the adequacy of the amount on the n:levmcy of the principle. [pp. 842 to 846]\n\nS-36 S.C. India/71\n\n66 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\n[His lordship did not find it necessary to go into the question whether a law fixing an amount which is illusory or which is a fraud on the Constitution can be struck down by Court. [p. 847]\n\nThe declaration vizualized by article 31C that the law gives effect to the policy of the State towards securing the principles specified in article 39(b) and (c) of the Constitution would not oust the jurisdiction of the Court to go Jnto the question whetherthe law gives effect to the policy. The jurisdiction of Parliament or the- State legislatures to incorporate the declaration in a law is conditioned upon the circumstance that the law is one few giving\n\nffect to the State policy towards securing the aforesaid pnnciples. [pp. 854, 855]\n\nIf the 24th amendment which enables Parliament to make an amendment of the fundamental rights in such a way as to take away or abridge them is valid, what is there to prevent Parliament from enacting a Constitutional amendment making it possible for Parliament or state , legJ; latures to pass laws for implementing the Directive Principles specified in article 39(b) and 39(c) which would be immune from attack on the ground that those laws violate articles 14, 19 and 31 I Article 31C is a proviso to article 13(2) in that it enables Parliament or State Legislatures to pass laws of a particular type which would not be deemed to be void even if they violate the provisions of articles l4, 19 and 31. Artic:le 31C merely carves out a legislative field with reference to a particular type of law and exempts that law from the ambit of article 13(2) in some respects. Merely because a law passed by the Parliament or the State Legislatures to give effect to the policy of the State towards securing the Directive Principles specified in article 39(b) and { c) in pursuance to valid legislative entries in the appropriate lists, might violate the fundamental rights under article 14, 19 and 31 and such a law is deemed not void by virtue of article 31C, it would not follow that article 31C has invested Parliament in its legislative capacity or the State Legislatures with power to amend the Constitution. It is not for the Court to prescribe for the society or deny the right of experimentation to it within very wide limits. [pp. 854, 855]\n\nA law which will never give effect to the State policy towards securing the principles in article 39(b) and article 39(c) will enjoy no immunity if any of its provisions violates these articles. The legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is conditioned upon the circumstance that the law gives effect to the policy of the State towards securing the directive principles specified in article 39(b) and (c). The declaration can never oust the jurisdiction of the court to see whether the law is <inc for giving effect to such a policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles. In order k> decide whether a law gives. effect to the policy of the State towards Securing the Directive Principles specified in articles 39(b) or (c) a Comt will hawe to examine the pith and substance, the true nature and character ofthe law as also its design and the subject matter dealt with by it together \\vith its object and scope. [pp. 855, 856]\n\nBeg. /: Concurring with Ray. Palekar, Mathew and Dwivedi, II: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments are valid. [pp. 885, 886]\n\nWe should approach the questions placed before us from the pragmatic angle of the changing nC.ds of social and economic orders visualised by those who were or are the final judges of those needs in exercise of the constituent power. [p. 882]\n\nXESAVANANDA V. KERALA (Beg, J.) 67\n\nIt is clear from lhe Preamble as well as the provisions of Part III and IV uf our constitution that it seeks to express the principle SaluJ Pofuli Supre'ma\n\nLex. In other words, the good of the mass of citizens of our country is lilic supreme law embodied in our constitution. The voice of the people king through the Constituent Assembly, constituted a new \"Republic\" which w'as both \"Sovereign and Democratic... It sought to secure the noble objectives laid\n\ndown in the Preamble primarily through both the fundamental rights foun~ in Part lII and the Directive Principles of State Policy found in Part IV of th¢ Constitution. It would not be correct to ch', aracterisc the fundamental rights 3$:\n\nmerely the means and the directive principles as the ends of the endeavours of the people. lndecd, from the point of vieVf of the Preamble both fundamental rights and directive principles are means of attaining the objectives which were meant to be served both by the fundamental rights and Directive principles.\n\nPerhaps, the best way of describing the relationship between the two would be to look upon the Directive Principles as laying down the path of the country's progress towards the obiectives stated in the Preamble, with fundamental rights as limit of that path, like the banks of a flowing river, which could be amended or mended by displacements, replacements or curtailments or enlargements of any part according to the needs of those who are to use that path. A careful reading of the debates in the Constituent Assembly leads to this premise or assmuption. If the path needed widening or narrowing or changing the limits could be changed. The nlandate of article 37 is primarily addressed to the Parliament and State legislatures. But in so far as courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by th.is mandate.\n\nAnother valid and significant distinction is that whereas the fundamental rights are 11conferred\" upon citizens with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamental rights freedom of individual citizens, reviewed as individuals, were sought to be protected, but in giving specific directives 'to state organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two is to be always attempted whenever this is reasonably possible. But there could be no doubt, in cases of possible conflict, which of the two had to be subordinated, when found embodied in laws properly made. [pp. 861 to 865]\n\nMotilal v. Government of the Stale of Ullar Pradesh, A.LR. 1951 S.C. 257, 296; Balwanl Rai v. Union of India, A.I.R. 1968 All. 14, referred to.\n\nThere is a well known distinction between \"political sovereignty\" and \"legal sovereignty\". Legally the British Parliament transferred the whole of its legal sovereignty over the people and territories of this Country to the Constituent Assembly. Thus legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically \"sovereign\".\n\nThe political sovereign operated outside the ambit of law, yet, made its impact and effect felt upon the legal sovereign, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India the Constituent Assembly began the Preamble with the words 11we the people of India\". This meant nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of the Country. through the Constitution framed by it. There is not to be found, anywhere in the Constitution, any transfer of legal sovereignty to the people of India. The Constitution is the 'legal sovereign recognised by courts although the ultimate political sovereignty reside in \"the people\".\n\nThe sovereignty of the Constitution is a \"Eca:ture\n\n68 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.\n\ninherent in a genuine whole\". It is not vested in all its aspects in any one of the three organs of the State, but, may be divided between them. The Constitution divides or distributes legal sovereignty into three branches or organs of the State-the Legislative, the Executive and the Judicature.\n\nThe sphere 0£ sovereignty of each is sought to be so demarcated by our constitution that the \"genuine whole\" appears in the form of three intersecting circles.\n\nIn. those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But in the remaining parts of the two intersecting circles of the legislative and executive spht:res, the two other branches are supreme legally just as the judicature is in its own.\n\nThe judicature is the ultimate testing authority, as the guardian of the Cons~ titution, in so far as the ordinary law making is conceri1ed. In the sphere of primary fundamental law of the Constitution lies also the amending power contained in article 368 of the Constitution over which the control of the judicature is limited to seeing that the form and manner of the amendment is properly observed. [pp. 865-870]\n\nDicey, Law of the Constitution, Tenth edn. p. 73; Ernest Barker, Principles of Social and Political Theory 59, 61~3; Laski; Grammar of Politics 296-297, referred to.\n\nThe Constitqtion is based on the assumption that it is a means of progress of all the people of India towards certain goals. The direction towards which the nation is to proceed is indicated but the precise methods by which the goals arc to be attained ar~ left to be determined by the State organs of the future. One generation has no right to tie down future generation to its own vie\\vs or laws even on fundamentals. We cannot infer from anything in the language of the unamended article 368 any distinction beyond that found in the more difficult procedure prescribed for amendment of certain articles between\n\nmoe and less basic parts of the Constitution. The function of the amending provision must necessarily be that of an instrument for dynamic and basic 1 changes in the future visualized by the Constitution makers. The constitutional function with which the judiciary is entrusted is to see that the chosen vehicle does not leave the chartered course or path or transgress the limits prescribed by the Constitution at a particular time. [pp. 871, 872]\n\nIn a Constitution like ours we must strongly lean against a construction 1Vhich may enable us to hold that any part of the Constitution is exempt from the scope of article 368 as originally framed. Without express words in article 368 itself to that effect it is not possible to preswne or infer the presence of any causus omisus. Article 13(2) is meant to deal with ordinary laws or the functions of the Parliament and of State legislatures in their ordinary law making capacities. Even if it be assumed that because 'law' is not exhaustively defined by article 13(3) of the Constitution, the term 'law' used there could include the law of the Constitution, another principle of construction apply.\n\nEven a prior general provision followed by an express provision dealing with a particular type of law could reasonably exclude the particular and special from the purview and scope of the general. It is immaterial if the general provision precedes the provision containing a special law. [pp. 873 to 877]\n\n\nKESAVANANDA v. KERALA (Dwivedi, J.) 69\n\n[The majority view in Golaknath held erroneous.] [p. 885]\n\nThe only 'implied' limitation which can be read into the word\n\n1amcndmcnt' <ls \"perhaps\" necessarily implied, or, as part of the meaning of the word \"''amendment\" is the one so characterised by Wanchoo, J. in Golaknath case.\n\nIn other words it may not include the power of completely abrogating the Constitution at one stroke. It, however, seems wide enough to erode the Constitution completely siep by step so as to replace it by another. [p. 877]\n\nWe do not today conceive of public good or progress in terms of \"'movement from status to contract\", but in terms of a movement for control -of economic and other kinds of powers of exploitation by individuals. The -emphasis today is upon due performance of their social obligations by individuals before claiming any right, however fundamental or important it may be, because, rights and duties are correlative. [p. 883]\n\nThe Constitution is the principal and the source of all constitutionally valid power and authority in the eye of law. Therefore, there can be no question \"Of delegation of power of amendment. The declaration contemplated by article 31C is like a certificate given after considering the relevancy of the principles •pecified in article 39(b) and (c) and, therefore, the jurisdiction of ihe Court is not ousted.\n\nThe Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece of legislation or to a law which has no bearing on or nexus with the principles found in article 39(b) and (c). [pp. 880, 884]\n\nDwivedi, /.: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments are valid. [p. 938] ·\n\nAt bottom the controversy in these cases is as to whether the meaning of the Cons!itution consists in its being or in its becoming. The Court is called upon to decide whether it is a prison house or a free land or whether it speaks for the few or for the many. TP 888)\n\nThe Constitution of India reflects the hopes and aspirations of the people Qf India, emerging from colonial economy in the second half of the 20th -century. Cons!itutions framed 'in the past for organising political democracy -cannot serve as a safe guide in construing the .constitution of India framed for ushering in social and economic democracy. The Constitution bears the imprint <Jf the philosophy of our National Movement for Swaraj. The National Movement was committed (1) to wqrk for social ei::onomic and political equality <>f the weaker sections of the people; (2) to disperse concentration of wealth in any form in a few hands and ( 3) to acquire property in accordance with law. The men who took leading part in framing the Constitution were animated by these noble ideals. They embodied them in the Preamble to the Constitution; they proliferated them in the Directive Principles of State Policy; they gave ihem ascendency over the rights in Part III of the Constitution (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31 (4) (5) and (6)). They made them \"fundamental\" in the governance of the Country. They are \"vital\n\nprinciples\" for, when, translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right. It will be legitimate to bear in mind the pre-emptive significance of Part IV in understanding the Constitution. [pp. 888 to 8921\n\n70 SUPREME COURT REPORTS [!973] Supp. S, C; R,\n\nRuidence of amending power\n\nDespite the marginal note to article 368 which indicates that Article 368 is prescribing the procedure for amendment, sevcal considerations clearly sho:w that the amending power is located in article 368. The power cannot reasonably be located in Entry 97 of List I of Schedule Vil read with article 248 of the Constitution.\n\nArticle 368 provides specifically for a procedure for amending the constitution and when the prescribed procedure is followed\n\n11the Constitution shall stand amended in accordance with the terms of the Bill\". Who can bring about a certain result may truly be said to have the power to produce that result.\n\nPower to amend the Constitution is accordingly necessarily implied in article 368. The procedure prescribed in arJcle 368 is the exclusive procedure for amendment of the Constitution. The word 'only' in article 368 rules out all other procedures for amendment. [pp. 892 to 894]\n\nNatur~ of amending power\n\nThe amending power conferred by article 368 is a constituent power and not a legislative power. The framers of the Constitution made a distinction between \"legislative power\" and \"constituent power\".· Broadly speaking\n\n1cons tituent power' determines the frame of primary organs of Government and establishes atithoritative standards for their behaviour.\n\nIn its ordinary sense legislative power means power to make laws in accordance with those authori .. tative standards. Legislative power determines the form of secondary organs of Government and CStfl, blishes subordinate standards for social behaviour. The\n\nubordinatc standards arc derived from the authoritative stindards established by the constituent power. The distinction between constituent power and legifo lativc power in a controlled constitution proceeds from the distinction Oetween the law making procedure and the constitution amending procedure.\n\nOur Constitution is of a hybrid pattern. [t is partly controlled and partly uncontrolled.\n\nWhen any part . of the Constitution is amended by following the legislative procedure the amendment is the result of exercise of the legislative po\\vers ; when it is amended through the procedure prescribed by article 368, the> amendment is the result of the exercise of the constituent power. [pp. 894 to 896}\n\nIn re: Th< Dtlhi Laws Act, [1951] S.C.R. 787, 812, referred to.\n\nDominion of amending power\n\nThe Phrase \"amendment of this Constitution\" is the nei've-centre of article\n\n368. It is determinative of the dominion as well as the magnitude of the amending power, The words \"this Constitution\" embrace the entire Constitution. The Preamble is part of the Constitution. Thus the amending power can amend each and every provision of the Constitution including the Preambleand Part III. [pp. 896, 897]\n\nMagnitude of the Amending Power\n\nThe framers of the Constitution enacted article 368 for several l't2sons.\n\nFirst, the working of the Constitution may reveal errors and omissions which could not be foreseen by tlicm. Second, the Court's construction of the Constitu tion may not correspond with the Constitution makers' intention or may make the process of orderly government difficult.\n\nThird, the Constituent Assemblr which framed the Constitution was not eleetcd on adult franchise and was in fact not fully representative of the people. The Constitution makers conferred wry wide amending power on Parliament because it was believed that Parlia~ ment elected on adult .franchise would be fully representative of the entire>\n\n' '\n\nKESAVANANDA fl; KERA.LA (Dwivedi, J.) 71.\n\npeople and that such a Parliament should receive a right to have a fresh look\n\nat the Constitution and' to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self preservation.\n\nSelf preservation implies mutation, that is,. adaptation to changing environment. Article 368 is thus shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and politicaL conditions of its time.\n\nThe nature, object and history of the amending power and the context of article 368 leave little room for doubt that the word jamcndmcnt' includes the power of repcal, ing or abrogating each and every provision of the Constitution. It may be that Parliament may\n\nnot be able to annihilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions of Part III. The amending power in article 368 is unlimited and uncorifincd as the power of Constituent Assembly.\n\nIndeed it may truly be <aid that Parliamc.nt acts as a Constituent Assembly.\n\nState of Madras v. Champakam Dorairaian, [1951] S.C.R. 525 and Kamerhwar Singh v. State of Bihat', A.l.R. 1951 Patna n, referred to. [pp. 897 to 903]\n\nMeaning of 'law' in Article 13(2)\n\nThere is a distinction between Constitution and\n\n1law 1 • The context of the word 'law' in article 13(2) docs not show that it includes an amendment of the Constitution made under article 368.\n\nThe Constitution itself makes a distinction between 'Constitution' and 'law'.\n\nThe functional difference in making a legislative law and an amendment of the Constitution likewise'\" explains the basic difference in the procedure prescribed in articles I 07 to 111 and in article 368. An expansive construction of the word 'law' in article 13(2) would permanently rule out the lawful making of structural reforms in cl= social, economic and political frame of the Country. The Constitution makers must have intended that when a conflict arises between the rights in Part\n\nIII and the obligation of the State in Part IV that conflict may be resolved by an amendment of the Constitution under article 36a. The provisions of the Constitution show that fundamental rights may be taken away or abridged for the good of the people. The Constitution makers did not regard the rights mentioned in Part Ill as 'sacrosanct' or as 'inalienable' and 'inviolable' or as. immutable. The rights in Part Ill arc down right man made. [pp. 903 to 912]\n\nState of Madras v. Smt. Champakam Dorairaian, [1951 J S.C.R. 525, S.\n\nKrishnan v. State of Madras, [1951] S.C.R. 621 and Basheshar Nath v. Commis sioner of Income Tax, [1959] Supp. I S.C.R. 528, 604, 605, referred to.\n\nThere arc no inherent and implied limitations on amending power in article 368. The magnitude of the amending power is to be measured by the\n\npurpose which it i1 designed to achieve than by the structure of Parliamcnl.\n\nUnder the Constitution some legislative powers arc not subject to any inherent\n\nend implied limitations. Nor can implied limitations be spelt out of the vague emotive generalities of the Preamble. The Preamble is neither the source of power nor of limitations on power. Thescheme of article 368 is to recreate\n\nthe primary organs of state and to redefine, rcdcmarcate and rclimit their powers and functions if and when it becomes imperative to do so for the good of the people.\n\nAccordingly it must plainly have been the intention of the Constitution makers that article 368 should control and condition rather than\n\nbe controlled and conditioned by other provisions of Constitution. The Cons titution makers who were familiar with English Constitutional history\n\n72 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\ncould not conceivably have left undetermined the test of distinguishing the ci:scntial features from the non-essential features or their core.\n\nThe test is writ large in article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure.\n\nThe more rigid the procedure the more essential the provisions amendable thereby.\n\nThus the provisions specified in the proviso to article 368 are more essential th.an the rights in Part III. Article 368 places no express limits on the amending power. Indeed it expressly provides for its own amendment. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the constitution but not expressed in words. [pp. 912 to 919)\n\n\nJudicial Ret1iew of Constitut£onal amendments\n\nFrom Gopalan to Golaknath the Court has shifted from one end to the other end of the diagonal, from Parliament's supremacy to its own supremacy.\n\nAt the Centre of the Court's legal philosophy there is the rational free will of the individual.\n\nThis philosophy has entailed the subservience of the Directive Principles of State Policy to the Fundamental rights. Article 31(4) (5) and (6) -establish beyond doubt that the Constitution makers intended to give ascedancy to the Directive Principles of State Policy over the fundamental rights. The 'Constitution does not recognise the supremacy of this Court over Parliament.\n\nThe Court may test legislative laws only on the touchstone of authoritative no'rms established by the Constitution.\n\nIts procedural limitations aside, neither article 368 nor any other part of the Constitution has established in explicit language any authoritative norms for testing the substance of a Constitutional amendment. Structural socio-political value choices involve complex and complicated political process.\n\nThis Court is hardly fitted for performing that function.\n\nJudicial review of Constitutional amendments will blunt the peoples vigilance, articulateness and effectiveness. Unhedged amending, power will not endanger the interests of the religious, linguistic and cultural ininorities in the Country. Judicial review will only isolate the minorities from the mainstream of the democratic process. The argument of fear is not a valid argument. While construing the Constitution it should -be presumed that power will not be abused.\n\nIn the absence of explicit mandate the Court should abstain from strlking down a Constitutional amendment which makes an endeavour, to ·\"wipe out every tear from every eye\". In so doing the court will not be depart ing from but will be upholding the national tradition, [pp. 919 to 924;\n\nState of Madras v. V. G. Row, [1954] S.C.lt. 591, Virendra Singh and Ori.\n\n\nLaws Act, [1950] S.C.R. 519. State of West Bengal v. Anwar Ali Sarkar, '[1951] S.C.R. 747, 1079. referred to\n\nKESAVANANDA v. KERALA (Dwivedi, J.) 73\n\nThe Twenty Fourth Amendment\n\nExcept as regards the assent of the President to the Bill everything else 1n :the 24th Amendment was already there in the unamended article 368. Accord ingly the amendment is really declaratory in nature.\n\nIt removes the doubts a.st on the. amending power by the majority judgment in Golaknath.\n\nEven assuming -\"that the restrictions imposed by Article 13(2) and inherent and implied limitations were a part of the body of article 368 these restrictions are now removed by Parliament, for, they will fall within the an)bit of the word \"amendment\". The phrase \"notwithtsanding anything in this Constitution\" on the newly added cl. ( 1) of article 368 . is apt to sweep away all those restrictions. In the result the amending power is now free of the incubus of article 13(2) and inherent and implied limitations. [pp. 924 to 926]\n\nSection 2 of Twenty Fifth Amendment As the word compensation found place in the old article 31(2) this Court held that the principles should be relevant to compensation, that is, to the just equivalent of the property acquired.\n\nThat word is no more there now in article 31 (2). The notion of the relevancy of the principles of compensation is jettisoned by section 2.\n\nObviously, where the law fixes the amount it cannot be questioned in any court on the ground that it is oot adequate, that is, not equal to the value of the property acquired or requisitioned. The legislative choice is conclusive.\n\nIt would follow that the amount determined by the principles specified in the law is equally unquestionable in Courts. It is not permissible to import in the amended article 31(2) the notions of 'arbitrary amount' or 'illusory amount' or 'fraudulent amount'.\n\nAlthough the amended article 31(2) will abrogate the right of property it is constitutional as it falls within the scope of the 24th amendment. [pp. 926 to 931]\n\nState of West Bengal v. Mrs. Bela Baneri\", [1954] S.C.R. 558, Vairavelu\n\nv. Special Veputy Collector, Madras, [1965] I S.C.R. 614, Union v. Metal Cor\n\n\nSection 3 of the Twenty Fifth Amendment Under article 31C the Court still retains power to determine whether the law has relevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of fwealth and means of production. If the court finds that the law has no such relevancy, it_ will declare the law void if it offends the provisions of articles 14, 19 and 31.\n\nThe second part of article 31C excludes judicial review \"on the ground that [the law] does not give effect to such policy\".\n\nSo, the law cannot be challenged on the ground that \"the means adopted by the law arc not sufficient to subserve the common good and prevent common detriment.\n\nIn other words, the sufficiency of the law's <:fficacy alone is made nonjusticiable. [pp. 931 to 934 J\n\nAssuming that the Parliament may not delegate the Constituent power, Article 31C does not authorise the State legislatures and the Parliament as a legislative body to amend any part of the Constitution. The true nature and character of article 31C is that they arc in partial eclipse as regards laws having\n\nelevancy to the principles specified in article 39(b) and (c). Article 31C is 10 thic nature of a saving clause to articles 14, 19 and 31. The effect is brought about directly and immediately by the choice of the Constituent power expressed in article 31C itself and not by the laws which claim its protection. [pp. 934 to 936]\n\n74 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\n\n[On the contention that nationalisation of property IS not contemplated by the word 'distributed', his lordship did not express any final opinion on the meaning of word 'distributed' in article 39(b). He observed: [A] nationalised property is vested in the State. Throug1' the State the entire people collectively may be said to own property.\n\nIt may be said that in this way the ownership of the nationalised property is distributed amongst the people represented by the State.] [pp. 936, 937)\n\nConstitution Ttuenty Ninth Amendment\n\nThe argument that article 31B is inextricably connected with article 31A and accordingly any law which is included in the Ninth Schedule sh.ould be connected with agrarian reforms has been rejected by this Court. [pp. 937, 938]\n\n\nJce1bhoy v. Assistant Collector, Thana, (1965] 1 S.C.R. 636, 648, referred to.\n\nChandrachud, /. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 1000]\n\nThe Constitution Twenty Fourth Amnd, nent merely clarifies what itJas true law. Article 368 before the Twenty Fourth Amendment contained the power as weiJ as procedure for amendment of the Constitution. Article\n\n13(2) took in only ordinary laws, not amendments to the Constitution effected under article 368.\n\nThe power of amendment of the Constitution conferred by the then article 368 was wide and unfettered; it reached every part and provision of the Const:'tution.\n\nThe decision in Golaknath that Parliament had no power to amend the Constitution so as to abrogate or take away fundamental rights is incON\"ect. There are no inherent Jimita tions on the amending power in the sense that the amending hotly lacks\n\nthe power to make amendments so as to damaie or destroy the essential featum or the fundomenta/ principles of th• Constitution. [pp. 999', 1000]\n\nThe whole matter before the Court is truly sui gcnms. [p. 940]\n\nThe leading majority judgment in Golaknath did not decide whether article 368 itself could be amended so as to confer a power to amend every provision of the Constitution.\n\nThe case was decided on the basis oi the un amended article 368.\n\nThe question whether fundamental rights could be taken away by amending article 368 was not before the Court. Abo, the question whether in future Parliament could, by amending article 368 assume the power to amend every part and provilion of the Constitution wa1 not in issue before the Court. The observation in the leading majority judgment putting restraints on .the future power of Parliament to take away fundamental rights cannot, therefore, constitute the ratio of the majority judgment. The view taken by the majority of Judges in Golaknath was that article 368 pm• cribed not merely the procedure for amendment but conferred the power to amend the Constitution and the amending power could not be traCed to the Residuary Entry 97 of List !, Schedule VII read with articles 245, 246 and 248 of the Constitution. [pp. 960, 961 J\n\n(i) The various shades of meaning of the ord ·mendment' may app!y differently in different contexts.\n\nIn the context 1n whtch that word. rs 1n article 3681 it is neither ambiguous nor amorphous but has a definite unporl.\n\nIWAVANANDA ti. K.EllALA (Chandrachud, J.) 75\n\nThe proviso to article 368 furnishes intrinsic evidence to show th•t the word 'amendment' is used in that article, not in a narrow and insular sense but is,. intended to ha.ve the widest •mplitudc. The words \"such amendment\" obviously means '•mendment' referred to in the main body of article 368 and thus the article itself envisages that the amendment may take the form of 'change'.\n\nParagraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar evidence of the meaning of the word 'amendment'. . Two things emerge from these provisions of the Schedules. First, the concept\n\nof 'amendment' as shown by clause ( 1) of the Schedules takes in 'addition, vuiation or repeal' an, d secondly that an amcndmcntl even by way of \"addition, variation or repeal\" would fall within the terms of article 368. It is expressly\n\nexcepted from the scope of that article so that it may not fall within it which it otherwise would. Besides, the legislative history does not justify an inference that the word amendment was used in the draft article 304 in order to curtail the scope of the amending power. It is important that five out of eleven Judges in Golaknath took the view that the word 'amendment' must be given a wide meaning. The leading majority did not consider that question on the ground .that so. far as fundamental rights were concerned the question could be answered on a narrower basis. Thus the word 'amendment' in article 368 has a dear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power is so wide\n\ntliat it. exprellly confers a power by clause (e) of the proviso to amend the amending power itself.\n\nNo restraint having been imposed on the power to am.end the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution. The power of amendment i; a safety valve and having regard to its true nature and purpose\n\nit must be construed . as being equal to the need for amendment. The rule of\n\natrit construction is out of place in a Constitutional Act and a \"construction most beneficial to the widest possible amplitude\" of its powers must be adopted. [pp. 964 to 967]\n\n(ii) The Constitution is the fundamental or basic law and it is a law of superior obligation to which the ordinary law must conform. Unless cons~ titutional. law was , expressly included in article 13(~)a). it would fall outs.ide the purview of article 13(2). The fundamental d1Stmc11on between Constltu tional law and ordinary law lies in the criterion of validity. In the case of Constitutional law its validity is inherent; in the case of an ordinary law the Talidity has to be decided on the touch-stone of the Constitution. The majority view in Goloi(nath did not on the construction of art. 13(2), accord due importance to. thi. • s essential distinction between legislative power and the constituent .power.. The distinction between 'Bexible' and 'rigid' constitutions brings Into sharp focus the true distinction between legislative and Constituent power.\n\nThis is the diltinction which was . not given due importance by the majority ill the .GolawA case, .. In a rigid Constitution the power , to make law is the pus,. of which the legislative and constituent powers arc the speci.,, the dilfcrcritia being the procedure for amendment.\n\nIf the procedure is ordinary the powc~ ia. legislative; if it is special, the pawcr is constituent. Thus, in a rigid or controlled corutitution like the Indian Corutitution a law amending !11C Constitµtion .is made in the exercise of a constituent power and partakes fully of . the character of constitutional law. Laws passed under the Constitution of which the validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of article 13(2).\n\nAn amendment of the . Constitution within the terms of article 368, not being law within the meaning . .ol article 13(2), cannot become void on the ground that it take. •way or a!>rid~ the rights oonferred by Pan III. [pp. 970 to 973]\n\nMeCafllley v. TAe King, [1920] A.C. 691, referred to.\n\n76 SDPIUlMll .comi!r IUlPORn [1973] Supp . .&.e.ll.\n\n(iii) 1t is diBicuk to accept the argument that inherent limitations should be read into the amending power oo the . ground that fundamental rights are natural rights which inhere in every mn. There is intrinsic evidence in Part III <Jf the Constitution to show that the theory of natural rights was not recognised by the framers of the Constitution, Citizens and non-citizens possess and arc entitled to exercise certain rights of high significance ·for the -sole tcason that they are conferred upon them by the Constitution. The natural rights theory stands, by and large, repudiated today. The notion that societies and govetnments find their sanction on a supposeil contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. The Preamble is a part and a provision of the Constitution.\n\nTherefore the cootention that the Constitution cannoJ be amended .o as to <lestroy the pramble is untenable. [pp. 973 to 976]\n\nVenkataramana Devaru and Ors. v. The State of M)IStwe, antl Ors. [1958] S.C.R. 895, 919 view contra in Beru Bilri case, [1960j 3 S.C.R. 250, diwnu:d .lf'an.\n\nThe absen\" of an cxpr.ess prohibition is highly relevant for inferring that there is no implied ptohihitiao. h is not open r.o the Cowts to dceLate an Act void O:I?- the ground that it is opposed to a 'spirit' supposed to prcvade the constitution, but not manif.csted in words.\n\nThe importance of the cirCJJ.mlltance that the language of ar.ticle 368 admits of no doubt or ambiguitJ is\n\nthat such a language leaves no scope for implications unless in the autext of. the entire instrument in which it occurs such implications bcromc coropulsi'& The context docs not merely mean the position of a word to be COD$l1'UCd jp the collocation of words in which it appears, but it also mcam the cootext of the times in which a fundametal instrument falls to be construed. An impor tant rule of construction which has a direct bearing on the submiS1ionJ ot die\n\npetitioner on .inherent limitation's is that if the text is explicit it is conclusive alike in what it directs and what it forbids.\n\nThe consequences of a particular construction, il the text .be explicit, can !Mvc no impact on the construction o!. a constitutional provision.\n\nNo provision incorporated in 3 Constitution .at t1JP time of its origina1 enactment can ever he struck down as unconstitutiOllll.\n\nThe same test rnnst apply to what be.comes a part of that con.stitution by .' • subsequent axpcndment provided that the conditions on which alone , sucb amendments can be made arc strictly compiled with..\n\nAmendments, in .. nsc, pulsate with the itality of the Constitution itself. Trusi in lhc elected\n\nrepresentatives is the orner-stone of a .dcmoqacy. When that trust f~Us\n\nvcrything £.ails. _ The true .sanction against p0litical c_ t'lmes lies in the _ he~\n\nand minds of men, It is there that liberty is insured. The truo object \"the amendments, now under challenge, is to confer upon' the comitnuility . •\n\nlarge the blessings of liberty.\n\nThe argument is th:.at Par1iament may mi:Jl~ the provis.ions of Part Ill, but not_ so as to damage or .destroy the cor'c;.'of 'th!·. rights or the core of the essential principles of the eonstj:tion. ~'r~ ·~ formidable difficulties in evolving a, n objective standard_ to , termine w ''t would constil\\ltc the core and what the peripheral layer of die euctial ·rrJip1cf of the Constitution.\n\nThe two are inscparabte. The cases Qearintt .9r> inlicrcf, t <>r implied limitations cited from the United States, Canada, &strlia, Sou~\n\nAfrica and Ceylon do not show that the .theory of implied and il\\hcroDt limiC tations has rcoeived a wick recognition. [pp. 977 to 986]\n\nQueen v. BuraA, I.A. 178, 195, Bombay v. Nauratan Das /aitha Bai, fl!m1 2 S.C.R. 51, 81~ Sardar lnder Singh ~· State of RajasJhan, [1957] S.C.11. 616-17, Golapan s case, [1950] 6.C:R. 88, m, ifohau Malhao ll1.mi>n'1 ctur, {19)1] S.C.R. 228, 231,. V..,:A.,. do Sont \"· /..<Jlufon S.O,, y; l/f .tors,·\n\nUSAVANANDA 11. ltERALA ( Chmidracht\"l, J.) 77\n\n[1913] A.C. 107, 112, 117, 121, Attorn<y General for Ontario v. Attorney General for Canada, [1892] A.C. 571, Providence Bank v. Alpheus Billings, L. Ed. 939, 957, Locher v. New Ywk, 49 L. Ed. 937, Bank of Toronto v. Lambe, [1887] A.C. 573, 586, State of .Bihar v. Kameshwar Singh, [1952] S.C.R. 889, 936, 937, Collector of Customs, Baroda v. Digvijaisinghji Spinning & Weaving Mills Ltd., [ 1962] 1 S.C.R. 896, 899, Stati of West Bengal v. Union of India, [ 1964] 1 S.C.R. 371, 407, Essendon Corporation Case, [ 1947] 74 C.L.R. 1, 19, referred to,\n\n(iv) The debat<15 of the Constituent Assembly are not admissible as aid• to construction of constitutional provisions. It is hazardous to rely upon parlia mentary debates as aids to statutory construction. The safest course is to gatherthe intention of the legislature from the language it uses. Therefore Parliamen tary proceedings can be used only for a limited purpose as explained in Gopalan's case. [pp. 998, 999]\n\nGopalan's case, [1950] S.C.R. 88, 11(), Stat< of Travancore Cochin and Anr.\n\n\nSection 2(a} and (b) of the Twenty Fifth Amendment are ••lid. [p. 1000]\n\nThough Courts have no power to question a law described in article 31(2) substituted by s. 2(a) of the Twenty Fifth Amendment Act on the ground that the amount fixed or determined for compufsory acqulsition or rcquisitiol'l is not adequate or that the whole Or any part of such amount is to be- vcn otherwise than in caslii, Courts have the power to question such a law (i) if the amount fixed is illusory; or (ii) the principles,. i£ 'any are stated, for determining the amount arc wholly irrelevant for fiution of the amount; or-\n\n(iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of the Constitution other than the one. which . is expressly excepted undcc article 31(2B) introduced by secdon 2(b) of the Twenty F'ifth\n\nAmendment Act, namely article 19(1)(f); or (v) i£ t1'e law is in tire mlture of a fraud on the Constitution. It must be added by way of cxplanatiorr that i£ the fixation of an amount is shown to depend principles bearing on social good it rnay not be possible to say that the prmciples arc irrelevant.\n\n [pp. 987 to 989]\n\nSeetiOtJ 3 of t!e Twenty Fifth Amendment Act \">llich mtrorlucetl article 3lC into the C()flstitation is valid.\n\nThe Constitution accords a place of pride to fundalncntal rights and a. place of permanence to the Directive Principles of State Policy.\n\nThe basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subscrvc the common good. But, voluntary submission to restraints is a phil0sophcr's dream. Therefore article 37 enjoins the state to\n\napply the directive principles in making laws. The freedoms of a few have to be abridged in order to ensure the freedoms of all. [pp. 991, 992]\n\nArticle 31C operates substantially in the same way as article 31A hal operated in the agrarian sphere.\n\nIn fact article 31C is a logical , extension al the principles underlying article 31(4) and (6) and article 31A.\n\nArticle 31C does not dclegal!C the amending power. The true natute and character of article 31C is that it identifies a class of legi!lation and cumpts it from the operation of articles H, 19 and 3.1. The lal'l!Or PQit of artide 31C does not exclude the jurisdiction , f .. Court to dewminc whcthc1 doe law is far\n\n78 SUPREME COURT REPO, RTS ( 1973 j Supp. S.C.R.\n\n!l'vmg. effect to the policy of the state towards securing the principles specified m arl!cle 39(b) or (c). Laws passed under article 31C can be upheld only and only if there is a direct and reasonable nexus between the law and the Directive Principles expressed in article 39(b) or (c). [pp. 994 to 997]\n\nThe Twenty Ninth Amendment Act it valid. ·\n\nThe validity of article 31B has been accepted in a series of dcas1ons of this Court. These cases have consistently held that article 31B is not governed by. article 31A.\n\nThe Twenty Ninth Amendment must accordingly be held vahd. [p. 997] ·\n\nState of Bihar v. Kameshwar Singh, [1952] S.C.R. 889, Visweshwar Rao\n\nv. The State of Madhya Pradesh, [1952] S.C.R. 1020 and N. B. /eejeeQhoy v.\n\n\nA; jliiawata For the PetitiQflers : The crucial question tor decision is the true ambit of the amending power. The question can be decided either on the ground of the meaning of the word 'amendment' in the unamended article 368 or on the ground of inherent and implied limitations or on both the grounds since they converge on the same point.\n\nThe unamended article 368 was subject to article 13(2). Amendment of the Constitution is law and therefore, any law which contravenes ndamcntal rights is void.\n\nArticle 368 did not prevail over or override article 13. The bar in article 13(2) is imposed against the State i.e. against the totality of all the forces of the State.\n\nThe Preamble makes it clear that the . object of the Constitution is to secure basic human freedoms. This guilrantcc will be meaning\n\n\n[1967] 3 S; C.R. 377, 385, Behram Kurshid Pesikak.a\n\nv. State of Bombay, [1955] I S.C.R. 613, 651, 654. The proceedings before the Constituent Assembly support the petitioner's viewpoint. C.A. Debates, Vol. IV, pp. 415-416, 465, 466, Vol. IX p. 1661\". A creature of the Constitution cannot poSsibly possess the power to create or recreate the Constitution. Therefore, resort could not be had to article 368 to expand the power of amendment. It is imperative to consider the consequence of the plea of limited power and also the plea of limitless power. The test of the true width of a power is not hOw probable it is that it may be exercised but what can possibly be done under it. Ma:rwtlls Interpretation of Statutes 12 Edn. 1969 p. 105-106. Where the statute is ambiguous or susceptible to more than one meaning the c.onstruction which tend to make the statute unreasonable should be avoided. Crawford Oii Comtruction of Statutes 1940 cdn. pp. 286-290. Questions of OOJ1stitutinnal construction arc in the main governed by the same general principles whieh controt-\"m uocrtaining the meaning of all written instruments particularly statutes. Comtitutions arc general and many of the essentials whieh Constitutions ttoat are impliedly\n\nK.ESAVANANDA U. KERALA 79\n\ncontrolled or dealt with by them and implication plays a very important part in constitutional construction. What is implied is as much a part of the instrument as what is expressed.· A Court may look at the hi, story of tlie times and examine the state of things existing when the Constitution was framed.\n\nProceedings of conventions and debates are of limited value as explaining doubtful phrases. Am.,.ican /urisprudence, 2nd Vol. 16, article 5 pp. 231-232, article 72 p. 251, article 287 pp. 270-71. The word \"amendment\" may have three meanings: (i) It may mean to improve or better, to remove an error, the quality of improvement being oonsidered from the standpoint of the basic philosophy underlying the Constitution; (ii) it may mean to make changes which may not fall within the first meaning but which do not alter or destroy\n\nay of the basic or essential features of the Constitution and (iii) it may mean to make changes in the Constitution including changes falling outside the second meaning.\n\nThe first is to be preferred.\n\nThe second is a possible construction. The third is to be ruled out. Under article 368 as it stood prior: to the amendment there were implied and inherent limitations on the power of amendment. The word \"amendment\" would preclude the power to alter or destroy the essential features and the basic elcmCnts and the fundamental principles of the Constitution. The Constitution is given by the people unto themselves. The power to decide upon amendments is given to the five year parliament which is a creature of the constitution. Article 368 docs not start with the non-abstante clause. The itrticlc uses the word 'amendment' simplici'ter.\n\nLess significant amendment powers in other parts of the Constitution use the words\n\n04add, alter, . repeal or vary\" in addition to the word \"amendment\" as will appear in article 31B, 35(b), 252{2), 372, 372A(2), Para 7 Schedule 5,\n\nPart 21, Schedule 6. On a wide construction of the word \"amendment\" all fundamental rights can be taken away by the requisite majority whereas much Jess significant matters require the concurrenCc of at least half the states under the proviso to article 368.\n\nThe Preamble is not a part or provision of the Constitution. Berubari case, [ 1960] 3 S.C.R. 250. Therefore the preamble cannot be amended under article 368. If the Preamble is unalterable it necessarily follows that those features of the Constitution which arc necessary to give effect to the Constitution arc unalterable. Fundamental rights arc intended to give effect to the Preamble. They cannot therefore be abridged or taken away. The principle of inherent or implied limitations on power to amend a controlled Constitution stems from three basic_ features. First, the ultimate legal sovorcignty resides in the people. Secondly, Parliament is only a creature of the Constitution. Thirdly, the power to amend the Constitution or destroy the\n\nessential feature of the Constitution is an application of ultimate legal sovereignty. The essential features arc (i) the supremacy of the Constitution; (2) the Sovereignty of India (3) the integrity of the Country; (4) the democratic way of life; (5) the republican form of government; (6) the guarantee of basic human rights elaborated in Part III o£ the Constitution; (7) A secular state;\n\n(8) a free and independent judiciary; (9) dual structure of the Union and the States; (10) the balance between the legislature, executive and the judiciary; ( 11) a parliamentary form of government as distinct from the Presidential form of government; (12) article 368 can be amended hut cannot be amended to\n\nempower Parliament to alter or destroy any of the essential features of the Constitution, make the Constitution literally unamendable, make it generally amendabk by a bare majority in Parliament, confer the power of amendment i:ither expressly or in effect on the state legislatures, and delete the proviso ii1,1d deprive the States of the power of ratification which is today available to\n\nth~ in regard to certain amendments.\n\n• The•• Coiistltutioti Twenty Fourth amendment is illegal and void on three ds : First, by substituting the words \"amend by way of addition, variatiOD\n\nso SU1'REMI! COURT BEPORTS [ 1973 j Supp. S.c.R.\n\nor. repeal\" in place of the word\n\n11amcndmcnt\" in article 368 the power is widened. Secondly the 24th amendment makes explicit that when Parliament makes a cOnstitutional amendment uqdcr article 368 it acts in exercise of constituent power.\n\nThird, it. has provided bY amendment in article 13 and 368 that the power in article 13(2) against abridging or taking away of the fundamental rights. shall not apply to any amendment under article 368. The Twenty Fourth Amendmcir. is therefore to be construed as empowering the Parliament t~ exercise .full cons.tituent power of the people vesting in Par~ ment the ulumatc legal sovcrcignty of the people and authorising Paruamcnt\n\nto alter or destroy all or any of the essential features, bask elcmcnu and funcJa. mental principles of the Constitution. In the alternative, if the Constitution Twenty Fourth Amendment is valid it can only be on a reading down of tbc. amended provisions of article 13 and 368 which reading would preserve the original inherent and implied limitations.\n\nEven after the 24th amendment Parliament will have no power to alter or destroy the essential feature& of the Constitution.Hindu Women's Right to Property 4e1, [1941) F.c.R. 12, 21).32.\n\nR. M. D. Chamarbaugwalla v. Union of India, [1957] S.C.i. 930,. 931).3~.\n\nKedroath v. Stme of Bihar, (1962) Supp. 2 S.C.R. 769, 810-11, Arora v. so/ UP., [1964] 6 S.c.R. 784, 797, Shah & Co. v. Stall of MaAllTashtra, '19671 3 S.C.R. 466, 4n, SeshammaJ ~-State of Tamil Nadu, [19n] 2 S.C.C. 11, 22, 15.\n\nFundamental rights ate among: ti..- dSential features of the< Corutitudoo; Though the .... ntial features aoold be amended !ht rore of the .,..atial features ooold not be amended. Tlllll dottrine of implied or iabmnr limitatiom has received recognition in dcmo<ra~ constillltions. Ranui•, Ms a.., [1965] A. C. Jn, Taylor v. Attoniey General of Quenuland, 23 c.LJl. ID, l'ktomt Y. Commonw,./th, 45 Aust. I..J. 251, Ryan's case, 1935 Ir. !!<op. 170, Li10nt1t• v.\n\nQueen, [1967] 1 A.C. 259, Mangal s; ngh v. Union of lmila,.'[1%7J 2 $.CR; 109, Cooley on Constitutionlll Limitations) PP; 36, 37, Skin.nu, 18 Mich. L. Rev, Marbury William, 33 Harv. L Rev. The' Initiative to IUftrmJum '\"\"' [19191\n\nA.C. 35, Swilzman v. Elbing, [1957] Canada L. !!<op. 285, &it v. Hm [1949) 4 D.L.R. 199, Sa#ml4f v. Cay of (i#/N< 1111d Ammr; a.-aJ of QuNI:, [1953) 4 D.L.R, 6-tl, Chabot v. S<hool Cf1ffJmi1n'oturr, [195&] 12 D.L.IL 796. The Constitution ii giV<n. hr tLt \"'°\"\"' in tho of tboir -..eignty - themselves. [1954) S.C.R. 5~1, 555, [1%0) 3 S; CJl. 250, 281-32. The fnndo. mental rights arc m•rdy the esprasi<!o of the. batic freedoms resenod by the people for r.htmselvcs. T 1967) 2 S.C.R. 762, 7'>2, [1950] S.C.R. 88; 196. If .cbe freedoms arc reserved by the people for thtmsdtts all the fwlctiomrics. aod agencies under the CollStitution bave to rcspt<t t1'ooe boo.duns and a jyprnlwils\n\nno functionary or agtncy can dentoy those freedoms. ·\n\nApart from article 13(2} fundamental rights are ba.!Cd on Uni.ersal .. Ikc:- laration of Human Rights. They are inaliellable natural rights. nMnfore mo, are outside the scope of amendment. West Virgina Boartl of EtluellliMJ v~ '8\"\"'* nette, 1943 87 L. Ed. 1628, 1638, Everson v. B-d of Edr1eation, 330 U.S. l; 28, /oint Anti Fa<ist JUf. Comm. v. McGrath, 341 U.S. 123, 1711 , if,,,.,;,,;,• Comm. Assrx:. v. Douds, 339 U.S. 382. ·\n\nThe ground for holding the Twenty Fifth Amendment illeg:d mcf wic! is that even if the 25th aniCndment is held to be valid it can only be Oil rcstricred interprctatios of the power of amcndmcnt confcmd on, Parlianient by article 368 as altered by 24th amendment<, 'The rcstrid<d initt)>mation would be that even after the 24th amendmcnt, and evcn if the bot ol arcidc . 13(2) was validly lifted, the inherent and implied limitations continue ID iluach.\n\nID Parliament's \"\"\"\"'\"'*' po'Rr under Mticilo 368 with die reoulc, tliat (a)\n\nKESAVANANDA V. KERALA 81\n\nParliament would, have no power to alter damage or destroy the essential {oaturcs of the Constitution and (b) each fundamental right being an csscntial\n\nfeature of the Constitution, no constitution amendment can damage or dcstreyy the .., a: ar core of the fundamental rights. The right to property is one of the essential features of the Constitution.\n\nThe intrinsic value of the right, its necessity for the m<aningful exercise of various other fundamental rights and its importance to the proper functioning of the Constitution as a whole leave no doubt that right to property is one of the basic clements of our Constitution • .Article 31(2) as a result of Constitution T\\Venty Fifth Amendment will empower thC State to fix an amount on a basis which. need not be disclosed even to the members of the legislatnrc which posses the law and which may have no relation to ,.the value ; Of the PfOpcrty SQught to be acquired. Since \"amount\" is not a legal concept at all, unlike \"Coiµpcnsation\", there is no basic norm by re£crenoc to which the relevance or irrelevance of principles can be judged. The amended. article 31 in substance and effect authorises confiscation of any citizens• property. Such a law which has nothing to do with concentration of wealth and pcrtnits any citizens property to be . virtually confiscated involves destruction of the essence or core of the right to property. Article 31(2) has nothing to do with estates, 1.amindaris, Land Reforms or 3:grarian reforms which are specifically dealt with by article 31A and to which article .31(2). is wholly inapplicable. The other amendment of article 31 (2) that the amount' need not be paid in cash is in effect compounding the injustice.\n\nWhen article 19(5) permits roasonablc restrictions the only object of making article 19( 1) ( f) in\n\n\nArticle 31C destroys the core or csscnce of scveral esscntial features of the Constitution. There is a vital distinction between cases where the fundamental right> arc amended to iicrrnit laws to be validly passcd which would have been 'Toid before the amendment and cases where the fundamental rights' remain unamended but the laws which are void as offending those rights arc validated by a legal fiction that they shall not be deemed to be void. The question is not one merely of legislative device.\n\nThe law in the former case is constitutional in roality whereas in die latter casc the law is unconstitutional in roality but is deemed by a fiction not to be void. The result is that laws which violate the Constitution arc validated and there .is a repudiation of the Constitution. If article 31C is valid it would be permissible to Parliament to amend the Constitutio11 so as to declare all laws to be valid which arc passed by Parliamen:\n\nr State Legislatures in excess of lCgislativc competence or which violates basic human rights enshrined in Part III or the freedom of inter-slate trade in article\n\n301. Article 31C gives a blank charter to Parliament and the State Legislatures\n\nto defy the , constitution or damage or destroy the supremacy of the Constitution.\n\nThc article subordinates fundamental rights to Directive Principles. The Dirtttive Principles contained in Part N arc the ends of the endeavours or the people to achieve the constitutionally desired social order; the fundamental rights contained in Part III are the permissible means to achieve that end. One of the essential features of the Constitution is that the right to enforce the fundamental right> is guaranteed (Article 32). The Directive Principles arc not to enforceable. The fundamental rights arc clear cut and precise in contrast to the vague contours of the Directive Principles. To abrogate the fundamental rights when giving effect to the Directive Principles is to destroy one of the ascntial features of the Constitution. When an amendment of a single fnnda- 1111111tal right would require a majority .of at least twl> thirds of the members .\n\n6-36 s.c. lndia175\n\n82 SUPREME COURT REPORTS [1973] Supp. s.c.11..\n\nof Parliament present and .voting, a law within article 31C which overrides and violates several fundamental rights can be passed by a simple majority.\n\nEvery fundamental right is an essential feature of the Constitution and article 31C purports to take away a large number of those fundamental right!. ft provides for the wholesale smothering of various rights which are independent of the right to property and arc totally irrelevant to the Directive Principles laid down in article 39(b) or (c). The essence or core of the right to move the Supreme Court is gone when the fundamental rights arc made uncnfbrccablc for the purpose of giving effect to the Directive Principles and at the same time the Court is precluded from considering whether the law is such as can possibly secure the Directive Principles in question. No State Legislature can amend the fundamental rights or any part of the Constitution. It is one of the essential features of the Constitution that it can be amended only in the \"form and manner\" laid down in article 368 and according to that article's basic theme. Trethowan's case, [ 1932) A.C. 526. This. essential feature is repudiated by article 31C which empowers state legislatures to pass laws which virtually involve a repeal of the fundamental rights. In substance the power of amendment of the Constitution is deelgatcd to all the State legislatures. This is not permissible under article 368.\n\n[ 1919] A.C. 935, 945 (P.C.), [ 1967] 2 S.C.R, 650, 653-54, 659-60, [ 1951] Canada Law Reports 31, 37-38. Fundamental rights under articles 14, 19 and 31 which arc sought to be amended by article 31C arc necessary to make n.eaningful specific rights of minorities which arc guaranteed by articles 25 to 30. These guarantees arc essential features of the Constitution. The implication of the proviso to article 31(2) introduced by the 25th amendment is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. If a law violates the right of the minorities under articles 25 to 30 such a law would be no law. Therefore, deprivation of property under such a law would violate article 31(1) .. But the 25th amendment by article 3lC abrogates article 31(1) and minorities can be deprived of their properties, held privately or on public charitable or religious trusts, by law which violates articles 25 to 30. Thus article 31 C has built in mechanism for the dissolution of true dcmocracY that India has been so far, cessation of the rule of law. disintegration of the nation and the birth of a totalitarian regime.\n\nArticle 31B as originally inserted had intimate relation with agrarian reforms because at that stage article 31A dealt --0nly with agrarian reforms:\n\nfhc words \"without prejudice to the generality of the provisions contained in article 31 A\" point to this connection.\n\n\n718. Madhava Rao Scindia v. Union of India, [ 1971] 3 S.C.R. 9. The observation of the majority in Golaknath about the future exercise of power by Parliament arc clearly abiter. No ratio can be found in Golaknath which is binding on this Court. Salmond's Jurisprudence, 12 ed. 183. The basis of the judgment in Golaknath was the construction. put on the .unmnded article 368.\n\nThat basis having disappeared the reasoning of the ma1onty Judgment cease to apply.\n\nIf Golaknath is a binding. decision o? the question now before this Court that decision should be rcconS1dered. Articles 304 and 305 of the Draft CoDJtitution which would have thrown considerable light were not considered in ·\n\nKl!SAVANANDA f/, KE1lALA 83\n\n-any of the judgments, The decision of the Privy Council in Ranasinghe's case\n\n\nthe .proviSo did not receive full consideration in Golaknath. If the 24th. amendment is valid the validity of the subsequent amendments cannot be questioned.\n\nThe unamended article 368 has to he interpreted according to settled principles -0£ construction. The spirit of the Constitution must be gathered from the language used. Keshava Madhava Menon v. State of Eombay, [1951] S.C.R. 228, 232. Rajasuryapa} Singh v. State of U.P., [1952]\n\nS.C.R. 1056, 1067 (Mahajan, J.). A broad and liberal spirit must inspire those whose duty it is to interpret the Constitution. The Cout cannot stretch the language in the interests of any legal or constitutional theorr. In re: C. P. & Berar Act, XIV of 1938, [1939] F.C.R. 18, 36 (Gwyer, C.J.) referred to with approved in Gopalan's ca\", [1950] S.C.R. at p. 120. The language of article 368 raises no question about the applicability of article 13(2). The words 'amendment of this Constitution' mean amendment of the Constitution of India and would include article 368 itself. The proviso provides :£or such amendment.\n\nThe <JUestion of location of power of amendment is immaterial. When the prescribed procedure is followed the Constitution stands amended.\n\nWhat results is not 'law' but a part of the Constitution. The Court cannot pronounce any part of the Constitution invalid. The expression \"amendment of this Constitution\" has a clear and substantive meaning in the context of a written Constitution. It means the power to add, alter or repeal any part of the Constitution. The object of the provision for amendment is to change the fundamental or ha.Sic\n\nprinciples of the Constitution.\n\nOtherwise, the Constitution can be changed only by extra constitutional methods or by revolution. Short of substituting a new Constitution for the present Constitution all parts of the Constitution can be amended. The words of articlC 368 arc clear and unambiguous. They place no express limitation. Therefore no extrinsic aids to construction arc necessary.\n\nTo say that the framers of the Constitution could not have intended that fundamental rights should be abrogated or abridged by amendment is to assume a supposed intention and then construe article 368 to effectuate that intention. The words \"amendment of this Constitution\" do not mean repeal or abrogation of the Constitution. The scope of amendment could not be so wide as to create a vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. Short of creating such a vacuum the power is wide enough to cover a replacement of the present Constitution. Constituent power is different from legislative poWer and when constituent power is given it is , exhaustive leaving nothing uncovered. Liyange's case, [1967] 1 A.C. 259.\n\nThe amending. power under article 368 is a constituent power and not ordinary legislative power.\n\nWn a constitution is uncontrolled there is no distinction between legislative power and constituent power. McCaw/ey v. The King, [1920]\n\nA.C. 691, 703.\n\nOur constitution is a controlled constitution because the un~ amended article 368 prescribed a special procedure for amending the Constitution.\n\nSuch a Constitution is the supreme or fundamental law because an ordinary law made under it cannot amend the Constitution Ranuinghe'1 case [1965]\n\nA.C. 194.\n\nThere can he no standard outside the Constitution by reference to which the validity of its provisions can he judged. Sankari Prasad and Saii•• Singh rightly recognised th~ vital distinction between legislative and constituent\n\n84 SUPREME 'COURT fuoRTS [1973] Supp. s.c.i;'\n\npower. They rightly held that 'article 13(2) applied to legislative power and / not to constuent power. Ranasinghe's. case on which the leading majority in - Golaknath's case reliCd 'shows the effect of the words \"subject to -the provisions,/ of the Constitution\" when they qualify the power to make laws in the context of a. provision corersponding to article 13(2) and in the context of a power to amend the Constitution by a special procedure. If the Privy Council in Ranasinghe's case spoke of the power to amend as a legislative power or po\\.ver of law making, that was because s. 29 of the Constitution of Ceylon appears under the sub-heading \"Legislative power and procedure\". --The Privy Council noted the marked distinction between an ordinary law and an amendment of the Constitution by distinguishing a power to make a law by a bare majority from a power to make a law under the Coristitution by a different legislative process.\n\nRanasinghe's case bolds that fundamental right could not be taken away by a law passed by a bare majority; but eould be taken away by amending the Constitution with the requisite majority. On well settled principles of construction an interpretation which would effectuate the intention of the framers of the 'C6nstitution ought to be preferred to that which would defeat that intention. All suggestions as regards implied liffiitations on the power -to amend have been brushed aside by the U.S. Supreme Court by observing that where the intention is clear there is no room for construction and no excuse for interpolation or addition. U. S. v. Sprague, 282 U.S. 716, 731, Rhode Island\n\nv. Palmer, 253 U.S.· 350, 384 .. , ·\n\n.\")\" The language of article 368 is_ clear and unambiguous and requires no extrinsic aids to construction.\n\nQuestions of policy are not for the courts to decide. Emperor v. Benoari Lal Sarma, 72 I.A. 57, Gopalan's case, (1950] S.C.R. 88, 277.\n\nDiscussions of the Constituent Assembly are equally imrmissible aids . to legal construction. Tire Preamble throws no light on the amendability or otherwise of fundamental rights.\n\nIn amending the Constitution the amending body acts in the character and capacity of a conv_ention expressing the supreme will of the sovereign people and is unlimited in. its power save by the Constitution. Ex parte Kerby, 36 A.L.R. (Ann) 1451. The argument that amendments which touch the rights of the people must be by convention has been rejected by the U.S. Supreme Court ..\n\nArticle V of the U.S. Constitution is unambiguOus and where the intention is clear there is no room for conStruction. Rhode Island v. Palmer, 253 U.S. 350,\n\nU. S. v. Sprague, 282 U.S. 116. Principles of the Constitution can be changed under article V.\n\nSchneiderman v. United States, 320 U.S. 118.\n\n\nThe backgrou.nd in which article 368 was enacted by the Constituent Assembly show that any limitation -on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. The theory of implied and inherent limitations is based on a narrow and restricted meaning of the word\n\n1amendment' to suggest that basic features or the essential features of the Constitution cannot be damaged or destroyed. Preamble is an integral part of the statute .. The Preamble can be repealed. Craies on Statute, 6th Edn. 200.\n\nXESAVANANDA ti. KERALA 85\n\nHtdsbury 3rd edn. Vol. 36 p. 570. An amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vagu~ ground of inconsistency with Preamble.\n\n\n[1957] A.C. 436. Power is not conferred by the Preamble but must be found in the Constitution. Since 1951 when Sankari Prasad recognised unlimited power of amendment till the decision in GolaJcnath, in 1967, normal democratic\n\nroccss of the departments of the State fl!nctioned as provided by the Coo .. tltut1on.\n\nThe test of the existence 'of unlimited amending power is not the possible abuse of the power. Only if the words are ambiguous regard can be had the .consequences of the exercise of the power. Where more than one meaning ts possible the Court must give the construction which will ensure the harmonious working of the Constitution. Queen v. Burah, [1878] 3 A.C. 889. If the court is to\n\nfid ut each time the essential features or the core of the fundamental rights that\n\nw~U introduce chaos. Words conferring legislative power should be given their widest meaning. This rule applies a forticri to constituent power. Ryan's case,\n\n[1935] Ir. Rep. 170. If the positive power of \"amendment of this constitution\" in article 368 is restricted by raising th~ walls of essential features or oorc of essential features the clear intention of the Constitution makers will be nullified.\n\nNone has the power to say that any single provision is more essential than another or that the amending power under article 368 does not operate on any provision on the ground of alleged essentiality. When article 368 provides fo< \"amendment of this Constitution\" it means the whole constitution including every provision.\n\nThere is no foundation for the analogy that just as judges test reas.lnableness in law, judicial mind will find out the essential featufcs on the test of reasonableness. Reasonableness is an objective criterion because reason inheres in man as a human being. Proviso (e) to article 368 expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in the United States as to whether express limitations on Atticlc V of the U.S. Constitution itself rogarding equal suffrage of the states in the Senate could be amended, or the controversy in Australia as to whether section 28 of the Commonwealth Constitution itself could be amended since there was no express limitation on such amendment. The Constituent Assembly provided in Cl. ( e) to article 368 express and specific power of amendment of article 368 itself. The amending body under article 368 represents the will of the people. The concept of popular sovereignty is well settled in parliamentary democracy.\n\nIt means that the people express their will through their representatives elected by them at the general election as the amending body prescribed by the Constitution. In a democracy the majority has the right to embody its opinion in laws subject to the limitations imposed by the Constitution. It has the unlimited power to remove these limitations. Lochner v. New York, 49 L. ed. 937.\n\nThe amending power must be coextensive with the Power of Court to invalidate laws.\n\nThere is intrinsic evidence in Pai: III itself that our Constitution does not adopt the theory that fundamental rights arc natural rights or moral rights which every human being i.s at all times to have.\n\nThey are only social rights \"conferred\" on citizens by civilised •oc!cty at a given time and are therefore susceptible to change from time to tune (See article 19, 33, 34, 358, 359 and 13(2)). The unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations.\n\nThe theory is a repudiation of democratic process. Implications of limitation of power ought not to be imported from general concepts but \"!'ly from ~X press or necessarily implied limitatios (i.e. implied limitation without which\n\n' 86 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\na constitution cannot be worked). McCawley v. The Kini, [1920] A.C. 691.\n\nThe Canadian decisions cited relate only to the legislative competence of provincial legislatures to affect civil liberties like free speech, religion or to legislate in respect of criminal matters. They are not relevant for deter mi n1ng the amending power under the Constitution. So far as civil rights in Canada arc concerned it is noteworthy that the Canadian Bill of Rights, 1960, makes the rights therein dcfeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights.\n\nIf Shanti/al Mangaldas case had not been overruled in R. C. Cooper v.\n\nUnion of India there would have been no necessity of amending article 31(2).\n\nIf the word 1compensation' as it stood prior to the 25th amendment must mean equivalent in value in cash, then, concentration of wealth will remain unchanged and justice, social economic and political amplified in articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted.\n\nDirective principles have to be effectively implementtd in order to achieve the readjustment of social order. The Twenty Fifth Amendment protects law in one respect, namely, the amount payable to the owner is no longer to be measured by the standard of equivalent in value of the property acquired. The fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation.\n\nIn fixing the. amount the legislature will act on some prin ciplc. This is not because of any obligation arising frdm art. 31(2) but from the general nature of legislative power itself.\n\nWhatever the subject or the nature of legislation, it always proceeds on a principle, it is based on legislative policy.\n\nThe principle may include considerations of social justice.\n\nJudicial review on the ground of inadequacy of the\n\n14amount\" and the manner of payment is excluded by express language.\n\nNo other question is excluded.\n\nArticle 31C is an application of the principle underlying article 31 ( 4 ), 31(6) and 31A to the sphere of industry.\n\nArticle 31C creates a legislative field with reference to the object of legisla~ tion. The object of inserting article 31C is to free certain kinds of laws from the limitation on legislative power imposed by conferment of fundamental rights by Part Ill. As those rights arc justiciable under article 32 the only way of doing so is to exclude judicial review of legislation in respect of those la'°''S, The fear of discrimination is allayed by three safeguards.\n\nFirst and foremost is' the good sense of the legislature and the innate good sense of the community.\n\nThe second is the President's assent. The third is th.at in appropriate case it can be found as to whether there i9 any nexus between the law and the Dircc tive Principles sought to be achieved. The law enacted under article 31C will operate on \"material resources\", uconcentration of wealth\" and umeans of production\".\n\nThe legislative effort would generally involve (i) nationalisation of the material rcsources of the community and (ii) imposition of c.ontrol on the production supply and distribution of the products of key industries and essential commodities. It therefore impinges on a particular kind of cconol'IJ.!C system only.\n\nArticle 31C docs not delegate power to legislatures to amend the constitution.\n\nThere can implied amendment of the Constitution. Kariapper\n\nv. Waie Sinha, [1968] A.C.R. 717, 743.\n\nThis case was heard on the following dates : October 31, 1972, November I to 3, 6 to 7, 9, 13 to 16, 22 to 24, 27 to 30, 1972; IJ.ccmbcr 4 to 8, 13 to 14, 18 to 21, 1972; January 8 to 12, 15, 17 t0 19, 22 to 25, 29 to 31, 1973; February 1 to 2, 5, 12 to 13, 15 to 16, 19 to 21, 23, 26 to 28, 1973; March 1 to 2, 12 to 14; 15 to 16, 22 to 23, 1973.\n\n86a\n\nORIGINAL JURISDICTION: Writ Petition No. 135'of 1970 . • Petition under Article 32 of the Constitution of India for the en forcement of fundamental rights.\n\nWITH\n\nWrit Petitions Nos. 351 and 352 of 1972.\n\nWITH\n\nWrit Petitions Nos. 373 and 374 of 1972.\n\nAND\n\nWrit Petition No. 400 of 1972.\n\nFor the Petitioner (in W .P. No. 135/70) : M/s, N. A. Palkhivala, C. K. Daphtary, M. C. Chagla, Sol~ Sorabji, Anil B. Divan and K. T.\n\nHaridranath, Senior Advocates, (M/s. j. B. Dadachanji, B. G. Murdesh war, Anwarulla Pasha, Ravinder Narain, 0. C. Mathur, S. Swarup and S. I. Thakore, Advocates with them).\n\nFor Respondent No . . I (in W. P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maharashtra and Mr. M. M. Abdul Khadar, Advocate-General for the State of Kerala, (M/s. T. R. Andhyarujina and K. M. K. Nair, Advocates, with them).\n\nFor Respondent No. 2 (in W.P. No. 135/70): Mr. Niren De, Attorney-General of India and Mr. Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, Ram Panjwani and Miss Sumitra Chakravarty, Advocates, with them).\n\nFor the Advocate-General, State of Andhra Pradesh (in W. P. No. 135/70) : Mr. P. Ramachandra Reddy, Advocate-General for the State\n\nof Andhra Pradesh, (M/s. T. V. S. Narasimhachari and P. Parameshwara Rao, Advocates, with him). ·\n\nFor the Adovcate-General, State of Assam (in W. P. No. 135/70) : Dr. J. C. Medhi, Advocate-General for the State of Assam and Mr.\n\nMoinul Haque Chowdhury, Senior Advocate, (Mr. Naunit Lal, Advocate, with them).\n\nFor the Adovcate-General, State of Bihar (in W. P. No. 135/70) : Mr. Balbhadra Prasad Singh, Advocate-General for the State of Bihar (Mr. U. P. Singh, Advocate with him).\n\n86b\n\nFor the Advocate-General, State of /ammu and Kashmir (in W .P_ No. 135/70) : M/s. Y. S. Dharmadlllkari, Advocate-General and J. P.\n\nBajpai, Dy. Advocates.\n\nFor the Advocate-General, State of Madhya Pradesh (in W. P. No. 135/70) : M/s. Y. S. Dharmadhikari, Advocate-General and J. P. Bajpai, Dy. Advocate-General for the State of Madhya Pradesh, (Mr. I. N.\n\nShroff, Advocate, w; th them).\n\nFor the Advocate-General, State of Maharashtra (in W .P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maharashtra, M/s. T. R. Andbyarujina and S. P. Nayar, Advocates, with him).\n\nFor the Advocate-Genera/, State of Manipur (in W .P. No. 135) : M/s. R. N. Sachthey and S. K. Nancly, Advocates.\n\nFor the Advocate-Generd, State of Meghalaya (in W.P. No. 135/\n\n70) : Mr. Nirendra Mohan Lahiri, Advocate-General for the State of Megha!aya, (Mr. D. N. Mukherjee, Advocate, with him).\n\nFor the Advocate-General, State of Mysore (in W .P. No. 135/70) : Mr. R. N. Byra Reddy, Advocate-General, State of Mysore, (M/s.\n\nChandra Kant Urs, Govt. Advocates, Mysore and M. Veerappa, Advocate, with him).\n\nFor the Adovcate-General, State of Nagaland (in W .P. No. 135/\n\n70) : Mr. S. K. Ghose, Advocate-General, State of Nagaland, (M/s.\n\nNaunit Lal, H. K. Serna and A. R. Barthakar, Advocates, with him).\n\nFor the Advocate-General, State of OriJsa (in W .P. 135/70) : Mr.\n\nGangadhar Rath, Advocate-General, State of Orissa, (M/s. Gobind Das and B. Parthasarathy, Advocates, with him). l For the Advocate-General, the State of Puniab (in W .P. No. 135/ ~\n\n70) : Mr. R. N. Sachthey, Advocate.\n\nFor the Advocate-General, Stae of Raiasthan (in W .P. No. 135/\n\n70) : Dr. L. M. Singhvi., Advocate-General, State of Rajasthan, (M/s.\n\nK. Baldcv Mehta and Sobhagmal Jain Advocates, with him).\n\nFor the At!tlOCate-General, the State of Tamil Nadu (in W.P. No. 135/70) : Mr. S. Govind Swaminatha, Advocate-General, State of Tamil Nadu, (M/s. A. V. Rangam, N. S. Siram and Miss A. Subhahini. Advocates, with him).\n\nFor the Advocate-General, State of Uttar Pradesh (in W.P. No. 135/70) : Mr. S. N. Kakkar, Advocate-General, State of Uttar Pradesh. (Mr. 0. P. Rana, Advocate, with him).\n\nFor Intervener No. 1 (in W.P. No. 135/70) : Mr. Binaya~ Banerjee, Senior Advocate, (M/s. Somen Bose, Suprakash Baneqee a.nd G. S. Chatterjee, Advocate, with him).\n\n86c\n\nFor the Intervener Nos. 2 anJ 3 (in W .P. No. 135/70) : M/s. G. B; Raikar, S. S. Javali, R. L. Roshan and H. K. Puri, Advocates.\n\nFor Intervener Nos. 4 to 6 (in W .P. No. 135/70) : M/s. D. M. iParulekar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, Advocates.\n\nFor Intervener Nos. 7 & 8 (in W .P. No. 135/70) : Mr. Mahindra Nath Ghosh, Senior Advocate, (M/s. Sommcn Bose, Soi\\endra Sckhar Roy and G. S. Chatterjee, Advocates, with him).\n\nFor Intervener No. 20 (in W. P. No. 135/70) : Miss Lily Thomas, Advocate.\n\nFor Intervener No. 9 (in W.P. Nos. 135/70 & 373/72) : Mr. Anil Diwan, Senior Advocat:c, (M/s. J. B. Dadachanji, S. I. Thakorc, P. M.\n\nDanekar, D. M. Popat, M. L. Bhakta, Ravinder Narain and 0. C.\n\nMathur, Advocates.\n\nFor Intervener No. 10 (in W .P. Nos. 135/70 & 373/73f :· MJs.\n\nN. A. Palkhivala and Basudev Prasad, Senior Advocates, (1!K/s., J. 'B.\n\nDadachanji, S. I. Thakore, P. M. Dandekar, D. M. Popat, M. L.\n\nBhakta, Ravinder Narain and 0. C. Mathur, Advocates, with them).\n\nFor Intervener Nos. 11 to 19 (in W .P. Nos. 135/70 & \"173/72) : M/s. N. A. Palkhivala and Anil Diwan, Senior Advocates, (M/s. S. I.\n\nThakore, P. M. Dandekar, D. M. Popat, M. L. Bhakta, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur and S. Swarup, Advocates, with them) .\n\n.. , For the Petitioner (in W .P. No. 351/72) : M/s. N. A. Palkhivala, M. C. Chagla and Soli Sorabji, Senior Advocates, M/s. B. G. Murdeshwar, J. B. Dadachanj~ Ravinder Narain, 0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with them).\n\nFor the Petitioner (in 1 W .P. No. 352/72) : Mr. Soli Sorabji, Senior Advocate, (M/s. B. G. Murdeshwar, J. B. Dadachanji, Ravindcr Narain,\n\n0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with him).\n\nFor Respondent No. 1 (in W .P. No. 351/72) : M/s. Nircn De, Attorney-General of India and Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. G. l. Sanghi, R. N.\n\nSachthcy and B. D. Sharma, Advocates, with them), For Respondent No 1 (in W .P. No. 352/72) : (M/s. Nircn De, Attorney-General of India, Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. R. N. Sachthcy and B. D.\n\nSharma, Advocates, with them).\n\nFor the Advocate-General, State of Andhra Pradesh (in W. P.\n\nNos. 3;1-352/72) : Mr. P. Ramachandra Reddy, Advocat:c-Gcneral, State of Andhra Pradesh, (M/s. G. Narayana Rao and P. Paramcshwara Rao, Advocates,. with him).\n\n86d\n\nFor the Advocate-General, State of Bihar (in W .P. Nos. 351-352/ i2) : Mr. Balbhadra Prasad Singh,. Advocate-General, State of Bihar,.\n\n(M/s. Radha Raman, Jai Narayan and U. P. Singh, Advocates, with. him).\n\nFor the Advocate-General, State of Manipur (in W .P. Nor. 351-· 352/i2) : Mr. N. Ibotombi Singh, Advocate-General, State of Mnipur,.\n\n(M/s. S. K. Nandy and R. N. Sachthey, Advocates, with him).\n\nFor the Advocate-General, State of Orissa (in W .P. Nos. 351-352/ i2) : Mr. Gangadhar Rath, Advocate-General, State of Orissa, (Mr_ G. S. Chatterjee, Advocate, with him).\n\nFor the Advocate-General, State of Punjab (in W .P. Nos. 351- 352ji2) Mr. R. N. Sachthey, Advocate .\n\n. , For the Intervener No l (in W .P. No. 351/72) : Intervener appearaf in person and later Mr. Basudeo Prasad, Senior Advocate, (Mr ..\n\nN. N. Sharma, Mvocate, with him).\n\nFor the .Intervener No. 2 (in W .P. No. 351/72) : M/s. Santok: Singh and V. Mayakrish, nan, Advocates.\n\nFor the Petitioner (in W.P. No. 373/72) : Mr. C. K. Daphtary,.\n\nSenior Advocate, M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S. Swarup, Advocates, with, him). '\n\nFor the Petitioner (in W.P. No. 374/72) : M/s. M. C. Chagla and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari, S. Swarup and' Mrs. N. A. Palkhivala, Advocates, with them).\n\nFor Respondent No. 1 (in W .P. No. 373/72) : M/s. Niren De,.\n\nAttorney-General of India, Lal Narain Sin~1a, Solicitor-General of India and M. K. Ramamurthy, Senior Advocate, (Mr. R. N. Sachthey, Advocates, with them).\n\nFo1 Respondent No. 1 (in W.P. No. 374/72) : M/s. Niren De, Attorney-General of India, and Lal Narain Sinha, Solicitor-General of India (M/s. R. H. Dhebar, R. N. Sachthey and B. D. Sharma, Advocates, with them).\n\nFor the Petitioner (in W.P. No. 400/72) : M/s. N. A. Palkhivala and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B.\n\nDadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S.\n\nSwamp, Advocates, with them).\n\nFor Respondent No. l (in W.P. No. 400/72) : M/s. Niren De, Attorney-General of lnrlia, Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, S. P. Nayar and S. N. Prasad, Advocates, with. them).\n\nTm FoLLOWING JuDGEMENTS WEllE DELIVERED: 87\n\nSna1, C. J. : I propose to divide my judgment into eight parts.\n\nPart I will deal with Introduction; Part II. with interpretation of Golakhnath' case ; Part III with the interpretation of the original article 358, as it existed prior to its amendment ; Part IV with the validity of the Constitution (Twenty-fourth Atnendment) Act; Part V with the validity of s. 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of s. 3 of the Constitution (Twenty-fifth Atnendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with .conclusions.\n\nPART I-Introduction\n\nAll the six writ petitions involve common questions as to the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ fetition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on Match 21,\n\nJ.970 under Article 32 of the Constitution for enforcement bf his fundamental rights under Articles 25, 26, 14, 19(1)(£) and 31 of thc- Constitution. He prayed that the provisions of the Kerala Land Rorms Act, 1963 (Act 1 of 1%4) as amended by the Kerala Land Reforms\n\n(Atnendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule' nisi on March 25, 1970.\n\nDuring the pendency of the writ petition, th~ Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1'971. The petitioner filed an application for permission to urge additional grounds and to impugn the constitutional validity of the Kernla Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 19'll). ·\n\nIn the meantime, the Supreme Court by its judgment datqd April 26, 1971 in Kunjukutty Sahib v. State of Kerala( 1 ) upheld the majority judgment of the Kerala High Court in V. N. Narayanan Nair v. State of Kerala(2) whereby certain sections of the Act were struck dwn.\n\n(1) {1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of• 1971). judgment dated April 26, 1971.\n\n( 2 ) A.LR. 1971 Kerala 98.\n\n118 SUPREME COURT JlEPOllTS ( 1973] Supp. S, CJl,\n\nThe. Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution {Twenty-ninth Amendment) Act came into force on June 9, 1972.\n\nThe effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Aots in the Ninth Schedule to the Consti~\n\ntution :-\n\n\"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kera la Act 35 of 1969). 66. The Kera la Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).\"\n\nThe petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above constitutional amendments.\n\nThe Court allowed the application for urging additional grounds .and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take .such part in the proceedings as they may be advised.\n\nWhen the case was placed before the constitutional bench, it referred this case to a larger bench to determine the validity of the impugned constitutional amendments.\n\nSimilar orders were passed in the other writ petitions.\n\nThe larger bench was accordingly constituted. It was then felt :that it would be necessary to decide whether I. C. Golak Nath v. State .of Punjab(') was rightly docided or not. However, as I see it, the .question whether Golak Nath's(') case was rightly decided or not .docs not matter because the real issue is different and of much greater :importance, the issue being : what is the extent of the amending power conferred by art. 368 of the Constitution, apart from art. 13(2), on Parliament ?\n\nThe respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expre9Sion, freedom to form .associations or unions, and freedom of religion. They claim that demo- cracy can even be replaced and one-party rule , established. Indeed, short of repeal of the Constitution, any form f Government ~.ith 1_10 freedom to the citizens can be set up by l'arhament by exerosmg its powers under art. 368.\n\nOn the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsi.st for ever\n\n( 1 ) [19671 2 S. C.R. 762.\n\nUSAVANANDA II. KEIW.A (Sikri, C.J.)\n\nand the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned art. 31C which has been inserted by the Twenty-fifth Amendment. If article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constituti.on, will determine how much freedom is good for the citizens.\n\nThese cases raise grave issues. But however grave the issues maybe, the answer must depend on the interpretation of the words in art. 368, read in accordance with the principles of interpretation which. arc applied to the interpretation of a Constitution given by the people to themselves.\n\nI must interpret art. 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and\n\nhopes, and other relevant circumstances. No other constitution in the world is like ours. No other constitution combines under its wings. such diverse peoples, numbering now more than 550 millionsrwith different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such. vast socio-economic problems.\n\nI need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was . directed to be further carried out by the appl'ication of directive principles.\n\nPART II-Interpretation of, Golak Nath's Cate.\n\nBefore proceeding with the main task, it is necessary to ask : what was decided in J. C. Golak Nath v. State of Punjab(') ? In order t<> properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar(\") and Sajjan Singh v. State of Rajasthan(')\n\nThe Constitution (First Amendment) Act, 1951, which inserted inter alia Arts. 31A and 31B in the Constitution was the subject matter of decision in Sankari PraraJ' s(') case. The main argument~\n\n(•) (1961] 2 S.C.R. 762.\n\n( 1) (1965] I S.C.R. 933.\n\n(2) (1952] S.C.R. 89.\n\n'90 SUPREME COURT REPORTS ( 1973) Supp. S.C.ll,\n\nrelevant to the present case wh:ch were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as .follows :\n\n\"First, the power of amending the Constitution provided for under article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under article 379.\n\nFourthly, in any case article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in article 368.\n\nFifthly, the Amendment Act, in so far as it purports to take away or abridge the righs conferred by Part III of the Constitution, falls within the prohibition of article 13(2)\".\n\nx x x x x\n\nAs stated in the head note, this Court held :\n\n\"The provisional Parliament is competent to exercise the power of amending the Constitution under Art. 368. The fact that the said article refers to the two &uses of the Parliament and the President separately and not to the Parliament, docs not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.\n\nThe words \"all the powers conferred by the provisions of this Constitution on Parliament\" in Art. 379 are not confined to such powers as could be exe.rcised by the provisional Parliament consii>ling of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Art. 368.''\n\nI may mention that Mr. Seervai contends that the conclusion just mentioned was wrong anil that the body that amends the Constitution under Art. 368 is not Parliament.\n\nThe Court further held :\n\n\"The view that Art. 368 is a eomplete code in itself 'in respect of the procedure providtd by .it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has\n\nKESAVANANDA I'. KEJW.A (Sikri, C.J.) 91\n\nbeen introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Art. 368 and would be invalid, is erroneous.\n\nAlthough \"law\" must ordinarily include constitutional law there is a clear demarcation between ordinary law whi<:h is made in the exercise of legislative power and constitutional law, which is made in the exercise of constituent power. In the context of Art. 13, \"law\" must be taken to mean rules or regulations wade in exercise of ordinary legislative power and not amendments to the constitution made )n the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.\"\n\nAlthough the decision in Sankari Prasad' s(') case was not challen ged in Sajjan Singh' s(2) case, Gajendragadkar, c. J. thought it fit to give reasons for expressing full concurrence with that decision.\n\nThe only contention before the Court was that \"since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III, the bUI introduced for .the purpose of making such an :unendment, must at!tract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid\". According to Gajendragadkar, C.J. \"that raised the questii>n about the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso.\"\n\nThe Chief Justice came to the conclusion that \"as a matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part Ill without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.\"\n\nThe learned, Chief Justice thought that the power to amend in the context was a very wide power and it could not be controlled by the literal dictionary meaning of the word \"amend\". He expressed his agreement with the reasoning of Patanjali Sastri,' J. regarding the applicability of Art. 13(2) to Constitution Amendment Acts passed ·\n\nunder Act. 368. He further held that when Art. 368 confers on ' Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that \"if the Constitutio,1-makers had intende<; l that any future amendment of the\n\n( 1) [1952] S.C.R. 89.\n\n{ 2) [!965] I S.C.R. 933.\n\n92 SUPREME COURT REPORTS ( 1973) Supp. ~.C.R.\n\nprovisions in regard to fundamental rights should be subject to Art. 13(2), they would have taken the precaution of making a clear provision in that behalf.\"\n\nHe seemed to be in agreement with the following observations of Kania, C.J. in A. K. Gopalan v. The State of Madras(') :\n\n\"the inclusion of article 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has a\\Ways the power to declare the enactment, to the extent it transgresses the limits, invalid\".\n\nHe was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in tliis country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended.\n\nAccording to him, it was legitimate to assume that the Constitul!ion-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the probkms which may arise in the course of socio-economic progre55 and development of the country.\n\nHidayatullah, J., as he then was, agreed with the Cl\\:ief Justice that the 17th Amendment was valid even though the procedure laid down in the proviso to Art. 368 had not been followed. But he expressed his difficulty in accepting the part of the reasoning in Sonkari Prasad's(') case.\n\nHe observed as follows :\n\n\"It is true that there is no complete defini, tion of the word \"law,. in the article but it is significant that the definition does not seek\n\nto exclude constitutional amendments which it would have been easy to indicate in the definition by adding \"but shall not inc111Je\n\n1zn amendment of the Constit11tion\". (p. 958).\n\nHe further observed : \"The meaning of Art. 13 thus depends on the sense in which the word \"law\" in Art. 13(2) is to be understood. If an amendment can be said to fall within the term \"law\", the Fundamental Rights become \"eternal and inviolate\" to borrow the language of the Japanese Constitution. Article 13 i& then on par with Art. 5 of the American Federal Constitution in its immutable prohibition as 1011g as it stands.\" (p. 958). ·\n\n(1) [ 1950] S.C.R. 88 at p. 100.\n\n( 2) [1952] S.C.R. 89.\n\nKESAVANANDA V, KERALA (Sikri, C.j.) 93\n\nAccording to him \"Our Preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) then to the preamble to the Constittµion of the United States. It does not make any grant of power but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV. Is it !lo be imagined that a two-thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States ? It is not even included in the proviso to Art. 368 and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Art. 368.\"\n\nHe further observed :\n\n\"I would require stronger reason than those given in Sankari Prasad's .case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States.\"\n\nHe held:,-\n\n\"What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment ......................... .\n\nThe Constitution gives so many assurances in Part Ill that it would be difficult to think that they were the play-things of a special majority. To .hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand.\"\n\nMudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad's case was rightly decided. He thought :\n\n\"The language of Art. 368 is plain enough to show that the action of Parliiament in amending the Constitution is a leg'islative act like one in exercise of its normal legislative power. The only difference in respect of an amendment of the Constitution 'is that the Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amedments which do not attract the proviso to Art. 368). The result of a legislative action of a legislature cannot be other than 'law' and, therefore, it seems to me that the fact that the legislation deals with the amendment of a provision of the Constitution woul\\l not make its result any the less a 'law'.\" 7-36 S. C. Jnd; a/73\n\n94 ' SUPREME COURT REPORTS (1973] Supp. S.C.ll.\n\nHe observed :\n\n\"It is true that the Constitution does not directly prohibit the amendment of Part III. But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution ( vide Art. 32) should be more easily capable of being abridged or restricted than any of the matters referred to in the prov'is0 to Art. 368 some of which are perhaps less vital than fundamental rights. It is possible, as suggested by my learned brother, that Art 368 merely lays down the procedure to be followed for amending the Constitution and does not confer a power to amend the Constitution which, I think, has to be ascertained from the provision sought to be amended or other relevant provisions or the prcimble.\"\n\nLater, he observed :\n\n\"Above all, it formulated a solemn and dignified preamble which appears to be. an epitome of the basic features of the Constitution.\n\nCan it not be said that these are indica of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution ?\"\n\nHe posed a further question by observing :\n\n\"It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the.\n\nConstitution; and if the latter, would it be within the purview ot Art. 368 ?\"\n\nHe th<>n stressed the prime importance of the preamble :\n\n\"The Constitution indicates three modes of amendments and assuming that the provisions of Art. 368 confer power on Parliamentt to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, that power ~\n\nbe exercised with respect to any of the basic features of the .Constitution.\n\nTo illustra~ my point, .as long as the words 'sovereign democratic\n\nrepublic' are there,. could the Constitution be atl)ended so as to depart from the democradc form of Government OF im . republic character? If. that cannot be done, then, as long as W91\"dt\n\n\"JuStlc.e, social, economic and political etc.,\" arc there. d any of the rjghts enumera~ in. Arb. 14 to 19, 21, 25, 31 ; llld. 32 be . taken away ? If they cannot, it will be for consicferatioo :whether they can . be modified. · ·\n\nKESAVANANDA ti, KllALA (Sikri, C.J.) 95\n\n\"It has been said, no doubt, that the preamble is not a part of our Constitution. But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution.\n\nWhile considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. .It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?\" ·\n\nComing now to Golak Nath' s case, the petitioner had challenged the valid.ity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14\n\nI of 1%5.\n\nIt was urged before the Court that Sankari Prasad's(') case in which the validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh's( 2 ) case in which the validity of the Constitution (Seventeenth Amendment) Act was in question had been wrongly decided by this Court. ·\n\nSubba Rao, C.J. speaking for himself and 4 other Judges summarised the conclusions at page 815 as follows :\n\n\"The :if oresaid diocussion leads to the following results :\n\n(!) The power of the Parliament to amend the Constitution iB\n\nderived from Arts. 245, 246 and 248 of the Constitution and not from Art. 368 thereof which only deals with procedure.\n\nAmendment is a legislative process .\n\n(2) Amendment is 'law' within the meaning of Art. 13 of the Constitution and, therefore, if it take$ away or abridges the rights conferred by Part III thereof, it is void.\n\n(3) The Constitution (First Amendment) Act, .1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.\n\n( 1) (19521 S. C.R. 89.\n\n(1) (1965) 1 S. C. R. 933.\n\n96 SUPREME COURT REPORTS ( 1973) Supp. S.C.R.\n\n( 4) On the application of the doctrine of 'prospective over-ruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.\n\n(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constirution so as to take away or abridge the fundamental rights enshrined therein.\n\n(6) As the Constirution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Arts. 13, 14 or 31 of the Constirution.\"\n\nIt must be borne in mind that these conclusions were given in the light of the Constirut:ion as it stood then i.e. while Art. 13(2) subsisted in the Constirution. It was then not necessary to decide the ambit of Art. 368 with respect to the powers of Parliament to amend Art. 13(2) or to amend Article 368 itself. It is these points that have now to be decided.\n\nIt may further be observed that the Chief Justice refused to express an opinion on the contention that, in exercise of the power of amendment, Parliament cannot destroy the fundamenta \\ structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation.\n\nAs will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act. 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1 ) or Art. 248 of the Constirution to Art. 368, is valid; in other words Art. 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constirution. ·\n\nI will also not discuss the merits of the second conclusion as the same result follows In this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Art. 13(2) of the Constitution.\n\nHidayatullah, J. as he then was, came to the following conclusions at page 902:\n\n\"(i) that the Fundamental R:ights are outside the amendatory process if the amendment seeks to abridge Oii take away any of the rights;\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 97\n\n(ii) that Sankari Prasad's case (and Sajjan Singh's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Arts. 13(2) and 368. .\n\n(iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the seventeenth Amendment;\n\n(iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part lII in general and Arr. 13(2) in particular;\n\n( v) that for abmlging or taking away Fundamental Rights, a Constituent body will have to be convoked; and\n\n(vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1.953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of !965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Act. 31-A, and the President's assent.\"\n\nI am not giving his reasons for these .conclusions here because they w'ill be examined when dealing with the arguments addressed to us on various points.\n\nWanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that Sankari Prasad's(') case was correctly decided and the majority in Sajja11 Singh's(') case was correct in following that decision.\n\nBachawat, J. held :\n\n( 1) Article 368 not only prescribes the procedure but also gives the power of amendment;\n\n(2) Article 368 gives the power of amending each . and every provision of the Constitution and as art. 13(2) 1s a part. of the Constitution it is within the reach of the amending power;\n\n( 1) [1952] S.C.R. 89.\n\n\n98 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.\n\n(3) Article 368 is not controll!ed by art. 13(2) and the prohibi-.\n\ntory injunction in art. 13(2) is not attracted against the amending power;\n\n(4) Constitutional amendment under art. 368 is.not a law within the meaning of art, 13(2);\n\n(5) The scale of value embodied in Parts III and IV is not immortal. Parts III and IV being parts of the Constitution arc not immune from amendment under art. 368. Constition-makers could not have intended that the rights conferred by Part III could not be altered by giving effect to the policies of Part IV.\n\n(6) The Preamble cannot control the unambiguous language of the articles of the Constitution.\n\nRegarding the amendment of the basic features of the Constitution, he observed :\n\n\"Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government, the federal structure and the fundamental rights were some of the features. The Sevonteenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, arid the question whether they can be touched by amendment does not arise for decision. For the purposes of these cases, it is sufficient to say that tho fundamental rights arc within the reach of the amending power.\"\n\nRamaswami, J., held :\n\n( l) The amending power under art. 368 is sui generis ;\n\n(2) \"Law\" in Art. 13(2) cannot be construed so as to include\n\n \"Lw\" made by Parliament under Arts. 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21.\n\n(3) The expression \"fundamental rights\" does not lift the fundamental rights above the constitution itself;\n\n(4) Both the power to amend and the procedure to amend a~\n\nenacted in art. 368.\n\n(5) There were no implied limitations on the amending power and all articles of the Constitution were amendable either under the proviso of art. 368 or under the main part of the article.\n\n(6) The Federal structure is not an essential part of our Constitution.\n\nKl!SAVANANDA ti. KERALA (Sikri, C.J.) 99\n\n(7) The power of amendment is in point of quality an adjunct of sovereignty. If so, it does not admit of any limitations.\n\nIn btjef 6 Judges held that in view of Art. 13(2) Fundamental Rights could not be abridged Qr taken away. Five Judges held that Art. 13(2) was inapplicable to Acts amending the Constitution.\n\nPART III-Interpretation of art. 368 Let me now proceed to interpret Art. 368. Article 368, as originally enacted, read as follows :\n\n;'An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :\n\nProvided that if such amendment seeks to make any change in-\n\n(a) article 54, article 55, article 73, article 162 or article 241, or\n\n(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of\n\nPart XI, or\n\n(c) any of the Lists. in the Seventh Schedule, or\n\n( d) the representation of States in Parliament, or\n\n( e) the provisions of this article,\n\nthe amendment shall alio require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to' the President for assent.\"\n\nIt will be noticed that art. 368 is contained in a separate part and the heading is \"Amendment of the Constitution\", but the marginal note reads \"Procedure for amendment of the Constitution\".\n\nThe expression \"amendment of the Constitution\" is not defined or expanded in any manner, although tn other parts of the Constitution, the word \"Amend\" or \"Amendment\" has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning ..\n\nThe proviso tht ows some light on t.he problem. First, it uses the CX pression \"if such amendment seeks to make any change in\"; it does not add the words \"change of \", or omit \"in\", and say \"i;, ks t<> change\" instead of the expression \"seeks to make any change m ·\n\n1.00 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nThe articles which arc included in the proviso may be now considered. Part V, Chapter I, deals with \"the Executive\". Articl~2. provides that there shall be a President of India, and art. 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to art. 368 but arts. 54 and 55 are mentioned.\n\nArticle 54 provides :\n\n\"54. The President shall be elected by the members of an electoral college consisting of-\n\n( a) the elected members of both Houses of Parliament; and\n\n(b) the elected members of the Legislative Assemblies of the States.\"\n\nArticle 55 prescribes the manner of election of the President.\n\nWhy were arts. 52 and 53 not mentioned in the proviso to art. 368 ]f the intention was that the States would have a say as to the federal structure of the country i One of the inferences that can be drawn is that the constitution-makers never contemplated, or imagined that Art. 52 wi]ll be altered and there shall not be a President of India. In other words they did not contemplate a monarchy being set up in India or there being no President.\n\nAnother article which has been included in the proviso to art. 368 is art. 73 which deals with the extent of executive powers of the Union.\n\nAs far as the Vice-President is concerned, the States have been giYen no say whether there shall be a Vice-President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the \"States\",\n\nthe only provision which is mentioned in tihe proviso to art. 368 is art. 162 which deals With the extent of executive power of States. The appointment of a Governor, conditions of service of a Governor, and the constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business arc not. mentioned at all in the proviso to art. 368. Another article which 1s mentioned in cl. (a) of the proviso to art. 368 is art. 241 which originally dealt with High Courts for States in Part C of the First Schcuble.\n\nChapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of. Part VI which deals with the High .Courts in the State are included in the proviso to art. 368 but it is extra, ordinary that Chapter VI of Part VI which deals with subordinate Judiciary Is not mentioned in clause (b ). Chapter I of Part XI is included and this deals with the Legislative Relations between the\n\n' I\n\nIQ!MVANANDA \"· IWW.A (Sikri, C.J.) 101\n\nUnion and the States, but Chapter II of Part XI which deals with Administrative Relations between the Union and the States, and vari- . ous other matters in which the States would be interested arc not included. Provisions relating to services under the State and Trade and\n\nCommerce arc also not included in the proviso.\n\nThis analysis of the provisions contained in clauses (a) and (b) of the proviso to art. 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been sclc~ for inclusion in the proviso.\n\nClause (c) of the proviso mentions the Lists in the Seventh Schedule, clause ( d) mentions the representation of States in Parliam.ent,\n\nand clause ( c) the provisions of art. 368 itscl£. The provisions of subclauses (.c), (d) and (c) can rfghdy be said to involve the . federal structure and the rights of the States.\n\nWhat again is remarkable is that the fllndamental rights arc not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of art. 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part IIJ and any law made in contravention of this clause shall to the extent of the contravent'ion be void, assuming for the present that Art. 13(2) operates on Constitutional amendments.\n\nIn construing the expression \"amendment of this constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article.\n\nLord Greene observed in Bidie v. General Accident. Fire and Life\n\nAsiurance Corporation(') : ·\n\n\"The first thing one has to do, I venture to think, in• construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that thcir meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take partieular words and attribute to them a sort of prirna facie meaning which you may have to displace or modify.\n\n( 1) (1948] 2 .All E.R. 995, 998.\n\n102 SUPREME COURT Rl!POllTS [1973] Supp. s.c.a.\n\nIt is to read the statute as a whole ahd ask oneself the question : \"In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?\"\n\nI respectfully adopt the reasoning of Lord Greene in construing the expres5ion \"the amendment of the Constitution.\"\n\nLord Greene 'is nor alone in this approach. fo Bourne v. Norwich Crematorium(') it is observed.:\n\n\"Engfish words derive colour trom those which swround them.\n\nSentences are not mere .collections of words to be taken out of the sent®ce defined separately by reference oo the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.\"\n\nHolmes, J. in Towne v. Eigner(') bad the same thought. He observed:\n\n' '\n\n\"A word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.\" t\n\nWhat Holmes J. said is particularly true of the word \"Amendment\" or \"Amend\".\n\nI may also refer to the observation of Gwyer C.J. and Lord Wright:\n\n\"A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implicatio1lf of the context, and even by the considerations ariing\n\nout of what appears to be the general scheme of the Act\". (Per Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42.)\n\nThe question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, fmti noe in vacuo but as occurring in a single complex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold a balance between all its parts''. (Per Lord Wright-Jama \"· Commonwealth of Australia-1936 A.C. 578 at 613):'\n\n( 1) [ 1967] 2 All E.R. 576, 578. (') 245 U.S. 418; 425=62 L. ed. 372; 376.\n\nL ' •\n\nDSAVANANDA ti. Kl!RALA (Sil(_ri, C.J.) 103\n\nIn the Constitution the. word \"amendment\" or \"amend'' has been wed in various places to mean different things. In some articles, the word \"amendment\" in the context has a wide meaning and in another context it has a narrow meaning. In art. 107, which deals with legislative procedure, cl. (2) provides that \"subject to the provisions of articles 108 and IO'), a Bill shall not be deemed to have betn passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.\" It is quic .clear that the word \"amendment\" in this\n\narticle has a narrow meaning. Simila.rL'y, in art. 11 l of the Constitution, whereby the President is enabled to send a message requestSng the Houses to consider the desirability of introducing amendments, the \"amendments\" has a narrow meaning.\n\nThe opening of art. 4(1) reads:\n\n\"4(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be nccC'Ssary to give effect to the provisions of the law ........................ \" ·\n\nHerc the word \"amendment'.' has a narrower meaning. \"Law\" under Artides 3 and 4 must \"conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise .... is not the power to over-ride the constitutional scheme. No state can,\n\nl!hcrcfore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial orgaus\". (Per Shah J.~Mangal Singh v. Union of India(') (Emphasis. supplied). . .\n\nArticle 169(2) reads :\n\n\"Any law referred to in clause (1) shall contain such provisio11s fot the amendment of. this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.\"\n\nHere also the word \"amendment\" has a narrow meaning.\n\nPara 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads :\n\n\"7. mcndment of the Schedule.-(!) Parliament may from time to ttme by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shalt be construed as a reference to such schedule as so amended.\"\n\n(1) [ 1967] 2 S.C.R. 109 at 112.\n\nl 04 SUPREME COUJ<T REPORTS [ 1973] Supp.· s.c.R.\n\nHere the word \"amend\" has been expanded by using the expres.ion \"by way of addition, variation or repeal\", but even h=, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have Ito be in line with the Constitution.\n\nI may mention that in the case of the amendments which may be made in exercise of the powers under art. 4, art. 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the Constitution for the purposes of art. 368.\n\nIt is also important to note that the Constituent Assembly which adopted art. 368 on September 17, 1949, had earlier on August 18, 1949, substituted the follow'mg section in place of the old Section 291 in the Government of India Act, 1935 :\n\n\"291.. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder-\n\n( l} The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say-\n\n( a) the composition of the Chamber or Chambers of the Legislature;\n\n(b) the delimitation of territorial constituencies for the 'purpose of elections under this Act. . . . . ~~ Here, llhe word \"amendment\" hasbeen expanded. It may be that there really is no cxpanSion because every.amendment may involve addition, variation or repeal of part of a provision.\n\nAccording to Mr. Scervai, the power of amendment given by art. 4, read with arts. 2 and 3, art. 169, Fifth Schedule and Sixth &hedule, is a limited power limited to certain provisions of the Constitutio~, while the power under art. 368 is not limited. It is .true every provision is prima facie amendable under art. 368 but this docs not solve the problem before us.\n\nI may mention that an attempt was made to expand the word \"amend\" in ar1i. 368 by proposing an amendment that ''by wy of vanation, addition, or repeal\" be added but the amendment was reiected.\n\n(C.A.D. Vol. 9 p. 1663).\n\nJtESAVANANDA V. KERAu (Sikri, C.J.) 105\n\nAgain, in art. 196(2), the wod \"amendment\" has been used in a limited sense. Art:. 196(2) reads :\n\n\"196(2). Subject to the provisions of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.\"\n\nSimilar meaning may be given to the word \"amendment\" in art. 197(2), which reads: ·\n\n\"197(2). If after a Bill has been so pa:ssed for the second time by the Legislative Assembly and transmitted to the Legislative Council-\n\n( a) the Bill is rejected by the Council; or\n\n(b) more than one month elapses from the date on which the\n\nBill is laid before the Council without the Bill being passed by it; or\n\n(c) the Bill is passed by the Council 'l'l'ith amendments to whicb\n\nthe Legislative Assembly does not agree,\n\n( c) the Bill is passed by the Legislative Assembly does not agree. the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in whicb it wa5 passed by tbc Legislati.ve Assembly for the second time with such amendments, if any, as nave been made or suggested.by the Legislative Council and agreed to by the Legislative Assembly.\"\n\nUnder Art. 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his. message. Here again \"amendment\" has clearly a limited meaning.\n\nIn art. 35 (b) the words used are :\n\n\"Any law in force immediately before the commencement of this Constitution. . .. . . . . . . . . subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until' altered or repealed or amended by Parliament.\"\n\nHerc, all the three words are used giving a, comprehensive meaning. Reliance is not placed by the draftsman only on the word \"amend\".\n\n1 Similar language is used in art. 372 whereby existing laws continue to be in force until \"altered or repealed or amended' by a com- . petent Legislature or other competent authority.\n\n106 SUPREMI! COUllT R1!P<>RTS [ 1973] Supp. s.C.R.\n\nIn the original art. 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that \"any regulation so made may repeal or amend any law made by Parliament.\" Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament.\n\nIn art. 252 again, the two words arc joined together to give a wider power. Clause (2) of art. 252 reads :\n\n\"252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by. an Act of the Legislature of that State.\"\n\nIn he proviso to art. 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is 'stated :\n\n\"Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding . to, amending, varying or repealing the law so made by the Legislature of the State.\"\n\nIn art. 320(5), \"all regulations made under the proviso to clause (3)\" can be modified \"whether .by way of repeal or amendment\" as both Houses of Parliament or the House or both Houses of the Legislature of the States may make during the session in which they arc so laid.\n\nI have referred to the variation in the language of the various articles dealing with the' question of amendment or, repeal \\n detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United Sllltes Supreme Q)urt: in Holmes v. Jenntson(') and quoted with approval in William v. United States(') :\n\n\"In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning : for it is evident from the whole instrument, that no word was unncccssarily used, or needlessly added ..... ; .. \"\n\n( 1) (10) L. ed. 579; 594.\n\n( 1) (77) L. ed. 1372; 1380.\n\nKESAVANANDA I/, UliL.\\. (Sikri, C.J.) 107\n\nReference was made to s. 6(2) of the Indian Independence Act, 1947, in which the last three lines read:\n\n\" ..... and the powers of the Legislature of each Dominion in- . elude the power to repeal or amend any such Act, order, rule or\n\nregulation in so far as it is part of the law of the Dominion.\"\n\nHerc, the comprehensive expression \"repeal or amend\" gives power to have a completely new Act different from an existing act of Parliament.\n\nSo, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation. of the phrases used all through the Constitution it follows that the word \"amendment\" must derive its colour from art. 368 and the rest of the provisiDns of the Constitution. There is no <loubt that it is not intended that the whole Constitution could be repealed. This much is conceded by the learned counsel for the respom:lcnts.\n\nTherefore, in ordi::r r.o appreciate the real content of the expression \"amendment of this Constitution\", in Article 368 I must look at the whole structure of. the COnstitution. The Constitution opens with a preamble which reads :\n\n''WE; THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure toall its citizens:\n\nJUSTICE, social, economic and politkal;\n\nLIBERTY of thought, expression, belief, faith and wonhip;\n\nEQUALITY of status and of opportunity: and to promote among them all ' , ,\n\nFRATERNITY assuriftg the dignity of the individual and the unity of the Nation; ·\n\nIN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO QURSEL VES nus, CONSTITUTION.\"\n\n. This Preamble, and indeed the Constitution, was drafted in the light and. direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows :\n\n_(1) _THIS CON~TUENT ASSEMBLY declares its firm . and solemn resolve to proclaim India as an Independent Sovciclgn\n\n~ublic d to draw up for her future governance a Consti-\n\n108 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\n(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and\n\n(3) herein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of auto- nomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as arc vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and\n\n( 4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and\n\n(5) wherein shall be guaranteed and secured to all people of\n\nIndia justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and\n\n( 6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and\n\n(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and\n\n(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.\"\n\nWhile moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said :\n\n\"!t seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the .\n\nHouse will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and\" to the House tha_t, when the time comes for the passing of this Resolution let it 6e not done\n\nKESAVANANDA I'. K.ERALA (Sikri, C.J.) 109\n\nin the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.\"\n\nI may here trace the history of the shaping of . the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitu-'\n\ntion framed in the light of the Preamble but the Preamble was ultimately settled in the light of rhe Constitution. This appears from the following brief survey of the history of the framing of the Preamble\n\nextracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : \"We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution\".(')\n\nAfter the plan of June 3, 1947, which led to the decision to parti tion the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Statm, would be conferred on India as from August 15,\n\n1947. After examining the implications of partition tile sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actuall1 been given to the June 3 Plan.(\") The Union Constitution Committee provisionally accepted the Preamble as drafted by B. N, Rao and reproduced it in its report of July 4, 1947 without any change, with\n\nthe tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by\n\nthe Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to onsier. the daft of th: Prcambl; cc the Ass; mbly stood by the basic prmc1plcs laid down m the Obiecttves Resolutton and these could\n\n( 1) Shiva R.ao's-Framing of India's Constiiution-A 11Udy-p. 127. (') _Special Sub-Commi~ minu11:1 June 9,_ 1947. Later on July 12, 1941, the special 1ub-comm1ttce agam postponed consideration of the matter. Select Documenu II, 20(ii), p. 617. (Shiva 'Rao's-Fruning oi India's Constituti<>n-\n\nA study-(p. 127 foetnote).\n\n8-369. C. lndia /73\n\n110 sUPUJ.a couar REPOll.TS (1973] Supp. s.c.ll.\n\nbe incorporated in the Preamble in the light of the changed situation(').\n\nThe suggestion was accepted by the Assembly and further consideration of the Preamble was held over.\n\nWe need not ronsidcr the inllcrmcdiatc drafts, but in the meantime the declaration (Sec Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17; _1949 after two days' debate.\n\nIn the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was \"not an alliance between democracies and dynasties, but a real union of the Indian people, built on the ha~ concept of the sovereignty of the people.\"(')\n\nThe draft Preamble was considered by th~ Asscmbl y on October 17, 1949. Shiva Rao observes that \"the object of putting the Preamble last, the President of the Assembly explained, was to sec that it was in conformity with the Constitution as accepted.\"(') \"Once the transfer of power had taken place the question of British Parliament's\n\nubscqucnt approval which was visualised in the British Cabinet Commission's original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with. the rapid march of events without any controversy, and the words in the Preamble \"give to ourselves this Constitution\" became .appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure \"this twenty-sixth day of November 1949\" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the <Constituent Assembly\".(') (p. 131).\n\nRegarding the use which can .. be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. \"If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the yreamble.\" (see Tbibhuban\n\nParkash Nayyar v. The. Union uf India) ( ).\n\n(') Shiva Rao'o-Franiing of Indi&'1 Constitution-A study-pp. 127-128 (also see footnote I p. 128). (') Shiva Rao's -Framina of India's Constitution-A study,-pp. 130-132.\n\n\nKESAVANANDA I/, KEllALA (Sikri, C.J.} 111\n\nW c arc, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, a most eminent lawyer\n\nsaid, \"so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute\".\n\n(Constituent Asscml;>ly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole constitution. It expresses \"what we had thought or dreamt for so long.\"\n\nIn re. Berubari Union and Exchange of Encla11es(') this was said about the Preamble~\n\n\"There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, \"a key to open the mind of the makers\" which may show the general purposes for whic11\n\nthey made the several provisions in the Constitution; but nevertheless the preamble is not . a part of the Constitution, and, as Willoughby has observed about the preamble. to the American Constitution, \"it has never been regarded as the source of any substantive power conferred on the Government of the United\n\nStates or any of its departtnents. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted\".\n\nWhat is true about the power is equally true about the pro.hibitions and limitations.''\n\nWanchoo, J. in Golaknath v. Puniab(') relied on Dcrubari's case and , said:\n\n\"on a parity of reai<>ning we arc of opinion that the. preamble cannot prohibit or control in any way or impose any implied prohibitions or. limitations on tl1e power to amend the Constitution contained in Art. 368.\"\n\nBachawat, J. in this case observed :\n\n\"Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see Wynes, Legislative Executive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari Union & Exchange of Enc/a11es.\"(' ).\n\n\n112 SUPREME COURT REPORTS [1973] Sapp. s.c.R.\n\nWith respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that \"what is true about the powers is equally true about the prohibitions and limitations.\" As I will show lator, even from the preamble limitations have been derived in some cases.\n\nIt is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urge. as follows :-\n\n\"This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves\n\nno doubt that what follows, or is annexed to, the Preamble, is the Constitution of India.\"\n\nHe has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Art. 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of\n\nthe Constitution statute and not a part of the Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Art. 368 enables\n\nParliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.\n\nThe Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay('). After referring to Part III, Mahajan, C.J., observed :\n\n\"We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, econrunic and political; liberty of thought, expre~ sion, belief, f:lidi and worship; equality of status and of opportunity. These fundamental rights have not been put in the Con~ titution merely for individual benefits, though ultimately they\n\n(l) [1955) I S.C.R. 613 at p. 653.\n\nKESAVANANDA V. KERALA (Sikri, C.j.) 113\n\ncome into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.\"\n\nSimilarly in In re. The Kera/a Education Bill(') 1957, Das C.J. while considering the validity of the Kerala Education Bill 1957 observed:\n\n\"In order to appreciate the true meaning, impart and implications of the provisions of the Bill which are said to have given rise to doubts, it will ]Je necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under consideration and then to the actual provision of the Bill.\n\nThe inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute .... (He then sets out the Preamble). Nothing provokes and stimulates thought and express; on in people more than education. It is education that clarifies our belief and fairh and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights.\"\n\nIn Sajjan Singh v. State of Rajasthan,(2 ) Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed :\n\n\"While considering this question it would be of relevance to bear\n\nin mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep <lclibcration and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?\n\nQuick and Garran in their \"Annotated Constitution of the Australian Commonwealth (1901 p. 283) \"adopted the following sentence\n\nfrom Lord Thring's \"Practical Legislation, p. 36\" :\n\n\"A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions.\"\n\nThornton on \"Legislative Drafting\"-p. 137pines that \"construction of the preamble may have effect either to extend or to restrict\n\ngneral language used in the body of an enactment.\"\n\n( 1) 11959] S.C.R. 995, 1018·1019.\n\n\n114 SUPREMf, COURT REPORTS [ 1973] Supp. s.c.R.\n\nIn Attorney-General v. Prince Ernest Augustus of Hanover(') the: House of Lords considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act, 1705. It was held that \"u a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier. relevant smtutc:1\n\n• . . . . . . . . . . . . . . . . . . . . . capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants \"born or hereafter to be born\" meant the class of such descendants in all degrees without any limit as to time.\" The House of Lords further held that \"looking at the Act from the point of view of 1705 there was no such manifest absurdity i.'l this; construction as would ontitle the court to reject it.\"\n\nMr. Seervai referred tl<l the passage from the speech of Lord Normand, at p. \"67. The passage is lengthy but I may quote thc:se sentences :\n\n\"It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. . If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words arc capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.\"\n\nViscount Simonds put the matter at page 463, thus : \"On the one hand, the proposition can be accepted that \"it is a sl\"ttled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear arid unambiguous terms''. I quote the words of Chitty L. J., which were cordially approved by Lord Davey in Powell v. Kempton Park: Racecourse Col Ltd. [ (1889) A.C. 143, 185]. On the other hand it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context.\"\n\nThis case shows that if on reading Art. 368 in the context of. the Constitution I find the word \"Amendment\" ambiguous I can refer to the Preamble to find which construction would fit in with the Preamble.\n\nIn State of Victoria v. The Commonwealth(') which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that 'one indissoluble Federal Commoowealth' is mentioned.\n\n( 1) (1957] A.C. 436, 460.\n\n( 2) 45 A.L.J. 251.\n\nKESAVANANDA V. KEl\\ALA (Sikri, C.J.) ll5\n\nThere is a sharp conflict of opinion in Australia respecting the: question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the \"indissoluble\" character and the sections which refer to the \"Federal\"' nature of the Constitution. After referring to this conflict, Wynes• observes:\n\n\"Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act' seeks no effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation.\"\n\nI am not called upon to say which view is correct but it does show that in Australia, there is a sharp conflict of opinion as to whether the Preamble can control the amending power.\n\nStory in hi; Commentaries on the Constitution of the United . States states: [(1883) Vol. 1]\n\n\"It (Preamble) is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they arc dear and unambiguous, there seems little room for interpretation, e:<cept in cases leading to an obvious absurdity, or to a direct overthrow of the intmtion express in the preamble. (p. +14)\n\nThere docs not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble.\n\nAnd accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.\" (page 444).\n\nStory further states at page 447-448 :\n\n\"And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. \"Let us turn,\" said Mr. Chief Justice Jay, \"to the constitution. The people therein declare, that their design in establishing it comprehended six objects: (1) To form a more perfect union; (2) to establish justice; (3) to insure domestic tranquillity; (4) to provide for the common defence; (5) to promote the general welfare;\n\n•Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506.\n\n116 SUPREME COUllT REPORTS [1973] Supp. s.c.R.\n\n( 6) to secure the blessings of liberty to themselves and their posterity. It would,\" he added, \"be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render a JX-Ople pro; perous and happy.\" In Hunter v. Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen,) \"the constitution of the United States was ordained and established, not b; the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States;\" and language still more expressive will be, found used on o; her solemn occasions.\" ,.\n\n\"l'he Supreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appropriately stated that the people of the United States erected their constitutrons or forms of governm, nt to establish jnstice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence\". (American Jurisprudence, 2d.\n\nVol. Hip. 184).\n\nIn the United States the Declaration of Independence is sometimes referred to in determining constinuional questions. It is stated in American Jurisprudence (2d. 16. p. 189) :\n\n\"While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basi• of judicial decision as to the limits of\n\nright~ and duties, yet it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining constitutional questions.\"\n\nIt seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Pre-amble.\n\nNow I may briefly describe the scheme of the Corutitution. Part I of the Constitution deals with \"the Union and its Territory\".\n\nAs originaUy enacted, art. 1 read as follows :\n\n1. India, that is Bharat, shall be a Union of States.\n\n2. The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.\n\nJCISAVANANllA v. llW.A (Siri. C.J.)\n\n3. The territory of India shall comprise-\n\n(a) the territories of the States;\n\n(b) the territories specified in Part D of the First Schedule;\n\nand\n\n( c) such other. territories as may be acquired.\n\nArticle 2 enabled Parliament to admit into the Union, or establish, new States on such terms and conditions a; it thinks fit. Article 3 and 4 dealt with the formation of new States and alteration of area>, boun- -Oaries or names of existing States.\n\nPart II dealt with \"Citizenship\". The heading of Part III is ·\"Fundamental Rights\". It first describes the expression \"the State\" to include \"the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other .authorities within the territory of India or under the control of the Government of India.\" (Art. 12), Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. \"This applies to existing laws as well as laws made after the coming into force of the Constitution. For the time being I assume that in Art. 13(2) the word \"law\" includes constitutional amendment.\n\nThe fundamental rights conferred by the Constitution include right to equality before the law, (Art. 14), prohibition of discmina 'tion on grounds of rclig'°n, race, caste, sex or place of birth, (Art. 15), equality of opportunity in matters of public employment, (Art. 16), right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profess.ion or lP carry on any occupation, trade or business. (Art. 19). Reasonable restrictions can be imposed on the rights under Art. 19 in respect of various matters.\n\nArticle 20 protects a person from being convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence or to he subjected to a penalty greater than that which m'ight have been inflicted under the law in force at tht time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled , to be a witness against himself.\n\nArticle 21 provides that no person shall he deprived of his life or persoml liberty except according to procedure established by law.\n\n118 SUPREME COURT REPORTS (1973] Supp. s.c.11..\n\nArticle 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that \"no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practi, tQi.cr of his choice.\" Article 22(2) provides that \"every person who is arrested and detained in custody shall be produced before the nearest magistrate within .. a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of. the magisrrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate\".\n\nArticle 22( 4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of. forced labour.\n\nArticle 24 provides that \"no child below the age of fourteen years shall be employed to work .ln any factory or mine or engaged in any other hazardous emplaymcnt.\"\n\nArticles 25, 26, 'lJ and 28 deal with the freedom of religion.\n\nArticle 25 (!) provides that \"subject to public order, morality and health and to the other provisions of this Part, all persons arc equally entitled to 'freedom of conocicnce and the right freely to profess, practise and propagate religion.\" Article 26 enables every religious denomination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable purposes; to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables prcsons to resist payment of any taxes the proceeds of which are specifically appropriatrd in payment of expenses for the promotion or maintenance of.\n\nany particular religion or religious denomination. . Article 28 deals with, fredom as to atrendao.i:e at religious instruction or religious worship in certain educational institutions.\n\nArticle 29(1) gives protection to minorities and provides that \"any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.\" Article 29(2) provides that \"no person shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.''\n\nArticle 30 gives further rights to minorities whether based on religion or language to establish and administi:r educational institutions of their choice. Article 30(2) prohibits the State from discriminating\n\nKESAVANANDA V. KERALA (Sik..ri, C.J.) 119\n\nagainst any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.\n\nAs will be shown later the inclusion of special rights for mmorities has great significance. They were clearly intended to be inalienable.\n\nThe right to property comes last and is dealt with the art 31. As originally enacted, it dealt wi, th the right to propertiy and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public puqJQSes on payment of compensation. It had three significant provisions, which show the intention of the constitution-makers regarding property rights. The first is\n\nArt. 31(4). This provision was intended llO protect legislation dealing with agrarian reforms. The second provision, Art. 31(5)(a), was designed to protect eXisting lelation dealing with compulsory acquisition. Some' acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Art. 31 ( 6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution.\n\nThe fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest courr of the land, i.e., the Supreme Court, by appropriate proceedings for the enforctment of the rights conferred by this part, and this right was\n\nguaranteed. A1ticlc 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32( 4) further provides that \"the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.\"\n\nArticle 33 enables Parliament by law to \"determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper di, charge of their duties and the maintenance of discipline among them.\"\n\nThis articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were contemplated and precisely described.\n\n120 SUPREME COUJlT :REPORTS [ 1973]' Supp. s.c.R.\n\nArticle 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of a State or any other person in connection with acts done while martial law was in force in a particular area.\n\nPart JV of the Constitution contains directive principles of State policy. Article 37 specifically provides that \"the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance oE the country and it shall be rhe duty of the State to apply these principles in making laws.\" This clearly sh0ws, a11d it has also been laid down by this Court, that these provisions are not justiciable and cannot be enforced by any Court. The Courts could not, for instance1 issue a mandamus directing the State to provide adequate means :fj\n\nlivelihood to every citizen, or that the ownership and control df tllf. materia: resources of the community be so distributed as best to sub. 1crve the common good, or that there should be equal pay for equal\n\nwork for both men and women.\n\nSome of the directive principles arc of i<rcat fundamental impor-· tancc in the governance of the country. But the question ii not whether they arc important; the question is whether they override the\n\nfundamental rights. In other words, can Parliament abrogate the fundamental rights in order to give effect to some of the directive principles I\n\nI may now briefly notice the directive principlCI .mentioned in Part JV. Art. 38 provides t'1at \"the State shall strive to promote the welfare of the people by securini< and protecting as effectively \"' it may a social order in which justice, social, economi.c and political, shall inform all the institutions of the national life.'' Now, this dirco. tivc is compatible with the fundament?al rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which givs particular directions to the State, reads thus :\n\n\"39. The State shall, in particular, di•ect its policy toward• securin11-\n\n(a) that the citizens, men ant! women equally, have the right to\n\nan adequate means uf livelihood;\n\n(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; ( c) that the operation of the economic system does not. result in the concentration of wealth and means of production to the common d(:triment;\n\nKESAVANANDA v. llllALA (Si/i.ri, C.J.) 121\n\n(d) that there is equal pay for equal work for both men and women;\n\n( e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by eqonomic necessity to enter avocations unsuited to their age or strength;\n\n(f) that childhood and youth are protected against exploitation and against moral and material abandonment.\"\n\nArticle 40 deals with the orga1iisation of village panchayats.\n\nArticles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make proviswns for securing just and humane conditions of work and for matnnity relief. Article 43 direct that \"the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, tD all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full ejoyment ot leisure and social and cultural opportunities and, in particular, the State shall endeavour to promoi.= cottage industries 011\n\nan individual or cooperative basis in rural areas.\"\n\nArticle 44 enjoins that the \"State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.\" Desirable as it 'is, the Government has not been able to take any effective steps towards. the realisation of this goal. Obviously no Court can compel the Government to lay , fawn a uniform civil code even\n\nthough it is essentially deidlle in the interest of the integrity. and unity of the country.\n\nArticle 45 directs that \"the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free compulsory education for all children until they complete the age of fourteen years.\" This again is a very desirable directive. Although the Government has not been able to fulfil it completely, it cannot be compelled by any court of law IX) provide such education.\n\nArticle 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castx:s and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.\n\nArticle 47 lays down as one of the duties of the State to raise the standard of. living and to improve pub!.¥: health, and to bring about\n\n122 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nprohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.\n\nArticle 49 deals with protection of monuments and places and ob1ects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to a large extent, carried out without infringing the fundamental rights.\n\nIn his preliminary note on the fundamental Rights. Sir B. N. Rau, dealing with the directive principles, observed :\n\n\"The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as 'the State'). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court.\"\n\nAfter setting out certain directive principles, he observed : \"It is obvious that none of th~ above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be contended that the Constitution is not the proper place for moral precepts, nevertheless constitutional declaration of policy of this kind are now becoming increasingly frequent. (See the Introduction to the I.LO. publication Constitutional Provisions concerning Social and Economic Policy, Montreal, 1944). They have at least an educative value.\" (pages 33-34-Shiva R:w : Framing of Indian Constitution: Doc. Vol. II).\n\nThen he referred to the genesis of the various articles mentioned in the preliminary note.\n\nOne must pause and ask the question as to why did the Constituent.\n\nAssembly resist the persistent efforts of Shri B. N. Rau to make fundamental rights subject to the directive principles. The answer seems plain enough : The Constituent Assembly deliberately decided not to do so.\n\nSir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed:\n\n\"A distinction has necess'lfily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directive objectives tc state policy.\" (page 67 supra).\n\nusAVANANDA v. XEllALA (Sikri, C.J.) 123\n\nIt is impossible to equate the directive principles with fundamcn ta! rights though it cannot be denied that they arc very important.\n\nBut to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the direr\n\nrive principles seems to me a contradiction in terms.\n\nI may here mention that while our fundamental rights and dircc rive principles were being fashioned and approved of by the Consti tuent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights.\n\nThe Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote\n\nonly the Preamble :\n\n\"Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. (emphasis supplied)\n\nWhereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.\n\nWhereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.\n\nWhereas it is essential to promote the development of friendly relations between nations.\n\nWhereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards .of life in larger freedom.\n\nWhereas Member States have pledged themselves to achieve, in cooperation with the U cited Nations, the promotion of uni versa] respect for and observance of human rights and fundament:1! freedoms.\n\nWhereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge\"\n\nIn the Preamble to the _International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows :\n\n:Considering that, in accordance with the principles proclaimeJ m the Chartx:r of the United Nations, recognition o£ the inherent\n\n'124 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\ndignity and of the equal and inalienable rights of aU members of the human family is the foundation of freedom, justice and peace in the world.\"\n\nDo rights remain inalienable if they can be amended out of •'\\istmce i The Preamble arts. l, 55, 56, 62, 68 and 76 of the United, Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter (see Oppenheim's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of art. 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter an<il the solemn declaration subscribed to by India. Article 51 reads :\n\n\"51. The State shall endeavour to-\n\n(a) promote international peace and security ;\n\n(b) maintain just anJ honourable relations betwer.n nations ;\n\n( c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another ; and\n\n( d) encourage settlement of international disputes by arbitration.\"\n\n1\\.s opserved by Lord Denning in Corocraft v. Pan American Airways(') \"it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it.\" (Sec also Oppenheim supra, pp. 45-46 ; American Jurisprudence 2nd, Vol. 45, p. 351).\n\nPart V Chapcr I, deals with the Executive ; Chapter II with Parliament-conduct of its business, qualification of. its members, legislation procedure etc. Article 83 provides that :\n\n\"83. ( 1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.\n\n(2) The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House : .... ~\n\n(1) ( 1969) I All E.R. 82; 87.\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 125\n\nUn.der the proviso this period can be extended while a Proclamation of Emergency is in operation for a period not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in art. 85 ( 1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at kast in every year, and six months shall not intervene between thcir last sittings in one session and the date appointed for thcir first sitting in the next session.\n\nArticle 123 gives power to the President to promulgate ordinances during recess of Parliament. Chapter IV deals wi\\h Union Judiciary.\n\nPart VI, as originally enacted dealt with the States in Part A of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of art. 85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances.\n\nPart XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations.\n\nPart XII deals with Finance, Property, Contracts and Suits. We need only notice art. 265 which provides that \"no tax shall be levied or collected except by authority of law\",\n\nPart XIII deals with Trade, Commerce and Intercourse within the Territory of India. Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free (art. 301).\n\nPart XIV deals with Services under the Union and the States. Part XVI contains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for thes~ classes. Article 331 enables the President to nominate not more than two members of the AnglC>-Indian community if it is not adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and ScHeduled Tribes in the Legislative Assemblies of the States. In art. 334 it i. provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of a period of ten years from the commencement of this Constitution.\n\nArticle 335 deals with claims of scheduled casries and scheduled tribes to services and posts. Article 336 makes special provisions for AnglC>- lndian community in certain services, and article 337 makes special\n\n9--36-S. c. India/73\n\n126 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nprovisions in respect of educational grants for the benefit of Anglo-\n\nIndian community. Article 338 provides for the creation of a Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint a Commission to investigate the conditions of socially and educationally back.ward classes within the territory of India which shall present a repon and make recommendations on steps that should be taken to remove difficulties and improve their condition.\n\nArticle 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purpose,<; of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, article 342 provides that the Presidenr may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.\n\nPart XVII deals with Official Language, and Part XV III with Emergency Provisions. Article 352 is important. It reads :\n\n\"352.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.\"\n\nArticle 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to .make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List.\n\nArticle 354 enables the President by order to make exceptions and modifications in the provisions of art. 268 to 279. Under art. 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of constitutional machinery in a State.\n\nArticle 358 provides for smpension of the provisions of art. 19 during Emergency. It reads:\n\n\"358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as dened in Part III to make any law or to take any executive action which\n\nJWAVANANDA v. KEllALA (Sikri, C.J.) 127\n\nthe State would but for the provisions contained in that Part be competent to make or to take. but any law so made shall, to the rxtent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\"\n\nArticle 359 is most important for our purpose. It provides that :\n\n\"359. (1) Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Pan III\n\nas may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.\n\n(2) An order made as aforesaid may extend to the whole or any part of the territory of India.\n\n(3) Every order made under clause (1) shall, as soon as may be after it is made be laid before each House of Parliament.\"\n\nThese two articles, name! y Art. 358 and Art. 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Art. 19 shall not operate for a limited time, and so also Art. 32 and Art. 226 if the President so declares by order. If it wac the design that fundamental rights might be abrogted surely they would have. expressly provided it somewhere.\n\nI may here notice an argumenMhat the enactment of Articles 358 and 359 showed that the fundamental rights were not treated as inalienable rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable . to be subjected to extraordinary restrictions.\n\nI may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in s. 6(6) of the Indian Independence Act, 1947, that \"the powers referred to in sub-section ( 1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion.\" Sub-section (1) of s. 6 reads:\n\n\"The legislature of each of.the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.''\n\n1~8 suPllEME oourr lll!PORTS [1973] Supp. s.c.11.\n\nThat s. 6(1) included making provision as to the. Constitution of the Dominion is made clear by s. 8(1) which provided: \"In the case of _ each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the C onstttution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion .shall be construed accordingly. \"(Emphasis supplied)\".\n\nThese provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.\n\nNo similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962. •\n\nI may mention that the aforesaid provisions in the Indian Indcpen• dencc Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20• of the Statement by the Cabinet Mission provided :\n\n\"The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights,. the clauses for the protection of ffiinorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union constitution.\"\n\nIn clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated :\n\n\"But in order to give these minorities and particularly the smal!er minorities lib: the Indian Christians and the Anglc>-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by\n\n•See: Shiva Rao-The Framing of India's Constitution, Vol. I, p. 216.\n\nosAVANANDA ti. KUALA (Sikri, C.J.) 129\n\nthe constitution-making body of an influential advisory Commi .. lion which will takY: the Initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the constitution\n\nmaking body and will also suggest at whicli stage or stages in the ronstitution these provisions should be inserted, that is whether in the Union, Group or Provincial constitutions or in any two or more of them.\" (P. 224, Supra). ·\n\nIn the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated : ·\n\n\"The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matller before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be -by a majority of ech of the two major communities.\" (P. 251,\n\nSupra). •\n\nIn his reply dated May 22, 1946, llhc Secretary of State observed : \"When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necc.1Sary for the cession of sovereignty to the Indian people, subject only to two provisos which arc mentioned in the statement and which arc not, we believe, controversial, namely, adequate protiilitm for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer 'of power.\" (Emphasis supplied) (P. 252, Supra).\n\nIn the Explanatory statement dated May 22, 1946, it was again re. iterated as follows : ·\n\n\"When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be !1-ecessary for the cession of sovereignty to the Indian people, subiect only to two matters which arc mentioned in the statement and, ','l'hich, we believe are not ctmtroversial, namely ; adequate provtsttm for the protection of the minorities (paragraph 20 ?f the statement) and willingness to conclude a treaty with His Maiesty's Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (Emphasis supplied) (P. 258, Supra).\n\n In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind\n\n130 SUPREME COUil.T REPORTS [1973] Supp. s.c.R.\n\nBallabh Pant in the C.Onsllituent Assembly on January 24, 1947.\n\nHe laid special importance on the issue of minorities. The Advisory C.Ommittee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-c.ommittee.\n\nThe Sub-c.ommittee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, , educational and cultural safeguards. In other words all these safeguards were considered.\n\nDivergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. At these meetings the sub-committee considered llhe interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any cfuability arising out of untouchability should be made an offence punishable according to law ; freedom to profess, practise and propagate one's religion ; the right to establish and maintain institutions for religious and charitable purposes ; the right ro be governed by one's persona\\ law ; the right to use one's mother-tongue and establish denominational communal or language schools etc.\n\nHaving dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee rnet again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.\n\nIn forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said :\n\n\" ... It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session.\n\nThat report dealt with justiciable fundamental rights ; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as poli- tical safeguards of minorities and covers the following points : (Emphasis supplied) (p. 411, Supra)\n\n(i) Representation in Legislature ; joint versus separate clect<>-\n\nrates ; and wcightage.\n\n(ii) Reservation of scats for minorities in Cabinets.\n\n(m) Reservation for minorities in the public services.\n\n;--\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 131\n\n(iv} Administrative machinery to ensure protection oi. minority rights.\n\nSardar Patel, while moving. the report for consideration on August 27, 1947, said :\n\n\"You will remember that we passed the Fundamental Rights Committee's Report which was sent by the Advisory Committee ; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give rhem ample protection ; and yet there arc certain political safeguards which have got to he specifically considered. An attempt has been made in this report to enumerate those safeguards which a•e matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate.\" (Emphasis supplied) (p. 424, Supra)\n\nThe above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights CommiJttec.\n\nThe above brief summary of the work of the Advisory Committee and the Minorities Sub-Commi.ttee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable tn be abrogated by an amendment of the Constitution. The\n\nsame is true about the proceedings in the Constituent Assembly. There is no hint anywhere. that abrogation of minorities rights was ever in the contemplation oi. the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Commi.ttees, as wdl as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression \"Amendment of the Constitution\" as empowering Parliament to abrogate the rights of minorities.\n\nBoth sides relied on the speeches made in the Constituent Assembly.\n\nIt is, however, a sound rule of construction that speeches made by mcmbers .. of a legislature in the course of debates relating to the enactment o( a. statute cannot be used as aids for interpreting any of provisions of the. sta.tute. Th.e sa.me rule has been applied to the provisions of this Constitution by thlS Court in State of Travanco<e-Cochin and Others v.\n\nBombay Co. Ltd! 'Shastri, .C.J., speaking for the Court observed : 'It remains only to point out that the use made by the learned Judges below of t!ic speeches made by the Members of the Constituent Assembly m the course of the debates on the draft Constitutior\n\n( 1) [1952] S.C.R. 1112, 1121.\n\n132 SUPREME COURT Rl!PORTS [ 1973] Supp. s.c.11.\n\nis unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-sec Administrator-Genera/ of Bengal v. Prem Nath Mallick.(') The reason behind the rule was explained by one of us in Gopa/an's(') case thus :-\n\n\"A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not rdiect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in\n\nrecord,\"\n\nor, as it is more tersely put in an American case-\n\n\"Those who did not speaki may not have agreed with those who did ; and those who spoke might differ from each other-United States v. Trans-Missou.ri Freight Association.\"\n\nThis rule of cxclwion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Awtralia-sce Craics on Statute Law, 5th Ed. p. 122.\"\n\nIn Golak Nath's(') case,° Subba Rao, C.J., referred to certain portions of the speeches made by Panclit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred IP these speeches \"not with a view to interpret the provisions of art. 368, which we propose to do on its own terms, but only to notice the transcendental character givf:n to the fundmental rights by two of the important architects of the Constitution.\" Bachawat, J., at p. 922 observed :\n\n\"Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-sec State of Travancore Cochin and Ors. v. Bombay Co. Ltd.(') Accordingly I do not rely onthcm as aids to construction. But I propose to refer to them, a• Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the speeches. . \"\n\n(') [1895] 22 I.A. 107-118.\n\n( 2 ) [1950] S.C.R. 88.\n\n\n(') [1952] S.C.R. 1112.\n\nXESAVANANDA V. KDALA (Sikri, C.J.) 133\n\nIn H. H. Maharaiadhiraia Madhav Rao v. Union of India(') Shah, J, in •.he course of the judgment made a brief reference to what was Slid by the Minister of Home Affairs, who was in charge of the States, when he moved for the adoptiol\\ of art. 291. He referred to this portion of the speech for the purpos~ of showing the historical background and the rircwmtances which necessitated giving certain guarantees to the former rulers.\n\nIt is true that Mitter, J., in the dissentmg judgment, at p. 121, used the debates for the purposes of interpreting art. 363 but he did not discuss the point whether it is'permissjble to do so or not.\n\nIn Union of India v. H. S. Dhillon,(') I, on behalf of the majority, before referring to the speeches observed at p. 58 that \"we are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended.\" .There is no harm in finding confirmation of one's interpretation in debates but it is qtiite a different thing to interpret the provisions of the Constitution in the light of the debates.\n\nThere is an additional reason for not referring to debates for the , purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October, 12, 1949 (C.A.D. Vol. X, pp. 161-3) :-\n\n\"Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the Constitution of India emerges in its final form. We have, therefore, no option but to make the Constitution operative in these States on the basis of its acce'ptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers.\" ·\n\nIn ccorance with this sttement, declarations were issued by the Rulers or .Roipramukhs acceptmg the Constitution.\n\nIt seems to me that whei; i a Ruler or RajpramukJi or the people of the State accepted the Constitution of India in its final form he did not accept it subject to the speeches made during the Cnstituent Assembly deates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or\n\n\n( 2) f1972 J 2 S.C.R. 33.\n\n134 SUPREME COURT REPORTS ( 1973) Supp. S.C.R,\n\nprovisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people.•\n\nIn this connection reference was made to art. 305 of the draft Constitution which provided that notwithstancling anything contained in article 3.o4 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Consti\n\ntution. Although this draft article 305 has no counterpart in our Constitution, jt was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.\n\nA very important decision of the Judicial Committee ot the Privy Council in The Bribery Commissioner v. Pedrick Ranasinghe(') throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Go!ak Nath's (') case. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, herein after referred to as the Ceylon Constitution.\n\nPart Ill of the Ceylon Constitution deals with \"Legislature\". Section 7 provides that \"there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives.\"\n\nSection 18 deals with voting. It. reaJs: \"18. Save as otherwise provided in sub-section (4) of section 1.9, any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding sha.11 not vote in the first in!tance but shall have and exercise a casting vote in the event of an equali.ty of votes.\" Section 29 deal; with the power of Parliament to make laws.\n\nIt reads :\n\n\"29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the pe\"ce. order and good government of the Isbnd .\n\n.. (See In re. The Regulation and Control of Aeronauti'c1 in Canada) [1932 , \\.\\..:. 54 at p. 70.\n\n( 1) [1965] A.C. 172. i') (1967] 2 S.C.R. 762.\n\nKESAVANANDA fl. KERALA (Sikri, C.J.) !35\n\n(2) No such law shall-\n\n( a) prohibit or restrict the free exercise of any religion, or\n\n(b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable ; or\n\n( c) confer on persons of any c0mmunity or religi, on any privilege or advantage which is not conferred on persons of other communities or religions ; or\n\n(d) alter the constitution of any religious body except with the consent of the governing authority of that body. So, however,. that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.\n\nProvided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian & Pakistani Residents (Citizenship Act).\n\nThis prO'Viso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette.\n\n(3) Any law made in contravention of sub-section (2) of this section shall, to the extent of such contravention, be void.\n\n( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island :\n\nProvided that no Bill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Raval Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House (including those not present),\n\nEvery certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.''\n\n1ccording to.Mr. Palkhivala, section 29(1) corresponds to arts. 245 and -46, and section 29( 4) corresponds to art. 368 of our Constitution, _a!ld sections _29(2) and 29(3) correspond to art. 13(2) of our Constitution, read with fundamental righa,\n\n136 SUPREME COURT REPORTS (1973] Supp. S.C.L\n\nThe question which arose before the Judicial Committee oi the Privy Council was whether section 41 of. the Bribery Amendment Act, 1958 contravened section 29(4) of the Ceylon Constitution, and was consequently invalid. The question arose out of tl).e following facts.\n\nThe respondent, Ranasinghe, was prosecuted for a bribery offence .before\n\nthe Bribery Tribunal created by the Bribery Amendment Act, 1958.\n\nThe Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persol'ls composing the Tribunal were not validly appointed to the Tribunal.\n\nSection 52 of the Ceylon Constitution provided for the appointment of the Chief J us ti cc and Puisnc Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service Commission, consiating of the Chief Justice, a Judge of the Supreme Court, and one other person who shal~ be, or shall have been, a Judge of the Supreme Court.\n\nIt further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial Officers. Section_ 55 ( 1) reads :\n\n\"55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission.\"\n\nThe Judicial Committee deduced from these provisions thus :\n\n\"Thus there is secured a freedom from political control, and it'is a punishable offence to attempt directly or indirecdy to influence any decision of the Commission (Section 56).\" (p. 190).\n\nThe Judicial Committee then described the p<ll'lition of the Bribery Tribunal as follows :\n\n\"A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (section 42). The panel is composed of not more than 15 persons who arc appointed by the Governor-General on the advice of the Minister of Justice (section 41). The members of the panel arc pitld remw1eration (section 45).\" (p. 192). ·\n\nThe Judicial Committee held that the members ~£ the Tribooal held judicial office and were judicial officers wi~ S: 55 ~-the Ceylon -COnstit\\ltion. They found that there was a plain ct bctwwi\n\nsection 55 of the Constitution and section 41 of the Brilicry Am_cndmcnt Act under which the panel was appointed.\n\nKESAVANANDA V, KERALA (Sikri, C.J.} 137\n\nThen the Judicial Committee examined the eficct of this conflict.\n\nAfter setting out section 18, section 29(1) and section 29(2) (a), the Judicial Committee observed :\n\n\"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, whidi shall not be the subject of legislation. They represent the solemn balance of rights, between the citizen; of Ceylon, the ftmdamental conditions on which inter se they accepted the ConstitutioH ; and these are, therefore unalterable\n\nunder the Constitution.\" (Emphasis supplied) (p. 193).\n\nAfter making these observations, the Judicial Committee set out sub-sections (3) and (4) of section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, rhe fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India.\n\nMr. Seervai, in reply, submitted that the word \"entrenched\" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in s. 29(4) of the Ceylon Co.nstitution. But\n\nI am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon Constitution could be amended without following the procedure laid down in s. 29(4).\n\nThe interpretation urged by Mr. Palkhivala dervies support in the manner the Judicial Committee distinguished McCawley's(') case (Mt Cawley v. King). I may set out here the observations of the Judicial Committee regarding M cCawley' s case. They observed :\n\n\"It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question. passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which tuas neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. (Emphasis supplied). (p. 198).\n\n( 1) [1920] A.C. 691.\n\n138 SUPREME COUJlT llPO&TS [1973] Supp. s.c.P..\n\nIt is rightly urged that the expression \"which was neither fundamental in the sense of being beyond change\" has reference to s. 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of s. 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book \"Reflections on the Constitution and the Constituent Assembly. (Ceylon's Constitution) \"by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe(') ingicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.\n\nIt may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.\n\nWhy did the Judicial Committee say that the provisions of s. 29(2 were \"unalterable under the Constitution\" or \"fundamental in the sens of !J,, ing beyond change\" ? There is nothing in the language of s.\" 29( 4 to indicate any limitations on the power of the Ceylon Parliament. I' could \"amend or repeal\" any provision of the Constitution, which included section 29(2) and s. 29( 4) itself. The reason could only be an implied limitation on the power to amend under section 29( 4) deducible from \"the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution\". Unless there was implied a limitation on the exercise of the amending power under section 29(4), section 29(4) could itself be amended to make it clear that section 29(2) is amendable.\n\nThis case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council.\n\nMr. Seervai relied on the portion within brackets of the following passage at pp. 197-198:\n\n''These passages show clearly that the Board in M cCawley' s case took the view which commends itself to the Board in the present case, that (a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its powers to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is \"uncontrolled,\" as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides that if the terms of those provisions are compiled with ancl the alteration or amendment may\n\n(') (1965] A.c. 172, 193-194.\n\nXl!SAVANANDA ti. KERALA (Sikri, C.J.) 139\n\ninclude the change or abolition of those very provisions.) But the proposition which is not acceptable is that a legislature, once cstabllihcd, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majori'ty or by a different legislative process. And this is the proposition which is in reality involved in the a.rgument.\"\n\nThe portion, not within br.ackets, which has been omitted in Mr. Seervai's written submissions, clearly shows that the fudicial Committee in this passage was not dealing with the amendment of s. 29(2) of the Ceylon Constitution and had understood McCawlty's(') case as not being concerned with the question of the amendment of a provision like s. 29(2) of the Ceylon Constitution. This passage only means that a legislature cannot disregard the procedural conditions imposed on it by the constituent instrument prescribing a particular majority but may amend them if the constituent instrument gives that power.\n\nThe next passage, a part of which I have already extracted, which deals with the difference between McCawley's case a.nd Rana.ringhe's(')\n\ncase shows that the fudicial Committee in the passage relied on was dealing with the procedural part of section 29( 4) of Ceylon Constitution. ft reads :\n\n\"It is possible now to state summarily what is the essential dilfe.\n\nrence between the Mccawley case and this case. There the legislat; ure having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be mae by law~ whic.h comply with the special legislative procedure laid down m section. 29( 4), the Ceylon legislature has not got the_ general l.'o':\"er to legslate so as to amend its Omstitution by ordrnary ma1onty resolutions, such as the Queensfand legislature was found to have under section 2 of its Constitution Act, but is .\n\n( 1 ) f 1920] A.C. 691.\n\n( 2) [1965] A.C. 172, 193-194.\n\n140 SUPREME COUllT REPORTS [ 1973] Supp. s.c.11.\n\nrather in the position, for effecting such amendments, that that legislature was held t<> be in by virtue of its section 9, namely,. compelled to operate a special procedure in order to achieve the desired result.\" (p. 198).\n\nI may mention that the Judicial Committee while interpreting the British :North America Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The Regulation and Control of Aeronautics in Canada : (') \"inasmuch as the Act ~British North.\n\nAmerica Act) embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a conditioin on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies.\"\n\nThe words of the Judicial Committee in Ranasinghe's case, are apposite and pregnant. \" They represent the solemn balance of rights between the citizen< of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unalterable under the Constitution.\" It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word \"unalterable\".\n\nBut the India context is s\\ightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Art. 13(2) of the Constitution be taken to include constitutional amendments. A more reasonable inference to be drawn from the whole ; cheme of the Constitution is that some other meaning cf \"Amendment\" is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one\n\nmbstituted. In other words, the expression \"Amendment of this Constitution\" does not include a revision of the whole Constitution. If this is true-I say that the concession was rightly made-1hen which is that meaning of the word \"Amendment\" that is most appropriate and fits in with the while scheme of the Constitution. In my view 1hat meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Con.ritution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.\n\n(') [1933) A.C. 54 at p. 70.\n\n14.\n\nI come to the same conclusion by another line of reasoning. In a written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. I will mention a few instances approved by the Judicial Committee and this Court and other Courts. I may first consider the doctrine that en<1bles Parliament to have power to. deal with ancillary and subsidiary matters, which strictly do not fall within the legislative entry with-respect to which legislation is being unden.\n\nLefroy in \"A short Treatise on Canadian Constitutional Law\" (page 94), puts the matter thus :\n\n\"But when it is (Dominion Parliament) is legislating upon the enumerated Dominion subject-matters of sec. 91 of the Federation Act, it is held that the Imperial Parliament, by necessary implication, intended to confer on it legislative power to interfere with, deal with, and encroach upon, matters otherwise assigned to the provincial legislatures under sec. 92, so far as a general law relating\n\n{O those subjects may affect them, as it may also do to the enent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated. The Privy Council has established and illustrated this in many decisions.\"\n\nThis acts as a corresponding limitation on the legislative power of the Provincial or State legislatures.\n\nThis Court has in numerous decisions implied sim'lar powers. (See Orient Paper MiNs v. State of Orissa('); Burmah Construction Co. v~ Stat.: of Ori<Sa('); Navnit Lal Javeri v. Appellate Assistant Commissioner('); to mention a few).\n\nIt often happens that what has been implied by courts in one constitution is expredy conferred in another constitution. For instance, in the Constitution of the United States, clause 18 of section 8 expressly grants incidental powers :\n\n\"The Congress shall have power .......... to make all laws which shall be necessary and proper for carrying into execution the fore- ·\"' going powers and all other powers vested by this Constitution in the government of the United States, or in any departtnent or officer thereof.\"\n\nIt would not be legitimate to argue from the above express provision in the United States Constitution that if the constitution-makers wanted to giye such powers to the Parliament of India they would have expressly conferred incidental powers.\n\n( 1 ) [ 1962] !. S.C.R. 549.\n\n( 2 ) [1962] 1 Supp. S.C.R. 242.\n\n( 3 ) A.I.R. 1965 S.C. 1375. 10-36 S.C. India/73\n\n142 sul'&llME couar &UGa'S [Im} .Sapp. ~\n\nStory says that clause 18 import$ no ~.\n\nJ:baa would zaalt from necemry implicition (~ pp. 112 and lU. Vol. 3) if it had not been cxpmsly inserted.\n\nIn Ram /awaya Kapur v. Sttlle uf .,_;.{') thil Cowl: implied that \"the President has thus been made a formal or constitutional head of the executive and the real executive powc:n are \\ICStcd in the Ministers or the Cabinet. The same provisions obtain in tqard to the Government of States ; the Governor or the Rajpnmukh .... \"\n\nIn Sanieevi Naidu v. State of Madras(\") Hedge, J., held that the Governor was essentially a constitutional head and the administrtion of State was run by the Council of Minis~\n\nBoth these cases were followed by another constitutioo bench in U.N.R. Rao v. Smt. Indira Gandhi.(')\n\nThis conclusion constitutes an implied limitarion oo the powers of the President and the Governors.. The Court further implied in. &zm /awaya Kapur' s(') case that the Government could without spccilic legislative sanction carry on trade aad bwincst.\n\nTo save time we did not hear Mr. Sc~ on the last 3 cases just cited. I have mentioned them only to give another aample.\n\nIt may be noted that what was implied regarding carrying on trade was made an express provision in the Constit1; l!ion by the Constitution (Seventh Amendment) Act, 1956, when a new art. 298 was substituted.\n\nThe Federal Court and the Supreme Court of India have recognised and applied this principle in other :\n\n(i) \"A grant of the power in general terms standing by itself would no doubt be construed in the wider sense ; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by considerations arising out of what appears to be the gcneml scheme of the Act.\"\n\n(Per Gwyer C.J. The C.P. & lkr11r Act-1939 F.C.R. 18 at 42).\n\n(ii) Before its amendment in 1955, Article 31(2) was read as containing an implied limitation that the State could acquire only\n\n\n( 2) [1970] I S.C.C. 443.\n\n<(3 ) [1971] 2 s.c.c. 63.\n\nUU.VANANDA v. lllALA (Sikri, C.J.)\n\n14J\n\nfor a public purpose (the Fourth Amendment expressly enacted this limitation in 1955).\n\n(a) \"One limitation imposed upon acquisition or taking pos.1CSsion of private property which is implied in the clause is that such taking must be for public purpose\". (Per Mukherjca J.\n\nChiraniitlal Chowdhuri v. Union of lndi11-1950 SCR 869 at 902).\n\n(b) \"The existence of a 'public purpose' is undoubtedly an\n\n implied condition of the exercise of compulsory powers of acquisition by the State ........ \" (Per Mahajan J. SttZte of Bihar v. Makarajadliiraja of Darbhanga-1952 SCR 889 at 934).\n\n(iii) The Supreme Court has laid down that there is an implied limitation on legislative power : the Legislature cannot delegate the essentials of the legislative functions.\n\n\" .... the legislature cannot part with its essential legislative function which consists 'in declaring its policy and making it a binding rule of conduct. . . . . . . . the limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise d the power effective and complete. (Per Mukherjea J. in re The Delhi Laws Act-1951 SCR 747 at 984-5).\n\nThe same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in :\n\nRaj Narain Singh v. Patna Admin'istration-1955(1) SCR 290.\n\nHari Shankar Bag/a v. State of Madhya Pradesh-1955(1) SCR 380.\n\nV asantilal Sanjanwala v. State of Bombay-1961 ( 1) SCR 341.\n\nThe Municipal Corporation of Delhi v. Birla Cotton Mills-1968\n\n(3) SCR 251.\n\nGarewal v. State of Punjab-1959 Supp. (1) SCR 792.\n\n(iv) On the power confered by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose limitation has been implied that the new State must-\n\n\"conform to tlte democratic pattern envisaged by the Constitution;\n\nand the power which the Parliament may exercise ....... -_ is not\n\nthe power ro over-ride the constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no , ffcctive legislative, executive and\n\n144 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\njudicial organs\". (Per Shah J.-Mangal Singh v. Union of Indi11- 1967(2) SCR 109 at 112. (Emphasis supplied).\n\nIt would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution.\n\nBefore referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here :\n\n\"Since the Engineers\" case (1920-28 CLR 129) a notion seems to have gained currency' that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments, a written constitution seems the last to which it could be applied.\n\nI do not think that the judgment of the majority of the court in the Engineers' case meant to propound such a doctrine\" (Per Dixon J. West v. Commissioner of Taxation (New South Wales)-56 CLR 657 at 681-2).\n\n\"Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that thr.se implications can only be defined by a gradual process of judicial decision\" (Per Starke J., South Attstralia v. Commonwealth-65 CLR 373, 447. (Emphasis supplied).\n\n''The Federal character of the Australian Constitution carries implications of its own ..... , Therefore it is beyond the power of either to abolish or destroy the other\". (Per Starke J. Melbourne Corporation v. Commonwealth-74 CLR 31 at 70). (Emphasi• supplied).\n\n\"The Federal syst\\om itself is the foundation of the restraint upon the use of the power to control the State ...... Restraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other ...... \" (Per Dixon J.-Me/bourne Corporation v. Commonwealth-74 CLR 31 at 81-2).\n\nI may now refer to State of Victoria v. The Commonwealth(') which discusses the question of implications to be drawn from a constitution like the Australian Constitution which is contained in the Commonwealth Act. It gives the latest view of that court 01> the subject.\n\n( 1 ) [1971] 45 A.L.R.J. 251; 252; 253.\n\n...\n\nKESAVANANDA V. KE!lALA (Sikri, C.J.) ' 145\n\n The point at issue was whether the Commonwealth Pariiament, in the exercise of its power under s. 51Cil) of the Constitution (subject to the Constitution, to make laws with respect to taxation, but so as not to discriminate between States or parts of States) may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. ·\n\nAnother point at issue was 1he status of the Commonwealth and the States under the Constitution, and the extent to which the Cpmmon wealth Parliament may pass laws binding on the States, considered generally and historically, and with particular reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discu; sion on the latter question that is relevant to the present case.\n\nThere was difference of opinion among thc~Judgcs. Chief Justice Barwick held as follows :-\n\n\"The basic principles of construction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129 (the Engineers' case) Lord Selborne's language in Reg. v. Burah\n\n(1878) 3 App. Cas. 889 at pp. 904-905, was accepted .and applied as was that of Earl Loreburn in Attorney.General for Ontario v.\n\nAttorney-General for Canada (1912) A. C. at 583\".\n\nAccording to the Chief Justice, the Court in Engineeres' case unequivocally rejected the doctrine that there was an \"implied prohibition\" in the Constitution against the exercise in relation, to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to he founded upon some suwoscd necessity of \"protection\", as it were, \"against the aggression of some outside and possibly hostile bo<ly\". The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate an<Nlot by the judiciary. \"The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with kno;.vledge of the combined fabric of the common law, and the statute law which preceded it and then lucet ipM per see\" (p 253).\n\nNow this is the 'udgment which is relied on by Mr. Seervai and the learned Attorney (!encral. On the other hand, reliance is placed by Mr. Palkhivala on Menzies J's judgment : ·\n\n\"Docs the fact that the Constitution is \"federal\" carrv with it implications limiting the law-making powers , of, the Pir)iamcnt of the Commonwealth with regard to the States ?\n\n146 SUPBEME COURT BEPORTS [ 1973] Supp. s.C.Il.\n\nTo this questin I have no doubt, both on principle and on authority, that an affirmative answer must be given. A constitution providing for an indissoluble federal Commonwealth must protect both Commonwealth and States. The Stat.cs arc not outside the Constitution. They arc States of the Commonwealth ; s. 106.\n\nAccordingly, although the Constitution docs, clearly enough, subject the States to laws made by the Parliament, it does so with some limitation.\" (p. 262).\n\nAfter making these observations, the learned Judge examined authorities and he found support in M albourne Corporation v. The\n\nCommonwealth('). He then examined various other cases in support of the above principles.\n\nThe other passages relied on by the petitioners from the judgments of the other learned Judges on the Bench in that case are as follows :-\n\nWindcyar J.\n\n\"In each case an implication means that something not expressed is to be understood. But in the one case, this involves an addition to what is expressed : in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the Constitution : and I consider it is the sense that Dixon J. intended when in Auttralian National Airways Pty. Ltd. v. The\n\nCommonwealth (1945) 71 C.L.R. 29, he said (at p. 85) : \"We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not sec why we should be fearful about making implications\". His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake (1958) 99 C.L.R. 132 at p. 144. I said in Spratt v. Hermes (1965) 114 C.L.R. 226, at p. 272, that it is well to remember it. I 91ill think so. The only emendation that I would venture is that I would prefer not to say \"making implications\", because our avowed task is simply the revealing or uncovering of implications that are already there.\n\nIn Mnibourne Corporation v. The Commonwealth (1947), 74 C.L.R. 31, Starke J. said (at p. 70) : \"The federal character of the Australian Constitution carries implications of its own\" .... (p. 268). • • • • • •\n\n(') (1947] 74 C.L.R. 31.\n\nKESAVANANPA ti. KERALA (Sikri, C.J.) 147\n\n\"The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmonwealth are not to be narrowed or .limited by implications .. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter.\n\nThese implications, or perhaps it were better to say underlying assumptions of the Constitution, relate to the use of a power not to the inherent nature of the subject matter of the law. Of course whether or not a law promotes peace, order and good government is for the Parliament, not for a court, to decide. But a law although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth.\" •. ;. (p. 269).\n\n* .. * .. * * Gibbs J.\n\n\"The ordinary principles of statutory construction do not preclude the making of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial legislature in enacting the Constitution Act was to give effect to the wish of the Australian people to join in a federal union and the purp9se of the Constitution was to establish a federal, and not a unitary, system for the government of Australia and according! y to provide for the distribution of the powers of government between the. Commonwealth and the States who were to be the constituent members of the federation.\n\nIn some respects the Commonwealth was placed in a position of supremacy, as the national interest 'required, but it would be inconsistent with the very basis of the federation tha( the Commonwealth's powers should extend to reduce the States to such a position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth\n\nexercised its powers, rather than on the legal limits of the powers themselves. Thus, the purpose of the Constitution, and the scheme by which. it is intended to be given effect, necessarily giv!! rise to implications as to the manner in whicl1 the Commonwealth and the States respectively may exercise thdr powers, vis-a-vis each other.\" ..•. (p. 275).\n\n148 suPREME couaT UPOlTS [Im] Supp. i.c.L\n\nWynes• in discussing the amendment of the Constitutions oE the Sillies of Australia sums up the position thus. I may refer only to die propositions which arc relevant to our case.\n\n(1) Every State legislature has by viritue of sec. 5 full powers of amendment of any provision respecting its constitution powers and procedures.\n\n(2) But it cannot (semble) alter its \"representative\" character. (3} The \"Constitution\" of a Legislature means its composition, form or nature of the House or Houses, and excludes any reference to the Crown.\n\n(6) No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. A law purporting to effect this object would be void under sec. 2 of the Act as being repugnant to sec. 5 thereof.\n\nFor proposition (2) above, reference is made in the footnote. to Taylor v. The Attorney-General of Queensland.(') The relevant passages which bear out the second proposition are :\n\n\"I take the constitution of a legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.).\n\n\"I read the words \"constitution of such legislatme\" as inCluding the change from a unicameral to a bicameral system, or the reverse.\n\nProbably the \"representative\" character of the legislature isa basic condition of the power relied on, and is preserved by the word \"such,\" but, that being maintained, I can see no reason for ;:uitting down the plain natural meaning of the words in question sb as to exclude the power of a self-governing community to say that for State purposes one House is sufficient as its organ of legislation.\" (p. 474 per-Issacs J.). (For proposition No. 3, see Taylor v. The Attorney-General of Q11ee11sland(') and Clayton v. Heffron.)(').\n\nThen dealing with the Commonwealth Constitution, he states : \"Another suggested limitation is based upon the distinction between the covering sections of the Constitution Act and the Const:tution\n\n•Wynes Legislati\\e, Executive and Judicial Power in Australia, FOOrth Edn.\n\nP' 5o3.\n\n. (') 23 C.L.R. 457.\n\n( 2) [1960] 105 C.L.R. 214; 251.\n\n!<£SAVANANDA V. KERALA (Sikri, C.J.) 149\n\nitself; it is admitted on all sides that sec. 128 does not penp.it of any amendment to those sections. (And in this respect the Statute of Westminster does not confer any new power of amendmentindeed it is expressly provided that noihing in the statute shall be deemed to confer any power to repeal or alter the Constitution of the Constitution Act otherwise than accordance with existing law.) In virtue of their character of Imperial enactments the covering sections of the Constitution are alterable only by the Imperial Parliament itself. The question is, admitting this principle, how far does the Constitution Act operate as a limitation upon the amending power ? It has been suggested th\"t any amendment which would be infonsistent with the preamble of the Act referring to the 'indisso!Uble' character and the sections which refer to the \"Federal\" nature of the Constitution, would be invalid. There has been much conflict of opinion respecting this matter ; the view here taken is that the preamble in no wise effects the power of alteration.\" (p. 505).\n\nIn view of this conflict, no assistance can be derived from academic writing.\n\nTbe ca<e of The Attorney Genera! of No1Ja Scotia and The .Attorney General of Canada and Lord Nelson Hotel Company Umitcd(') furnishes another example where limitations were impiied. 'The Legislature of the Province of Nova Scotia contemplated passing an act respecting the delegation of jurisdiction of the Parliament of -Canada to the Leg'slature of Nova Scotia and vice verm. The question arose whether, if enacted, the bi\\! would be constiutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia, and dc!egation by that Legislature of powers, exclusive!:· vested in Provincial Legislature under s. 92 of the Act, to Parliament.\n\nThe decision of the Court is summarised in the headnote as follows:\n\n\"The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be. Ne:ther is capable therefore of delegating to the other the powers with which it has been Yested nor of the receiving from the other the powers with which the other has been vested.\"\n\n( 1) [1951] S.C.R.-Canada-31.\n\n150 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nThe Chief Justice observed :\n\n\"The consitution of Canada does llQt belong either to Parliament, or to the Legislatures ; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislaite exclusively on the subject matters referred to it by section 92.\" (p. 34).\n\nHe further observed :\n\n\"Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Convention; Reference (1937) A.C. 326)\", \"Water, tight compartments which are an essential part of the original structure.\" (p. 34).\n\nHe distinguished the cases of In re Gray(') and The Chemical Reference(') by observing that delegations such as were dealt with in these cases were \"delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the Bill now submitted to the Court.\"\n\nKerwin, J., referred to the reasons of their Lordships in In Re The Initiative and Referendum(') Act as instructive. After referring to the actual decision of that case, he referred to the observations of Lord Haldane, which I have set out later while dealing with the Initiative & Referendum case and then held :\n\n{) \"The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division.\" (p. 38).\n\nTaschereau, J., observed :\n\n\"It is a well settled proposition of law that jurisdiction cannot be conferred by consent. None of these bodies can be vested directly or indirectly with powers which have been denied them by the B.N.A. Act, and which therefore are not within their constitutional jurisdiction.\" (p. '10).\n\nHe referred to a number of authorities which held that ntlther the Dominion nor the Province can delegate to each other powers they do not expressly possess under the British North Amerio> Act.\n\n(') [1918} 57 Can. S.C.R. 150. (') (1943} S.C.R. I-Canada.\n\n(') (1919) A.C. 935.\n\nJCESAVANANDA \"· KE11ALA (Sikri, C.J.) lSl\n\ndistinguished cases like Hodge v .. The Queen,(') In Re Gray,(') Shannon v. Lower Mainland Dairy Products Board,(') and Chemicals Reference(') by observing :\n\n\"In all these cases of delegation, the authority delegated its powers to subordinate Boards for the purpose of carrying legislative enact- . ments into operation.\" (p. 43)\n\nJustice Rand emphasized that delegation implies subordination and subordination implies duty.\n\nJustice Fauteux, as he then was, first referred to the following obscrvatiooo of Lord Atkin in Attorney General for Canada v. Attorney\n\nGeneral for Ontario(') :\n\n\"No one can doubt that this distribution (of powers) is one of the most essential conditions, probably the most essential condition, in the inter-provincial compact to which the British North America Act gives effect.'' He then observed : \"In the result, each of the provinces, enjoying up to the. time of the union, within their respective areas, and quoad one another, an independent, exclusive and over...all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authotity to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by wliih the Fathers of Confederation intended-and their intentions were implemented in the Act-to \"protect the diversified interests of the several provinces and secure the efficiency, harmony and permanency in the working of the union.\" (p. 56).\n\nIn the case just referred to, the Supreme Court of Canada implied a limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was no express limitation, in terms, in ss. 91 and 92 of the Canadian Corutitution. This case also brings out the point that delegation of law makng power can only be to a subordinate body. Apply the ratio of this decision to the present case, it cannot be said that the\n\n( 1) (1883) 9, App. Cas. 117.\n\n( 2 ) (57) Can. S.C.R. 150.\n\n( 8) [1938] A.C. 708. (') [ 11143 J S.C.l. 1-c.n.da . .\n\n(\") [1937] A.C. 326, 35L\n\n152 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nState Legislatures or Parliament acting in its ordinary legislative capacity, are subordinate bodies.to Parliament acting under art. 368 of the Constitution. Therefore it is impermissible for Parliament under art. 368 to delegate its functions of amending the constitution to either the State legislatures or to its ordinary legislative capacity. But I will refer to this aspect in greater detail later when I refer to the case In re the Initiative and Re, ferendum Act.\n\nIn Canada some of the Judges have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution i.e. \"with a Constitution similar in principle to that of the United Kingdom.\" Some of these observations are :\n\n\"Although it is not necessarv, of course, to determine this question for the purposes of the present appeal, the Canadian Constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate.\" (Per Abbot ). Switzmen v. Elbling-1957 -Can. S.C. 285 at 328). \"I conclude further that the opening paragraph of the preamble to the B.N.A. Act 1867 which provided for a 'Constitution simi- .•ar in principle to that of the Uni, ted Kingdom', thereby adopted the >ame constitutional princ' pies and hence S. 1025A is contrary to the Canadian Constitution, and beyond the competence of Parliament or ny provincial legislature to enact so long as our Constitution remains in \\ts present from of a constitutional democracy.\" (Per O'Halloran J.A.-Rex v. Hess-1949 4 D.L.R. 199 at 208). 'in Re Alberta Legislation, (1938) 2 D.L.R. 81, S.C.R. 100, Sir Lyman P. Dutt C.J.C. deals with this matter. The proposed legislation did not attempt to prevtnt discussiofl of affairs in newspapers but rather to compel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M. R. in fames v. Commonwealth of Aust1<::1/ia, (1936) A.C. 578 at p. 627 freedom of discussion means \" 'freedom governed by\n\nlaw'\" he says at p. 107 D.L.R., p. 133 S.C.R. : \"It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary mstitutions.\"\n\nHe deduces authority to protect it from the principle that the \"powers 1'eq11isit~ for the preservation of the con.rtitution arise by a necessary implication of the Confederation Act as a whole.\" (Per Rand J.-Samur v. City of Quebec-(1953) 4 D.L.R. 641 at 671). (Emphasis supplied).\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 151\n\nIt is, however, noteworthy that the Solicitor-General appearing on behalf of the Union of India conceded that implications can arise from a Constitution, but said that no implication necessarily arises out of the provisions of Art. 368.\n\nI may now refer to another decision of the Judicial Committee in Iiya11gc's case,(') which was relied on by Mr. Secrvai to show that an .uncndment of the constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble.\n\nThe Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted by the Supreme Court of Ceylon for various offences like conspiring to wage war against the Queen, etc.\n\nThe two relevant arguments were : \"The first is that the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice. The 1962 Acts, it is said, arc contrary to such principles in that they not only arc directed against individuals but also Cl' post facro create crimes and punishment, and dcstroyfair safeguards by which those individuals would otherwise be protected.\n\nThe appellants' second coutcntion is that the 1962 Acts offended against the Constitution in that they .amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which is outside the legislature's competence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains.\" (p. 283).\n\nMr. Sccrvai relics on the answer to the first contention. According to Mr. Sccrvai, the answer shows that constituent.power is different from, legislative power and. when constituent power is given, it is exhaustive leaving .nothing uncovered.\n\nThe Judicial Committee after referring to passages from ''The Sovereignty of the British Dominions\" by Prof. Keith, and \"The\n\nSttutcs of Westminster and Dominion Status\" by K. C. Whcarc, observed. at page 284 : ·\n\n ·\"Their Lordships cannot accept the view that the lcgislatiirc while' rcmoying the ftttcr of.repugnance to English law, left in Cl'istcncc-\n\n(1) [1967] 1 A.C. 259.\n\n154 SUPREME COUJlT llpOJl.TS [ 1973] Supp. s.c.11..\n\na fetter of repugnance to some vague unspecified Jaw of natural justice. The terms of the Colonial Laws Validity Act and especially the words \"but not otherwise\" in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy ...... \"\n\nThe Judicial Committee referred to the Ceylon Independence Act, 1947, and .. the Legislative Power of Cey Ion and observed :\n\n\"These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Acb of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State\n\n(see lbralcbbe \\'. The Q11een-(l%4) A.C. 900)\"\n\nMr. Seervai sought to argue from this that similarly the amending power of Parliament under Art. 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preambk. We are unable to appreciate that any analogy exists between Mr. Palkhivala's argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Art. 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court, be considered vague.\n\nThe case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with \"judicature\" and the Judges, the Board observed : ''These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They arc wholly appropria.te in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.\n\nThe Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that hence-forth it should pass to or be shared by, the executive or the legislature.\"\n\nThe Judicial Committee was of the view 'that there \"exists a . separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature.\" The Judicial Committee cut down the plain words of scc::ion 29(1) thus: '\n\nIWAVANANDA ti, KERALA (Sikri, C.).1 155\n\n\"Section 29Cl) of the Constitution says:\n\n\"Subject to the provisions of this Order. Parliament shall have power to make laws foi the peace order and good government of the Island\". These words have habitualJly been construed in their fullest scope. Section 29(4) provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature-e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being triedif in law such usurpation would otherwise be contrary to the Constitution.\" (p. 289).\n\nIn conclusion the Judicial Committee held that there was interference with the functions of the judiciary and it was not only the likely but the intended effect of the impugned enactments, and that was fatal to their validity.\n\nTheir Lordships uttered a warning which must always be borne in dealing with constitutional cases : \"what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution.\" This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had pascd the legislation because it was beset by a grave situatipn and it took grave measures to deal with it, thinking, one must presume, that it had power 10 do so and was acting .rightly. According to their Lordships that consideration was irrelevant and gave no validity to acts which infringed the Constitution.\n\nMcCau•ley \\', The King(') was strongly relied on by Mr. Seervai.\n\nThe cae was on appeal from the decision of the High Court of Australia, reported in 26 C.L.R. 9. Apart from the questions of interpretation of sub-s. (6), s. 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend a provision of the Constitution oi Queensland without enacting a legislative enactmco•\n\n<1> [1920] A.C. 691.\n\n156 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.\n\ndirectly .amending the Constitution. The respondents before the Board had contended as follows : ·\n\n\"But an alteration. to be valid must be made. py direct legislative .enactment. The Constitution can be altered but cannot be disregarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Cooper'; case('). (p. 695).\n\nThe appellants, on the other hand, had . contei; ided that \"the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the constitution of Queensland, including the judicial institutions of the State, and the tenure of the judges ........ All the. laws applying to Queensland which it is competent to the Queensland Legislature to alter can be altered in the same manner by ordinary enactment.\"\n\nThere was ditference of opinion in the High Court. Grit!ith, C.J., was of the opinion that the Parliament of Queensland could not merely by enacting a law inconsistent with the Constitution Act of 1867 overrule its provisions, although it might be proper formality pass. an Act which expressly altered or repealed it. Isaacs and Rich JJ., with whom the Board found themselves in almost complete agreement, held to the contrary. The F.oarJ, in dealing with the question, first. referred to the \"distinction between constitutions the terms of which may be modified or repealled with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality, and in some cases by a spec(ally convened assembly.\" ·\n\nThen Lord Birkenhead, L.C., observed at page 704 : \"Many different terms have been employed in the .text-boiiks to distinguish these two constrasted forms - of constitution. Their special qualities may perhaps be exhibited as clearly by ca.lling the one a controlled and the other an uncontrolled constitution as by any other nomenclature. Nor is a constitution debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development but finds its genesis in an originating document which may. Contain some conditions which cannot be altered except by the pawci which gave it birth: It. is of the gr\":3test miportance ~· notice that . . where the comtitutmn 1• uncontrolled the q>nseqµences .. of its. frci:-.\n\ndom admit of no qnalification whatever. The diictrine,1is.91Tdcd to eyry .proper consequer1ce with ca~ and inel'Ol'.Jlblc.pr, cdSiOft, Thus when one of the learned Judges m the Court below said . ' . ?\n\n(') [ 1907] 4 C.L.R. 130'\n\nUSAVANANDA V. ll1lALA (Sif{ri, C.J.) 157\n\nthat, according to the appellant, the constitution could be ignored as if it were a Dog Act, he was in effecn merely expressing his opinion that the constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law th~ legislative document or documents which\n\ndefined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter.\"\n\nThen, the Judicial Committee proceeded to deal with the Comlitution oi Queensland and held that it was an uncontrolled constitution. Later, their Lordships observed :\n\n\"It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powen of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own constitutional salvation.\" (p. 706).\n\nMr. Seervai sought to deduce the following propositions from thiJ case:\n\nFirstly-(!) Unless there is a special procedure prescribed 'foe\n\namending any part of the Constitution, the constitution was uncontrolled and could be amended by an Act in the manner prescribed for enacting ordinary laws, and therefore, a subsequent law inconsistent with the Constitul!on would f>rO tnto repeal the \" Constitution ;\n\nSeeondly-(2) A constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending them than is prescribed for amending an ordinary law, in which case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected ;\n\n!hird~(3) Implications oc limitation of power ought not be imported from grneral co11cepts but only from express or necessarily implied limitations (i.e. implied limitation without which a constitution cannot be worked) ; and\n\nFourtlily-(4) The British Parliament in granting the colonial legislatures power of legislation as far back as 1865-s. 2~&efuscd to put limitations of vague character, like general principles of. law, but limited those limitations to objective standards like\n\nstatutes and provisions of any Act of. Parliament or order or regulation made under the Aro of. Parliament.• lt-!6S.C.1Ddl1/73\n\n158 SUPREME Cl)URT REP01'.TS (1973] :Sup)?. $, C.R.\n\nI agree that the first and the second propositions are deducible from McCawley's case but I am unable_ to agree with the learned counsel that the third proposition enunciated by him emerges from the case.\n\nThe only implied limitation which was urged by the learned counsel for the respondents was that the Queensland legislature should first .directly amend the Constitution and then pass an act which would <Jtherwise have been inconsistent if the constitution had not been amen- , ded. It appears from the judgment of Isaac, J., and the Board that two South Australia Judges had earlier held that the legislation must be\n\n\"with the object of altering the constitution of the legislature\". Lord :Selborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their view and recommended the enactment of a statute like the Colonial Laws Validity Act, 1865.\n\nThe fourth proposition states a fact. The fact that British Parliament in 1865 refused to put so ailed vague limitations does not assist us in deciding whether there cannot be implied limitations on the .amending power under Art. 368.\n\nI shall examine a little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawley's case is authority only for the proposition that if the constitution is uncontrolled then it is not necessary for the .legislature to pass an act labelling it as an amendment of the constitution; it can amend the constitution like any other act.\n\nAttorney-General for New South Wales v. Trethowan(') was concerned really with the interpretation of s. 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New\n\nSouth Wales. The Constitution Act, 1902, as amended in 1929, had inserted s. 7 A, the relevant part of which reads as follows :\n\n\"7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of sub-s. 6 of this section, shall its constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within sub-s. 1 of his section shall not be presented to the Governor for His Majesty's assent until the Bill has been approved by the electors in accordance with this section. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty's assent.\n\n(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the.following sections of this Act, namely, ss. 13, 14, 15, 18, 19, 20, 21 and 22.\"\n\n( 1 ) [1932] A.C. 526.\n\nXESAVANA!ltlA fl, Kl!MLA (Sikri, C.J.) 159\n\nTowards the end of 1930 two bills passed by both Housca of the New South Wales lcgis1ature. The first Bill enacted that s. 7A\n\nabove referred to was repealed, and the second Bill enacted by clause 2, sub-s. I. \"The Legislative Council of New South Wales is abolished.\"\n\nThe contentions advanced before the Judicial Committee were :\n\n\"The appellants urge: (1) That the King, with the advice and consent of the Legislative Council and the Legislative Assembly, had full power to enact a Bill repealing s. 7 A.\n\n(2) That sub-s. 6 of s. 7 A of the Constitution Act is void, because :\n\n(a) The New South Wales Legislature has no power to shaclcle or control its successors, the New South Wales constitution being in substance an uncontrolled \"cons4tution\"; (b) It is repugnant to s. 4 of the Constitution Statute of 1855 ; (c) It is repugnant to s. 5 of the Colonial Laws Validity Act, 1865.\n\nFor the respondents it was contended: (1) That s. 7A was a valid amendment of the constitution of New South Wales, validly enacted in the manner prescribed, and \\\\'.as legally binding in New South Wales.\n\n(2) That the legislature of New South Wales was given by Imperial statutes plenary power to alter the constitution, powers and procedure of such legislature.\n\n(3) That when once the legislature had altered either the constinition or powers and procedure, then the constitution and powers and procedure as they previously existed ceased to exist, and were replaced by the new constitution and powers.\n\n( 4) That the only possible limitations of this plenary power were : (a) it must be exercised according to the manner and form prescribed by any Imperial or colonial law, and (b) the legislature muat continue a representative legislature according to the definition of the Colonial Laws Validity Act, 1865.\n\n(5) That the addition of s. 1A to the Constitution had the ' effect of : , (a) making the legislative .body consist thereafrer of the King, the Legislative Council, the. Assembly and the people for the purpose of the constitutional enactments. therein described, ox (b) imposing i manner and form of legislation in reference to\n\n:these cbnstitutional enactments ·:which 'thereafter became binding on the legislature by virtue of the colorilal Laws Validity Act, 1865, until. repealed in the manner and mode .prescribed.\n\n('6) lfhat the pawer of alttring the constitution conferred by 1, 4 of the Constitution Stattrt:e; 1855, unmt be read subject to the\n\nf60 SUPREME COUIT REPORTS [1973] Supp. s.c.R.\n\nColonial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the constitution, whether purporting to be made in the earlier Act or not.\" (p. 537).\n\nThe I udicial Committee considered the meaning and effect of s. 5 of the Act of 1865, read in conjunction with s. 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of s. 5 which reads as follows :\n\n\"Section 5. Every colonial legislature. . . . . . and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature ; provided that such laws shall have been passed in such manner and form as may from time to , time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony.\"\n\nTbe Judicial Committee interpreted sec. 5 as follows :\n\n\"Reading the section as a whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book. Beyond that, the words \"maimer and form\" arc amply wide enough to cover an enactment providing that a Bill is to be submitted to the electors and , that unless and until a majority of the electors voting approve the Bill it shall not be presented to the Governor for His Majesty's assent\"\n\nThe Judicial Committee first raised the qucstio~ : \"could that Bill, a repealing Bill, after its passage through both chambers, be lawfully 'presented for the Royal assent without having first received the approval of the clcctors in the prescribed manner I\", and answered it thus :\n\n\"In their Lordships' opinion, the Bill could not lawfully be so presented. The proviso in , the second sentence of s. 5 of the Act of 1865 states a condition which must be fulfilled before the legislature can validly exercise its power to make the kind of. laws which arc referred to in that sentence. In order that s. 7 A may be repealed (in other words, in order that that particular law\n\n\"respecting the constitution, powers and procedure\" of the legislature may be validly made) the law for that purpose most have been passed in the manner required by s. 7 A, a colonial law for the rime being in force in New Sooth Wales.\"\n\nKESAVANANDA ti. DMLA (Sikri, C.J.) 161\n\nThis case has no direct relevance to any of the points raised before us. There is no doubt that in the case before us, the impugned constitutional amendments have been passed according to the form and man- 11cr prescribed by art. 368 of our Constitution. It is, however, noteworthy that in contention No. (4), mentioned above, it was urged that notwithstanding the plenary powers conferred on the Legislature a possible limitation was th•t the legislature must continue a representative legislature according to th~ definition of the Colonial Laws Validity Act 1865. This is another illustr, ation . of a limitation implied on amending power.\n\nI may also refer to some of the ins.tances of implied limitations which have been judicially accepted in the United States; It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin (1952).\n\nAfter mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on 'Constitutional Limitations' (page 989) states :\n\n\" ...... but there are some others which are implied, and whicla under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Feclcral power to tax or the power of the several States. One 'of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason_ is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and constitutional sphere of action.\"\n\nThen he cites the passage from the Chief Justice Marshall in McC111/ock v. Maryland.(')\n\nIn \"Constitution by the United States of America\" by Corwin (1952)-page 728-729 it is stated :\n\n\"Five years after the decision in McCullock v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked tQ and did re-examine the entire question in Osborn v. Bank of the United States. In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward the arguments of great importance.\n\nIn the first place it was \"contended, that, admitting Congress to possess the\n\n ( 1) 4 L. ed. 579; 607.\n\n162 SUPREME COUU REPOR1S [ 1973} Supp. S.C.L\n\npower, this exemption ought to have been expressly assented in the act of incorporation ; and not being expressed, ought not to be implied by the Court.\" To which Marshall replied that: \"It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance.\n\nSecondly the appellants relied greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those olliccs arc, it is said, officers of Government, • • • Not so the directors of the bank,. The connection of the government with the bank, is likened to that with contractors.\" Marshall accepted thiJ analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government wercr entitled to immunity from taxation upon such transactions. Thill not only was the decision of McCullock v. Mary/anti reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades.\"\n\nWe need not examine the exact extent of the doctrine at the present day in the United States because the only purpose in citing these instances is to refute the argument of the respondents that there can- JIOt be anything like implied limitations.\n\nThe position is given at p. 731, as it existed in 1952, when the book was written. Corwin sums up the position broadly at p. 736 :\n\n\"Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed.\"\n\nRegarding the taxation of States, Cooley says at pp. 'R5-'RJ :\n\n\"If the States cannot tax the means by which the national government performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State governments. \"The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interest without them.\n\nEach of these several agencies is confined to its own sphere, and all are strictly S11bdrdinate to the constitution which limits them;· .and independent of other agencies, except as thereby made dcpenqcnt.\n\nThere is nothing in the Conuitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its la'wful baunds.\n\nUSAVANANDA V. IO!llAI.A (Si/(.ri, C.J.) 163\n\nAnd any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as i£ the intederence were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be\n\nstamped could not constitutionally be applied to the process of the State courts.; since otherwise Congrm might impose such restrictions upon the State courts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And a simiiar ruling has been made in other analogous\n\ncases. But \"the txmption of State agencies and instrumentalities from national taxation is limited to those which arc of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business.\" \"\n\nI may mention that what has been implied in the United , States i~ the subject-matter of express provisions under our Constitution (see\n\narts. 285, 287, 288 and 289).\n\nIt was urged before us that none of these cases dealt with implied limitations on the amending power.\n\nIt seems to me that four cases are directly in point.\n\nI have referred already to :\n\n1. The Bribery Commissioner v. Pedrick Ranasinghe(')\n\n2. Mangal Singh v. Union of lndia(2)\n\n3. Taylor v. The Attorney-General of Queensland(') and I will be discussing shortly In re The Initiative and Referendum Act(').\n\nWhat is the necessary imprication from all the provisions of the Constitution ?\n\nIt seems fo me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social .and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in art. 368 of provisions like arts. 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word\n\n\"amendment\" in the widest sense.\n\n( 1) [1965] Af:.. 172.\n\n\n(') 23 C.L.R. 457. (') (1919) Af:.. 935.\n\n} 64 SUPUMK COUJ.T llPOITS ( 1973) Supp. 0S.C.L\n\n It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended ?'1t of existence.\n\nIt seems also to have been a common understanmg that the fundamental features of the Constitution, namely, sccul~1s'!1, democracy and the freedom of the individual would always subsist m the welfare state.\n\nIn view of the above reasons, a necessary implication arises that there arc implied limitations on the power of Parliament that the expression \"amendment of this Constitution\" has consequently a limited meaning in oiir Constitution and not the meaning suggested by the respondents.\n\nThis conclusion is reinforced if I consider the consequences of the contentions of both sides.\n\nThe respondents. who appeal fervently to democratic principles, urge that there is Iio limit to the' powers of Parliament to amend the Constitution.\n\nArt. 368 .can itself .be amended to make the Constitution completely flexible or extremely rigid and unamendablc.\n\nIf this is so, a political party with a tw<>-third majority in Parliament for a few years coula so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamendable or extremely rigid.\n\nThis would no doubt invite extra-constitutional revolution.\n\nTherefore, the appeal by the respondents to democratic princip!Cs and the necessity of having absi> lute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.\n\nHowever, if the mening I have suggested is accepted a sociaL and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.\n\nFor the aforesaid reasons, I am driven to the conclusion tl1at the expression \"amendment of this Constitution\" in art. 368 means any addition or change in any of the provisions of the Constitiution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles.\n\nApplied to fundamental rights, 'it would mean that. while fundamental rights\n\ncannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.\n\nIt is of course for Parliiament to decide whether. an ent is •ecessary.\n\nThe Courts will not be concerned with wls!1om. of the amendment.\n\nltESAVANANDA \"· KllALA (Sikri, C.J.) 165\n\nH this meaning is g1vcn it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity d every citizen.\n\nIt is urged by Mr. Seervai that we would be laying down a very unsatisfactorv test which it would be diflicult for the Parliament to comprehcnci' and follow.\n\nHe said that the constitution-makers had <liscarded the concept of \"due process\" in order to have something certain, and they substituted tho words \"by authority of law\" in art. 21.\n\nI am unable to sec what bearing the dropping of the words \"due process\" has on this question.\n\nThe Constitution itsel:f has used words' like \"reasonable restrictions\" in art. 19 which do not bear an ex;;// meaning, and which cannot be defined with precision to fin in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature arc reasonable or not. Further, as Lord Reid observed in Ridge v.\n\nBaldwin(') :\n\n\"In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless.\n\nBut I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regai-d as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that.\"\n\n(emphasis supplied).\n\nIt seems to. me that the concept of amendment within the contours d the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.\n\nThe learned Attorney-General said that every provision of the Constitution is essentiah; otherwise it would not have. been put in the Constitution.\n\nThis is true.\n\nBut this docs not place every provision d the Constitution in the same position.\n\nThe true position is mat every provision of the Constitution can be amended provided in die result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features : - .\n\n{l) Supremacy of. the Constitution;\n\n(2) Republican and Democratic form of Government.\n\n{ 1) (1964] A.C. 40; ~.\n\n166 SUPliME COURT liPORTS [ 1973 j Supp, S.C.R.\n\n(3) Secular character of the Constitution;\n\n( 4) Separation of powers between the Legislature, the executive and the judiciary;\n\n(5) Federal character of the Constitution.\n\nThe above structure is built on the basic foundation, i.e., the dignity and freedom of the individual.\n\nThis is of supreme importance. This cannot by any form of amendment be destroyed.\n\nThe above foundation and the above basic features are easily di$- cernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.\n\nIn connection with the question of abrogation of fundamental rights, Mr. Seervai boldl'y asserted .that there was no such thing as natural or ina!'ienable right$ because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example, art. 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens.\n\nThe answer seems to be that they arc natural rights but our country does not think it expedient to confer these fundamental rights, mentioned in art. 19, on non-citizons.\n\nOther rights have been conferred on non-citizens because the constitution-makers thought that it would not be detrimental to the interests of the country to do so.\n\nHe then said that even as far as citizens arc concerned, there is power to modify those rights under art. 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces.\n\nThis power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country.\n\nBut it does not mean that the rights cease to be natural or human rights.\n\nHe then said that similarly art. 34 restricts fundamental rights while martial law is in force in any area.\n\nThis again is a case where the security of the country is the main consideration.\n\nCitizens have to undergo many restrictions in the interest of the country.\n\nHe then pointed out arts. 358 and 359 where certain rights arc suspended during Emergency.\n\nThese provisions are again based on the security of the country.\n\nHe also relied on the words \"rights conferred\" in art. 13(2) and \"enforcement of any right< conferred by this Part\" to show that they were not natural or inalienable and could not have been claimed by them.\n\nThere is no question of the sovereign people claiming them from an outside agency.\n\nThe people acting through the Constituent\n\nµs.\\VA!fANllA fl, EDAf.\\ (Siri,. C.J.) 167\n\nAssembliy desired that the rights mentioned in Part III sha~ be guar; anteed and therefore Part III was enacted. In the context conferred docs not man that sme superior power had gran_ted the~ right~. I~\n\nis very much like a King bestowing the title of 'His Iropcnal Ma1esty on himself.\n\nI am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Dedaration describes some fundamenal rights as inalienable. ·\n\nVarious decisions of this Court describe fundamental rights as 'natural rights' or 'human rights'.\n\nSome of these decisions arc extracted belpw.\n\n\"There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal, which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights so-ca/Jed, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in the American Model.\" (Per Patanjali Sastri, J., in Gopalan\n\nv. State of Madras(')) (emphasis supplied).\n\n(ii) \"That rticle (Article 19) enumerates certain freedoms under the caption \"right to freedom\" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent m the status of a citizen of a free country.\" (Per Patanjali Sastri, C. J., in State of West Bengal v. Subodh Gopal Bose(2)) (emphasis spplied).\n\n\"I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizn 'to acquire, hold and dispose of property' with other natural rights and freedoms inherent in the status of a free citizen. and cmOO?ied them in article 19(1) ........ (ibid, p. 597)\" (emphasis\n\nsupplied).\n\n( 1) [1950] S.C.R. 88; 198-199.\n\n( 2) [1954] S.C.R. 587; 596.\n\n168 SUPllMF. couitT REPORTS [ 1973] Supp. s.c.R.\n\n\"For all these reasons, I am of opinion that under the scheme of the Constitut'ion, all those br<>ad and basic freedams inherent in the stat#! of a citizen as a free man are embodied and protected from invasion by the State under clause (1) of article 19 ......... \"\n\n(ibid p. 600) (emphasis supplied).\n\n(iii) \"The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share m the Government of the country and other spheres.\n\nThe people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also sometime1 of non-\n\n. citizens, and made them inviolable except under certain conditions.\n\nThe rights thus kept back are placed in Part III of the Constitution, which is headed 'Fundamental Rights', and the conditions under which these rights can be abridged are also indicated in that Part.\" (Per Hidayatullah J., in Ujjambai v. State of U. P.(')) .(emphasi.! supplied).\n\nThe High Court of Allahabad sas described them as follows :\n\n-(iv) \" ........ man ha,, certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights .......... \"\n\n\"Suffice it to say that they represent a trend in the democratic thought of our age.\" (Motilal v. State of VJ'.(')) (emphasis supplied).\n\nMr. Seervai relied on the observations of S. K. Das, J., in Basheshar Nath v. CJ.T(') :\n\n\"I am of the view that the doctrine of 'natural rights' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution.\"\n\nI must point out that the learned Judge was expressing the minority opinion that there could be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on art. 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fungamental rights enshrined in art. 14 but also of any other fundamental rights guaranteed by Part III of the Constitution.\n\n(') (1963] I S.C.R. 778; 926-7.\n\n( 2) J.L.R. [1951] I All. 269; 387-8. (') [1959] Supp. (!) S.C.R. 528; 605.\n\nltllSAVANANDA I/, lillALA (Sikri, C.J.) 169\n\nArticle 14 has been described variously as follows :\n\n{l) \"as the basic principle of republicanism\" (per Patanjali Sastri\n\nC. J. in State of West Bengal v. Anwar Ali Sarlf..!Ir(') )\n\n(2) \"as a principle of republicanism\" (per Mahajan, J., Ibid. p. 313)\n\n(3) \"as founded on a sound public policy recognised and' valued in all civilized States\" (per Das C. J., : Basheshar Nath v.\n\nC. I. T.('))\n\n( 4) \"as a necessary corollary to the high concept of the rule of law\"\n\n(per Subba Rao, C.J., in S11twant Singh v. Passport Officer('))\n\n(5) \"as a vital principle of republicat' institutions\" (American\n\n, Jurisprudence, Vol. 16, 2d. p. 731, art. 391)\n\nHow would this test be operative vis-a-vis the constitutional amendments made hithertp ? It seems to me that the amendments . made by the Constitution (First Amendment) Act, 1951, in arts. 15 and 19, and insertion of art. 31A (apart from the question whether there was delegation of the power to amend the Constitution, and apart from the question as to abrogation), and the amendment made by the Constitution (Fourth Amendment) Act in art. 31(2), would be within the amending power of Parliament under art. 368.\n\nReference may be made to Mohd. Maqbool Damnoo v. State of /ammu and Kashmir(') where this Court repelled the argument of the learned counsel that the amendments made to ss. 26 and 27 of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution.\n\nThe arguments of the learned counsel was that fundamentals of the Jammu and Kashmir State Constitution had been destroyed.\n\nThis argument was refuted in the following words :\n\n\"But the passage cited by him can hardly be av>; iled. of by im for the reason that the amendment impugned by him, m the hght of what we have aheady •lated about the nature of the explanation to Article 370 of our Constitution, dnes not bring about any alteration either in the framework or the fundamentals of .the Ju and Kashmir Constitution. The State Governor s.ttll OOl_lnues to be the head of the Government aided by a council of mm1sters\n\n(') [1952] S.C.R. 284, 293.\n\n(') [1959] S11pp. (I) s.c.R. 528, 551. (') [1967] 3 S.c.R. 525; 542. (') [1972];1 s.c.c. 536; 546.\n\n170 SUPREME COUJ.T llEPO!l'R [1973] Supp. S.C.lt.\n\nand the only change affected is in his designation and the mode of his appointment.\n\nIr is not as if the State Government, by such a change, is made irresponsible to the State Legislature, or its fundamental character as a responsible Government is altered.\n\nJust as a change in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-\n\nRiyasat, so too a change had been brought about in his designa, tion from that of Sadar-i-Riyasat to the Governor. That was necessitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat.\n\nThere is no question of such a change being -0ne in the character of that Government from a democratic to a non-democratic system.\"\n\n' Before parting with this topic I may deal with some other arguments addressed to us. Mr. Seervai devoted a considerable time in expounding principles of construction of statutes, including the Constitution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in art. 245 and art. 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judicial Committee in interpreting ss. 91 and 92 of the Canadian Constitu- .tion. I have no quarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of art. 368. The fact that legislative entries are given wide interpretation has no relevance to the interpretation of art. 368. The second set of\"\"ases referred to deal with the question whether it is legitimate to consider consequences of a particular construction.\n\nHe referred to Vacher & Sons v. London Society of Compositors('). This decision does not support him in the proposition that consequences of a particular construction cannot be considered, for Lord Machaghten observed at p. 117 :\n\n\"Now it is \"the universal rule,\" as Lord Nensleydale observed in Grey v. Pearson(') that in construing statutes, as in construing all other written instruments \"the grammatical and crdinary\" sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.\"\n\nThen he observed at p. 118 :\n\n\"In the absence of a preamble there can, I think, be only tw( cases in which it is permissible to depart from the ordinary an(\n\n( 1 ) [1913] A.C. 107; 117-118.\n\n( 2) [1857] 6 H.L.C. 61; 106.\n\nUMVANANllA f>'. l.'llAU (Sikti, C.J.) 171\n\nnatural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to som~\n\nabsurdity or that there is some other clause in the body of the Acr inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is\n\nexpressed.\"\n\nLord Atkinson observed at pp. 121-122 : \"It is no doubt well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction for, as there are many things which the Legislaturr\n\nis presumed not to have intended to bring about, a construction which would not lead to any one of these things should be prrferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vog6ler\n\nCo.('), a Court of Law has nothing to do with the reasonableness or unreaisonablencss of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. 'If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced cl:iough it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must,\n\nsince it.S language is plain and unambiguous, be enforced, and your Lordship's House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.\"\n\nThe next case referred to is Banf of Toronto v.Lambe(2 ), but this .case is explained in Attorney-General for Alberta v. Attorney-General for Canada('). The Judicial Committee first observed :\n\n\"It was rightly contended on behalf of the appellant that the\n\nSupreme Court and the Board have no concern w; th the wisdom , of the Legislature whose Bill is attacked ; and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to a conclusion that the Bill is ultra vires. Their Lordships do not agree that this argument should prevail in a GS'C where the taxation in a practical business sense is prohibitive.~\n\n( 1) [1901] A.C. 102 at p. 107.\n\n( 2) fl887] 12 A.C. 575; 586.\n\n(') [1939] A.C. 117; 132; 133.\n\n172 SUPREME COURT REPORTS [1973] -Supp. s.c.R.\n\nThen their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe(') :\n\n\"That case seems to have occasioned a difficulty in the minds of some of the learned Judges in the Supreme Court. It must, however, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was not \"taxa tion with the Province,\" and secondly, that the tax was not a \"direct tax.\" It was never suggested, and there seems to have been no ground for suggesting, that the Act was by its effect calculated to encroach upon the classes of matters exclusively within the Dominion powers. Nor, on the other hand, was there any contention, however faint or tentative, that the purpose of the Act was anything other than the legitimate one of raising a revcnu~\n\nfor Provincial needs. . . It was never laid down by the Board that if such a use was attempted to be made of the Provincial power as materially to intcrlcre with the Dominion power, the action of the province wouW be intra vires.\"\n\nThis case further shows that serious consequences can be taken into consideration.\n\nI agree with the observations of Lord Eshcr in Queen v. fudge of City of London Court,(') cited by him. These observations are:\n\n\"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has oothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this-if the words or an Act admit of two interpretations, then they arc nor clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did net intend. to lead to an absurdity, and will adopt the other interpretation.\"\n\nHe then relied on the observations of Lord Greene, M.R.. in Grundt v. Great Boulder Proprietary Mines Ltd.(') :\n\n'There is one rule, I think, which is very clear-and this brings me back to where I srartcd, the doctrine of absurdity-that although the absurdity or the non-absurdity oE one eonclusio? as compared with another may be of assistance, and V\":f often 1~ of assistance, to the court in choosing between two possible n; igs of ambiguous words, it is a doctrine which has to be applied with\n\n( 1) [1887] 12 A.C. 575; 586.\n\n(') [1892] 1 Q.B. 273-290.\n\n( 1) [1948] 1 Ch. HS; 159.\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 173\n\ngreat care, remembering that judges may be fallible in this question of an absurdity, and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear ; it is a doctrine which must not be relied upon and must not be used to re-write the language in a way different from that in which it was originally framed.\"\n\nEarlier, he had. said at p. 158 :\n\n\" \"Absurdity\" I cannot help thinking, like public policy, is a very unruly horse ... \"\n\nAs I read Lord Greene, what he meant to say was that \"absurdity\" was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ; ambiguous words, and this is exactly the use which this Court is entitled to make of the consequences which I have already mentioned.\n\nMr. Seervai referred to State of Punjab v. Ajaib Singh('). Das, J., observed:\n\n\"We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If however two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience\n\nor make well established yr0visions of existing law nugatory.\"\n\nHe also referred to the £ofiowing passage in Collector of Customs, Baroda v. Digvijaysinghi Spinning & Weaving Mills Ltd.(') :\n\n\"It is one of the well established rules of construction that \"if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.\" It is eqally well sct_tled\n\nprinciple of construction that \"Where altt\\fnattve constructtons are equally open that alternative is to be chosen wh!ch .will be consistent with the smooth working of the system which the statute purports to be regulating ; and that alternative is to be rejected which will introduce uncertainty.\" ·\n\n( 1 ) (1953] S.C.R. 254, 264.\n\n\n-~\n\n174 SOPRJ!ME COURT REPORTS [1973] Supp. s.c.R.\n\nWhat he urged before us, relying on the last two cases just referred to, was that if \\Ve construed the y.,.•ord \"amendmt:nt'' in its narrow sense, then there would be uncertainty, friction and confusion in the working of the system, and we should therefore avoid the narrow sense.\n\nIf Parliament has power to pass the impugned amendment acts .• there is no doubt that I have no nght to question the wisdom of the policy of Perliament. But if the net result of my interpretation is to prevent Parliament from abrogating the fundamental rights, and the basic features outlined above, I am unable to appreciate that any uncertainty, friction or confusion will nesessarily result.\n\nHe also drew our attention to the following observations of Hegde, J. in Budhan Singh v. Nabi Bux(') :\n\n\"Before considering the meaning of the word \"held'', it is necessary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Construction the entire legislative process is influenced by considerations of justice and reason.\n\nJustice and reasorr constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. Jn the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.\"\n\nI am unable to appreciate how these observations assist the respondents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind.\n\nBoth Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretat; on of Article V of the Constitution of the Unite<l States and some State Constitution. Mr. Pal khiwala, on the other hand, relied on some State decisions in support of his submission~.\n\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 175\n\nArtide V of the Constitution of the United States differs greatly from Art. 368 of our Constitution For facilitv of reference Article V is reproduced below : ·\n\n\"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intients and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the oru: or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be mado prio~ to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.\"\n\nIt will be noticed that Article V provides for two steps ro be taken for amending the Constitution. The first step is proposal of an amendment and the second step is ratification of the proposal. The proposal can be made either by two thirds of both Houses of Congress or by a convention called by the Congress on the application of the legislatures of two thirds of several States.\n\nCongress determines which body shall ratify the proposal. It can either be the legislaturns of three fourths of the States or by conventions in three fourth of the States.\n\nIf a proposal is made by a Convention and ratified by three fourth of the States. in conventions it can hardly be doubted that it is amendment made by the people. Similarly if a proposa~ 'is made by the Congress and ratified by conventions there cannot be any doubt that it is the people who have amended the Constitution. Proposal by Congress and ratification by three fourth legislatures of the States can in this context be equated with action of the people. But what is important to bear in mind is that the Congress, a federal legislature, does not\n\nitself amend the Constitution.\n\nIn India,. the position is different. It is Parliament, a federal legislature, wliich is given the power to amend the Constitution except in matters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are not mentioned in the proviso. Can we say that an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while considering the proper meaning to be given to the expression \"amendment of ibis Constitution\" in Art. 368 as it stood before its amendment by the 24th Amendment.\n\nJ 76 SUPREME COURT REPORTS (1973] Supp. S.C.R,\n\nArticle V of the U.S. Constitut'ion differs in one other respect from Art. 368, There are express limitations on amending power. The first, which has spent its force, was regardihg the first and fourth clauses in the ninth section of the first article and the second relates to depnvation of a State's suffrage in the Senate without its consent. Apart from the ahove broad differences in Art. V as compared to Art. 368, the Constitution of India 'is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are : the background of the struggle for freedom, various national aspirations outlined <luting this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the complex structure of the Indian nation consisting as it does of various peoples with, different religions and languages and in different stages of economic development. Further the U.S. Constitution has no Directive Principles as has the Indian Constitution. The States in U.S. have their own Constitutions with the right to modify them consistently with the Federal Constitution. In India the States have no power to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament.\n\nI may before referring to the decisions of the Supreme Court of the United States say that that court has hitherto not been confronted with •the question posed before us : Can Parliament in exercise of its powers under Art. 368 abrogate essential basic features and one fundamental right after another including freedom of speech, freedom of religion, freedom of life ? The American decisions would have been\n\nof assistance if this fundamental question had arisen there and if the power to amend the Federal Constitution had beeri with two third majority of the Congress.\n\nThe question before the Court in Hawke v. Sminth(') was whether the States while ratifying proposals under Article V of the. Constitution were restricted to adopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by conventions therein, as decided by Congress, or could they ratify a proposed amendment in accordance with the referendum provisions contained in .State n\n\nstitutions or statutes.\n\nThe Court held that \"the determination of the method of ratification is the exercise of a national power specifically granted bv Constitution\" and \"the language of the article is plain, and admits of no doubt in its interpretation.'' The Court also held that the power\n\n( 1) 64 L. Ed. 871.\n\nKESAVANANDA fl. KERALA (Sikri, C.J.) 177\n\nwas conferred on the Congress and was limited to two methods : by action of the legislatures of three fourths of the states, or conventions in a like number of states.\n\nThe Court further held that the power to ratify a proposed amendment to the Federal Constitution had its source in the Federal Constitution and the act of ratification by the state derived its authority from the Federal Constitution to which the state and its people had alike assented.\n\nThis case is of no assistance to us in interpreting art. 368 of the Constitution.\n\nI may now refer to decision of the Supreme Court Rhode Island\n\nv. Palmer('). This case was concerned with the validity of the 18th Amendment and of certain general features of the National Prohibition Law known as Volstead Act. No reasons were given by the Court for the conclusions arrived at. The conclusions which may have some relevance for us are conclusion 4 and 5. The learned counsel sought to deduce the reasons for these conclusions from the arguments addressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the\n\n- Supreme Court by reversing the decision.\n\nCounsel sought to buttress this argument by citing views of learned Ameriqn authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given.\n\nI have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to be confident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had , been enacted by our Parliament and added to our Constitution, for I\n\nwould iscern no such taking away of Fundamental rights or altering the baSic structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution.\n\nUnited States of America v. William H. Sorague(') was concerned with the validity of the 18th Amendment. The District Court had held(') that the 18th Amendment had not been properly ratified so as to become part of the Constitution. It was the contention of the respondents before the Supreme Court that notwithstanding the plain language of Article V, conferring upon the Congress the choice of\n\n( 1 ) 64 L. Ed. 946.\n\n( 2) (75) L. Ed. 640.\n\n( 8) 44 F. (2d) 967.\n\n178 SUPREME COURT REPORTS [1973) Supp. S.C.R.\n\nmethod of ratification, as between action by legislatures and by conventions, this Amendment could only be ratified by the latter. The respondents urged that there was a difference in the kind of amendments, as, e.g. \"mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other.\" There was no question as to ambit of the power of amendment. In other words, there was no question that the subject-matter of amendment, namely, prohibition, fell within Article V of the Constitution. ·\n\nThe Court held that the choice of the mode rested solely in the discretion of the Congress. They observed :\n\n\"It was submitted as part of the original draft of the Constitiition to the people in conventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must n, mction as the delegated agent of the people in the choice of the method of ratification.\"\n\nThe Court further held that the 10th Amendment had no limited and special operation upon the people's delegation by Article V of certain functions to the Congress. ·\n\nI am w1able to sec how this case helps the respondents in any manner. On the plain language of the article the Court came to the conclusiion that the choice of the method of ratification had been entrusted to the Congress. We are not concerned with any such quc.<- tion here.\n\nfr. Seervai urged that the judgment of the Distict Court showed that the invalidity of the 18th Amendment to the Constitution could be rested en two groups of grounds ; group A consisted of grounds relating to the meaning of the word \"amendment\" and the impact of the 10th Amendment or the nature of the federal system on Art. V of the Constitution, and that Article V by providing the two alter, native methods of ratification by convention and legislature showed that the convention method was essential for valid ratification when the amendment affected the rights of the people. Group B consisted cf the grounds on which the District Court declared the 18th amend ment to be invalid and those were that \"the substance of an amend ment, and therefore of course, of an entirely new Constitution, might have to conform •to the particular theories of political science, socio. logy, economics, etc. held by the current judicial branch of the Government.\"\n\nKESAVANANDA v. KERALA (Sikri, C.J.) 179\n\nHe then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhi. wala's arguments similar to those referred to in Group B. It is true articles like Marbury's \"The Limitations upon the Amending Power, -33 Harvard Law Rev. 232'', and Mc Goveney's \"ls the Eighteenth Amendment void because of its content ?\" (20 Col. Law Rev. 499), were brought to our notice but for a different purpose. Indeed the District Judge criticised these writers for becoming enmeshed \"in a consideration of the constitutionality of the substance of the amendment\"-the point before us. As the District Judge pointed out, he was concerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption. (p. %9).\n\nI do not propose to decide the validity of the amendment on the touchstone of any particular theory of political science, sociology, economics. Our Constitution is capable of being worked by any party having faith in democratic institutions. The touchstone will be the intention of the Constitution makers, which we can discern from the constitution and the circumstances in which it was drafted and enacted.\n\nA number of decisions of State Courts were referred to by both the petitioners and the respondents. But the State Constitutions are drafted in such different terms and conditions that it is difficult to derive any assistance in the task before us. Amendments of the Constitution are in effect invariably made by the people.\n\nThese decisions on the power to amend a Constit1.ftion are not very helpful because \"almost without exception, amendment of a state constitution is effected, ultimately, by the vote of the people.\n\nProposed amendments ordinarily reach the people for approval or 'disapproval in one of two ways ; by submission from a convention of delegates chosen by the people for the express purpose of revising the entire instrument, or by submission from the legislature of propositions which the legislature has approved, for amendment of the constitution in specific respects.\n\nHowever, in some states constitutignal amendments may be proposed by proceedings under initiative and referendum, and the requirements governing the passage of statutes by initiative and referendum are followed in making changes in the state constitutions.\" (American furispr1ulence, Vol. 16, 2d., p. 201).\n\nIn footnote 9 it is stated :\n\n\"Ratification or non-ratification of a constitutional amendment is\n\na vital element in the procedure to amend the constitution.\"\n\n180 SUPREME COURT REPORTS [1973) Supp. S.C.R.\n\n(Towns v. Suttles-208 Ga 838, 69 SE 2d 742).\n\nThe question whether the people may, by the terms of the constitution, delegate their power to amend to others-for example, to a constitutional convention-is one on which there is a notable lack, of authority.\n\nAn interesting question arises whether this power could be delegated to the legislature, and if so, .whether the instrument 'which the legislature would then be empowered to amend would still be a constitution in the proper sense of the term.\"\n\nThis footnote brings out the futility of referring to decisions to interpret a constitution. wherein power to amend has been delegated to Parliament.\n\nThat there is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Coun in Ex Parte Mrs. D.\n\nC. Kerby('), one of the cases cited before us by the respondent.\n\nMcCourt, J. speaking for the Court distinguished the case of Eason\n\nv. State in these words :\n\n\"Petitioner cites only one authority that has any tendency to support the contention that a provision in the bill of rights of a con stitution cannot be amended-the case of Eason v. State, supra.\n\nUpon examination that case discloses that the Arkansas Constitution provided that the legi5lature might, by the observation of a prescribed procedure, amend the Constitution without submitting the proposed amendment to a vote of the people of the state, and the Bill of Rights in that Constitution contained a provision not found in the Oregon Constitution, as follows : \"Everything in this article is excepted out of the general powers of government.\"\n\nThe court held that the clause quoted exempted the provisions in the Bill of Rights from the authority delegated to the legislature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, so that the case is in fact an authority in support of the right of the people to adopt such an amendment.\n\nThe case is readily distinguished from the ins.tant case, for every proposed amendment to the Oregon Constitution, in .order to become effective, must be approved by a majority vote of the people, recorded at a state election, and consequently, when approved and adopted, such an amendment constitutes a direct CX pression of the will of the people in respect to the subject elri braced by the particular measure, whether the same be proposed by initiative petition or by legislative resolution.\"\n\n( 1) 36, A.L.R. 1451; 1455.\n\nKESAVANANDA ti. KERALA (Sikri, C.J.) 181\n\nNo report of the decision in Eason v. State is available to me but it appears from the annotation at page 1457 that it was conceded that a constitut; onal provis10n might bt repealed if done in the proper manner viz. by the people, who have the unqualified right to act in the matter. The Court is reported to have said :\n\n\"And this unqualified right they can constitutionally exercise by means of the legislative a-ction of the general assembly in providing by law for the call of a convention of the whole people to reconstruct or reform the government, either partially or entirely. And such convention, when assembled and invested with the entire sovereign power of the whole people (with the exception of such of these powers as have been delegated to the Federal government), may rightfully strike out or modify any principle declared in the Bili of Rights,' if not forhidden to do so by the Federal Constitution/'\n\nBoth sides referred to a number of distinguished and well-known authors. I do not find it advantageous to refer ro them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and conditions. Citations of comments on the Indian Constitution would make this judgment cumbersome.\n\nI have had the advantage of very elaborate and able arguments on both sides and. I must apply my own mind to the inteipretation.\n\nThe learned Attorney-General brought to our notice extracts from 71 Constitutions. I admire the research undertaken but I find it of no use to me in interpreting Art. 368. First the language and the setting of each Constitution is different.\n\nApart from the decisions of the Courts in United States there are no judicial decisions to guide us as to the meaning of the amending clauses in these constitutions.\n\nFurher, if it is not helpful to argue from one Act of Parliament to another (see Commissionei of Stamps, Straits Settlements v. Oei Tjong Swan('))·\n\nmuch less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v. Lambe(')).\n\nDuring the course of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and thers('), and the respondents place great reliance on it. I may\n\nmntton that this case was not cited before the Bench hearing Golak\n\n( 1) [1933] A.C. 378; 389.\n\n( 2) [1887] 12 A.C. 575-787.\n\n(1) [1935] lrUb Reports 170.\n\n182 SUPREME COURT llEPOP.TS [1973] Supp. s.c.a . • Nlllh's case. On careful consideration of this case, however. I find that this case is disninguishable and does not afford guidance to me in interpreting art. 368 of the Constillltion.\n\nIn order to appreciate the difference between the st!ructure of art. .. 50 of the Irish Constitution of 1922 and Art. 368 of the Indian Constitution, it is necessary ro set out art. 50 before its amendment. It reads:\n\n\"50. Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas. but no such amendment, passed by both Houses of the Oireachtas. after the expiration of a period of eight years from the date of the coming into opration of this Constitution. shall become law. unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation, and as such shall be subject to the provisions of art. 47 hereof.\"\n\nIt will be noticed that afr the expiry of the period of eight years mentioned in the article, the amending power was not with the Oireachtas as every amendment had to be first passed by the two Houses ~\n\nthe Oireachtas and then submitted to a referendum of the people, and the condition of the referendum was that a majority of the votes on the register shall have recorded their votes on such referendum, and either the votes of a majority of the votes on the register, or two-t!.irds of the votes recorded shall have been cast in favour of such amendment. So, in fact, after the expiry of the firs~ eight yars, the amendments had to be made by the people themselves. In our art. 368 people as such are not associated at all in the amending process.\n\nFurther, the Irish Constitution differed from the Indian Constitution in other respects. It did not have a Chapter with the heading of fundamental rights, or a provision like our art. 32 which is guaranteed.\n\nThe words \"fundamental rights\" were deliberatcly omitted from the Irish Constitution (see foot note 9 page 67, The Irish Constitution by Barra O' Briain, 1929). At the same time, there was no question of any guarantee to any religious or other minorities in Ireland.\n\nIt will be further noticed that for the first eight years on an; endment could be made by way of ordinary legislation, i.e., by ordmary legislative proc; edure. The sixth amendment had deleted from the end\n\nitE!A\\IANANDA v. KEllALA (Sikri, C.J.) 183\n\nof this article the words \"and as such shall be subject to the provisions of Article 47 which provided for a referendum hereof. In other words, for the first eight years it was purely a flexible constitution, a constitutional amendment requiring no special procedure.\n\nWith these differences in mind, I may now approach the actual decision of the Supreme Court.\n\nThe High Court and the Supreme Court were concerned with the validity of the Constitution (Amendmenn No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. The vali~ dity of that Act depended on the validity of the Constitution (Amendment No. 10) Act, '1928, No. 8 of 1928, and of the Constitution (Amendment No. 16) Act, 1929, No. 10 of 1929.\n\nThe Oonstitution (Amendment No. 17) Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Constitution, as originally enacted. It was not submitted to a referendum of the people. It was described in its long title as an \"Act tlO, amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and containing provisions for meeting a prevalence of disorder.\" But there is no doubt that it affected various human rights which were granted in the Irish Constitution.\n\nThe Constitution (Amendment No. 10) Act No. 8 of 1918 removed articles 47 and 48 of the Constitutioa and also the words \"aad as such shall be subject to the provisions of Article 4i thereof\" from the end of Article 50 as originally enacted. Constitution (Amendment No. 16.\\ Act No. 10 of 1929 purported to amend Article 50 of the Constitution by deleting the words \"eight years\" and inserting in place thereof the words \"sixteen vears\" in that Article.\n\nThe impugned amendment was held valid bv the High Court.\n\nSullivan P., J. interpreted the word \"amendment\" in Art. 50 widely relying on Edwards v. Attorne.v General of Canada('). Meredith ]. relied on the fact that the width of the power of amendment for the period during the first eight years was co-extensive wi.th the period after eight years and he could find no distinction between Articles of primary importance or secondary imporrance. O' Bvrne J. could not\n\nsee any distinction between the word \"amendment\" and the \\VIOrd>\n\n\"amend or repeal.\"\n\nIn the Supreme Court, the Chief Tustice first noticed \"that the Constitution was enacted bv the Third Dail. sitting as a Constituent Assembly, and not by the Oircachtas. which. in fact, it created .\" He\n\n( 1) [1930] AC. 124.\n\n184 SUPREME .COUllT REPORTS [1973} Supp. $.C.R.\n\nl\"Cad three limitations in the Constitution, The fust, he described aJ the over-all limitatioin: Thus:- ·\n\n\"The Constituent Assembly declared in the forefront OE 'th~·con stitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal). that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that \"all powers of government and all authority, legislative, executive and judicial. in Ireland arc derived from the people of Ireland. (p. 204) ••• \" \"\n\n, The limitation was deduced thus : \"It follows that every ; act, wh'- ther legislative, executive or judicial, in order to be lawful under the\n\nConstitution, must be capable of being justified under the authority thereby declared to be derived from God.\" ·\n\nNow this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority comes from God to the people, can have no application to our Constitution. ..\n\nThe second limitation he deduced from section 2 oi the Irish Frtt State Act and Article 50 of the Irish Constitution. It was that any amendment repugnant to the Scheduled Treaty shall be void and :inoperative.\n\nThe third limitation was put in these words :\n\n\"The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given tq the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change ?. In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Consiituent Assembly, which would be a violation of, or be inconsistent with, any fundamental .\n\nJ>rinciple so declared, is necessarily outside the scope of the power and invalid and void.\" (p. 209)\n\n' llsAVANANDA II. Kl!llALA (Sikri, C.J.) 185\n\nHe further said that these limitations would apply even after the expiry of eight years. He said :\n\n\"I have been dealing with limitations of the power of amendment in relation to the kinds -0f amendment which do not fall within the scope of the power and which arc excluded from it always, irrespective of the time when, i.e. within the preliminary period of eight years or after, or the process by which, the amendment is attempted.\" . (p. 209)\n\nHe then. approached the validity of the 161lh Amendment in these words:\n\n\"Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929 ? There are two princi;:ial grounds for impeaching its validity; the first, the taking away whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum ; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it.\" (p. 212)\n\nHe thought:\n\n\"The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article SO, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power.\" (p. 213)\n\nHe then observed :\n\n\"Now, the power of amendment is wholly contained in a single Article, but the donec of llhe power and the mode of its exercise arc so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other. a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter.\" (p. 213)\n\n.( .\n\nAfter referring to the condition (it shall be subject to the provisions of Article 47) he thought : '\n\n\"The Constituent Assembly, even during the preliminary period, would not relax the ultima~ authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oircachtas affecting the Constitution. The frame klf this provision makes it clear to my mind that, even if, by amendment of the Constitution under the\n\n186 ' SUPREME COURT REP\\)11.TS (1973) Supp. S.C.R.\n\npower, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, dcliberatdy, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years.\" (p. 213)\n\nAccording to him \"the permanent power of amendment, to ame at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise.\"\n\nHe held that it was not competent for the Oireachtas to remove from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power.\n\nHe observed :\n\n \"That provision of the Statute, No. 8 of 1928, was bad, in my opinion as being what is called in the general law of powers 'an excessive execution.' It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent because it defies logic and reason. It was, therefore, invalid in my opinion.'' (p. 216)\n\nRegarding the substitution of \"sixteen years\" for the words \"eight years\" he said : • \"If this amendment is gJOOd there is no reason why the Oireachtas should not have inserted or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words \"by the Oireachtas\" in the second line to the end of the Article.\" (p. 216)\n\nLater he observed : \"The attempt to take from the people this right, this exclusive power and authority and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of yeas, whether it be until 1938 or Tibb's Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usur pation, for it was done in. my opinion without legal authority.\" (p. 217)\n\nHe then repelled the argument that section 50 conferred the power to amend the Article itself. His rea90ills for this conclusion. arc summarised thus at page 219 :\n\n\"In my opinion, o!1 the true interprctai~~ of th~ ow.er before us, -upon a consideratton of express proh1b1t1an, hm1tat1ons apd requirements of the clause containing it, the absence of any express\n\nKl!SAVANANDA fl, Kl!RALA (Sikri, C.J.) 187\n\nauthority, the donation of the effective act in nhc exercise of the power to the people as a whole, the relevant surrounding circum stances to which I have already referred and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amend mcnt itself.\"\n\nI cannot agree with the learned Attorney-General that the sole basis of Kennedy C. J.'s decision was that Article 50 did not contain an express power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above.\n\nFitzGibbon J. held that the :word \"ame..-idmcnt\" was wide enough to include a power to amend or alter or repeal and there is no express prohibition in Article 50 itself that any article of the Constitution including Article 50 could not. be amended. The only limitation that he could find was that the provision's of the Scheduled Treaty could not be .all'lcndcd. He observed :\n\n\"I sec no ground for holding that either of these Articles could not have been amended by the Oircachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion oi the word \"no\" in . . Article 43 could be made \"by way of ordinary legislation\" within that period, or within sixtcC11, years, after eight had been altered to sixteen.'' (p. 228)\n\nIn other words, according tci him, if the Oircachtas subject to a r~\n\nfcrcnum of the people mentioned in Article 50 could .amend any Aniclc, so could Oircachtas .du, ring the period of eight years.\n\nBut he noticed that in other Constitudons, there arc articles, laws. or provisions which arc: specifically dcseribcd as \"Fundamc111al\" e.g., Sweden, or '.'nspWc tiol!al\" e.g., Austria, Czcchosloyakia:,:i:nd Frahcc, in rcspcctof \\Vhid1 'the Constit11tion express! y restricts the power of amendment, but in Consti tution . of the Sac:>rnat there is no such segregation,. and the power of amendment which applies to any Article appears to me to be equally applicable t?- all others, subject, of cou.r.sc, to the rchriction in respect of .the_ SchCdulccl, Treaty. He, later observed :,\n\n\"UnlCis, therefore, thcscrights appear' plainly from the express provisions of our Constituti!lll to be inalienable, and incapable of being modified or taken a\\vay byi any lcgislati.ve act, I cannot accede tO\n\nthe arglllnentthat the Oircachtai•cannot alter, modify, or ri:pesil\n\nthem. The framer of our Constitution may have intended \"to bind man down from mischief by the chains of the Constitiit'ion,\"\n\n188 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nbut if they did, they defeated their object by banding him the key of the padlock in Article 50.\" (P. 234)\n\nMurnaghan J. stressed the point that \"this direct consultation of tile people's will docs indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution arc utterly incapable of alteration at any time even if demanded by an absolute majority of the voters.''\n\n'Fhis observation really highlights the distinction between Article 50 of the Irish Constitution and Art. 368 of the Indlian Constitution.\n\nAs J have already observed, there is no direct consultation of the people's will in Article 368 of our Constitution.\n\nThe only limitation he could find in Article 50 was that the amend- . ment to the Constitution must be within the terms of the Scheduled Treaty.\n\nAs I h\\lvc observed earlier, I find Article 50 of the Irish Constitution quite different in structure from Article 368 of the Indian cOnstitution and I do not think it is permissible to argue from Article 50 of the Irish Constitution to Art. 368 of the Indian Constitution.\n\nBe that as it may, if I had to express my concurrence, I would express concurrence with the view of the learned Chief Justice in so far as he said that the Oireachtas could not increase its power of amendment by substituting sixteen years for the words \"eight years\".\n\nI had also invited a1tcntion of Counsel to Moore <l1ld Others v.\n\nAttorney-General for the Irish Free State and Others(') and the respondents rely heavily on it.\n\nIn this case the validity of the Constitution (Amendment No. 22) Act, 1933 (Act 6 of 1933) was involved. It was alleged that this amendment was no bar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was void.\n\nOn May 3, 1933, the Oircachtas passed an Act, No. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That Act, by\n\n1. 2, provided that s. 2 l>f the Constitution of the Irish Free State (Saorstat Eireann) Act!, !922, should be repealed, and, by s. 3, that Art. 50 of the Constitution should be amended by deleting the words \"within the terms of the Scheduled Treaty.''\n\n(') [1935] A.C. 484.\n\nKESAVANANDA V, KERALA (Sikri, C.J.) 189\n\nFinally, on November 15, 1933, the Oireachtas, enacted the Consti. tution (Amendment No. 22) Act, 1933, amending art. 66 of the Constitution so as to terminate the right of appeal to His Majesty in Council.\n\nThe Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from art. 50 the condition that there can be no amendment of the Constitution unless it is within the terms of the Scheduled Treaty. ·\n\nIt appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the Constitution (Amendment No. 16) Act, 1929 was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.\n\nIt is true that the Judicial Committee said that Mr. Greene rightly conceded this point but we do not know the reasons which impelled the Judicial Committee to say that the concession was rightly made. In view of the differences between art. 50 of the Irish Constitution and art. 368 of our Constitution, this concession cannot have .my importance in the present case. The actual decision in the case is of no assistance to us because that proceeds .on the basis that the Statute of Westminster had removed the restriction contained in the Constitution of the Irish Free State Act, 1922.\n\nMr. Greene challenged the validity of Act No. 6 of 1933 by urging :\n\n''The Constitution derived its existence not from any legislature of the Imperial Parliament but solely from the operations of an Irish body, the Constituent Assembly, whiCh is called in Ireland the Third Dail Eireann.\n\nThis body, it is said, though mentioned in the Irish Free State (Agreement) Act, 1922, was in fact elected pursuant to a resolution passed on May 20, 1922, by the Second Dail Eireann, an Irish Legislative Assembly. The Third Dail Eireann was thus, ii was alleged, set up in Ireland by election of the people of Ireland of their own authority as a Constituent Assembly to create a Constitution, and having accomplished its work went out of existence, leaving no successor and no body in authority capable of amending the Constituent Act. The result of that argument is that a Constitution was established which Mr. Greene has described as a semi-rigid Constitution-that is, \"one capable of being amended in detail in the different articles according to their terms, but not susceptible of any alteration w far as concerns the\n\nI ~36 S. C. India/73\n\n190 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nConstituent Act, unless perhaps by the calling together of a new Constituent Assembly by the people of Ireland. Thus th~ articles of the Constitution may only be amended in accordance with An.\n\nSO, which limits amendments to such as arc within the terms of the Scheduled Treaty. On that view Mr. Greene arguc9 that the law No. 6 of 1933 is ullra vires and hence that the amendment No. 22 of 1933 falls with it.\" (p. 496)\n\nMr. Greene referred their Lordships to State (Ryan and Others)\n\nv. Lennon and Others('). In that case Chief Justice Kennedy is reported to have expressed a view which corresponds in substance to that contended for by Mr. Greene.\n\nNow it is these contentions which I have just set out and which their Lordships could not accept. They observed :\n\n\"In thciir opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on being proclaimed by His Majesty, as was done on December 6, 1922.\n\nThe action of the House of Parliament was thereby ratified.\" (p. 497)\n\nThe position was summed up as follows :\n\n\"(1) The Treaty and the Constituent Act respectively form parts of the Statute Law of the U nitcd Kingdom, cah of them being parts of an Imperial Act. (2) Before the passing of the Statute oE Westminster it was not competent for the Irish Free State Par- IWnent to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a dominion legislature to pau a law repugnant to an Imperial Act (3) The affect of the Statute of Westminster was to remove the fetter which lay uj>on the Irish Free State Legislature by tt.1son of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Ii.ct. In this case they have done so.'' (p. \"98) ·\n\nI think that summary makes it quite cleat that it was because of the Statute .of Westminster that the Irish Free State Parliament was enabled to amend the Constitution Act.\n\n(') (1935) Irish .Repcrla 170.\n\nKESAVANANDA V, DUI.A (Si/l; ri, C.J.) 191\n\nP~TIV\n\n,,;.;; Validity of 241h Ammdmeal\n\nNow I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act, 1971 is Valid. It. reads thus:\n\n(2) In article 13 of the Constitution, after clause (3), the following clause shall be inserted, namely' :-\n\n\"( 4) Nothing in this article shall apply to any amendment of this Constitution made un4cr article 368.\" ·\n\n(3) Article 368 of the Constitution shall be i:c-nuinbcrcd as clause (2) thereof, and- ( a) for the margirial heading to that article, the following marginal hcadin~ shall cd, y :- •\n\n\"Power of Parliament to 111D.end the Constitution and prOCC.: dure therefor.\";\n\n(b) before clause (2) as .O, rc..numbercd, the following clause shall be inserted, namely :- •\n\n\"(1) Notwithstanding .g in this Constitution, Parliament may in exercise cifjp\" . ..<; Qllstitucnt power amend by way of dition, variation or pilal any provi.!ion, of this Constitution in accordance witl?tbF• procedure laid down. in this article.\"; 1 ~.. j.\"'\n\n(c) in clause (2) as '° lll!lbued, for the words uit shall be presented to the President f!>l', his aascnt and upon such amnt being given to the Bill,\"; tht, i.,.l)[lb \"it shall be pmcnted to the President who shall give his aPcnt to the Bill Jllld thereupon\" shall be substituted;\n\n. ( d) after clause (2) as ft: numbered, the forlowin.IJ shall be inJcrtcd, namely :- ·· •·,,. .. .. \"(3) Nothing in articlc'lfSbal apply to any amendmcrtt' made under this article.\" , • ·.. ~...,:{..'.! ...\n\n• -i ..\n\nAccording to the petitioner, t1ic~ .Amendment has sought IO achieve five results : .-<!'\n\n(i) It has inserted an exp~ ~Qn. in Article 368 to indicate\n\nthat the source of the ..... jng power will be found in tlm\n\nArticle itself.\n\n192 SUPBEME COURT REPORTS ( 1973) Supp. S.C.R.\n\n(ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article.\n\n(iii) It has substituted the words \"amend by way of addition,\" variation or repeal. ............. \" in place of the bare concept of l'amcndmcnt\" in the Article 368.\n\n(iv) It makes explicit that when Parliament makes a constitutional amendment under Article 368 it acts \"in exercise of its constituont power.\"\n\n(v) It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Art. 368.\"\n\nMr. Palkhivala did not dispute that the amendments covered by\n\n(i) and (ii) above were within the amending power of Parliament. I do not find it necessuy to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry <n, or Art. 248, because nothing turns on it now.\n\nMr. Palkhivala rightly conceded that Parliament could validly amend art. 368 to transfer the source of amending power from List I entry <n to art. 368.\n\nMr. Palkhivala however contended that \"if the amendments covered by (iii) and (iv) above arc construed as empowering Parliament to , exercise the full constituent power of. the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to \"essential features\"), the amendments must be held. to be illegal and oid.\" He further urges that \"if the arncndmtnt covered by ( v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void.\" He says that the 24th Amendment is void and illegal for the following reasons : A creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase thar very power.\n\nNo doubt, Parliament had the power to amend Article 368 itself, but that doct1\n\nnot mean that Parliament could so amend Article 368 as to change its own amencfing power beyond recognition. A creature of the Constitu. tion cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law\n\nKESVANANDA V. KERALA (Sikri, C.J,) 193\n\ncan enlarge its own power while purporting to act under that law.\n\nThe power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred.\n\nThe contrary view would reduce the whole principle of inherent and implied limitations to an absurdity.\"\n\nIt is contended on behalf. of the respondents that the 24th Amendment does enlarge the power of Parlient to amend the Constitution, if Golak Nath's case !united it, and as Art. 368 clearly contemplates amendment of Art. 368 itself, Parliament can confer additional powers of amendment on it.\n\nReliance was placed on Ryan's(') case and Moore's(') case.\n\nI have already dealt with these cases.\n\nIt seems to me that it is not legitimate to interpret Art. 368 in this manner.\n\nClause ( e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression \"Amendment of the Constitution\" does not change when one reads the proviso.\n\nIf the meaning is the same, Art. 368 can only be amended so as not to change its identity completely.\n\nParliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority.\n\nSimilarly it cannot get rid of the true meaning of the expresSion \"Amendment of the Constitution\" so as to derive power to abrogate fundamental rights.\n\nIf the words \"notwithstanding anything in the Constitution\" 'arc designed to widen the meaning of the word \"Amendment of the Constitution\" it would have to be held void as beyond the amending power.\n\nBut I do not read these to mean th.is.\n\nThey have effect to get rid of the argument that Art. 248 and Entry <fl List I contains the power of amendment. . Similarly, the insertion of the words \"in exercise of its constituent power\" only serves to exclude Art. 248 and Entry <fl List I and emphasize that it Is not ordinary legislative power that Parliament is exercising under Art. 368 but legislative power of amending the Constitution.\n\nIt was said that if Parliament cannot increase its power .of amendment clause ( d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution. w_ould be bad.\n\nI see no force in th.is contention.\n\nArticle 13(2) as existing prrvious to th~ 24th Amendment as interpreted by the majority in Golak, Nath' s case prevented legislatures from taking away or abridging the\n\n( 1) [1935] Irish Reports 170.\n\n(•) (1935) A.C. 484.\n\n194 SUPUM1 COVJ.T J:£pOllTI ( 1973] Supp. S.C.R.\n\nrights conferred by Art. 13.\n\nIn other words, any law which abridged . a fundamental right even to a small extent was liable to be struck down under Art. 368 Parliament can amend every article of the Constitution as long as the result is withiii the limits already laid down by me. The amendment of An..13(2) does not go beyond the limits\n\nlaid down because Parliament cannot even after the amendment abrogate or authorise abrogation or tM taking away of fundamental rights.\n\nAfter the amendment llOW a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.\n\nIn the result, in my <>pinion, the 24th Amendment as interpreted by me is valid.\n\nPART V.-V alitlity of SeC'liot1 2 oA tM Constitution (Twenty-fifth\n\nAnttndmenl) 'Act, 1971. .\n\nSection 2 of the Corutitution (Twenty-fifth Amendment) Act, 1971 enacted as follows :- .\n\n(a) for clause (2), the following clause shall be substituted, namely :-\n\n\"(2) No property' shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquilition or requisitioning of the property for an amount which may be fixed by such law or which may\n\nbe determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amounr is to be given otherwise than in cash :\n\nProvided that in making any law providing for the compulsory acquisition of. any property of. an educational institution established and administered by a minority, referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guarantetd under that clause.\"\n\n(b) after clause (2A), the following clause shall be inserted, namely :- ·\n\n. \"(2B) Nothing in sub.clause (f) of clause (l) of article 19 shall affect any such law as is referred to in clause (2).\"\n\nKESVANANDA V. KEP.ALA (Sikri, C.J.) l9S\n\nThere cannot be any-doubt that the object of the amendment is to modify the decision given by this COun in Rustom Cavas; ee Cooper v.\n\nUnion of India(') where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under an. 31 (2) in that it provided for Jtiving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.\n\nIf we compare art. 31 (2) as it stood before and after the 25th Amendment, .the following changes seem to have been effected. Whereas before the amendment, an. 31 (2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensal'.Jon or specifying the principles on which and the manner in which the compensation should be determined after the amendment art. 31 (2) requires such a law to provide for an \"amount\" which may be fixed by the law providing for acquisition or reqliisitioning or which may. be determined in accordance with such pri11ciples and given in such manner as may be specified in such law.\n\nIn other words, for the idea that compensation should be given, now the idea is that an \"amount\" should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.\n\nIt is very difficult to comprehend the exact meaning which can be ascribed to the word \"amount\". In this context, it is true that it is being used in lieu of compensation, but the word \"amount\" is nt a legal concept as \"compensation\" is. .\n\nAccording to Shorter Oxford English Dictionary, Third Edn. p. 57, the word \"amount\" has the following mearung :\n\nI \"Amount (amount sb. 1710, (f. the vb.) 1). The sum total to which anything amounts up; spec. the sum of th' principal and interest\n\n1796. 2. fig. The full value, effect, or significance 1732. 3. A quantity or sum viewed as a total 1833.\"\n\nAccording to Webster's Third New International Dictionary, p. 72, uamount\" means :\n\n\"mount la : the total number of quantity; AGGREGATE (the. amount of the line is doubled); SUM, NUMBER (add the same amount to each column) (the amount of the policy is 10,000 dollars) b : the sum of individuals (the unique amount of\n\n\n196 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nworthless IOU's collected during each day's business - R.L. Taylor) c : the quantity at hand or under consideration (only a small amount of trouble involved) (a surprising amount of patience) 2 : the whole or final effect, significance, or import! (the amount of his remarks is that we are hopelessly beaten) 3 : accounting : a principal sum and the interest on it syn see SUM.\"\n\nI have also seen the meaning of the word \"amount\" in the Oxford English Dictionary, Volume 1 p. 289, but it does not give me much guidance as to the meaning to be put in art. 31(2), as amended. The figurative meaning, i.e., the full value, I cannot give because of the deli!Y:rate omission of the word \"compensation\" and substitution of the word \"amount\" in lieu thereof.\n\nLet us then see if the other part of the article throw' any. light on the word \"amount\".\n\nThe article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadNuate amount.\n\nSo this show that the word \"amount\" here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles.\n\nThese principles must then have a reasonable relationship to the .property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles 'must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of art. 31(2).\n\nIf this meaning is given to . the word \"amount\" namely, that the\n\namount given in cash or otherwise is of such a nature that it has been worked out in accordance with the prini:.iples which have relationship to the property to be acquired, the question arises : what meaning is to be given to the expression \"the amount so fixed\". The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with •ome principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily.\n\nIt could not, for example, fix the amount by a lottery.\n\nLaw is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed.\n\nHow would the debate pr<><; eed ? Can the Minister say-\"This amount is fixed as it is the gover\\iment's wish.\" Obviously not. Therefore, it follows that the amount,\n\nKESVANANDA V, KERALA (Sikri, C.J.) 197\n\nif fixed by the legislature, h:is also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.\n\nIn this connection it must be borne in mind that art. 31 (2) is still a fundamental right. Then, what is the change that has been brought about by the amendment ? It is no doubt that a change was intended, it seems to me that the change effected is that a person whose property is aquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a bric~ of silver it could not be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal. If I were to interpret Art. 31 (2) as meaning that even an arbitrary or illusory or a grossly low amount could be given, which would shock not only the judicial\n\nconscienc~ but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceded its amending power under art. 368 of the Constitution. The substance of the fundamental right to property, under art. 31, consists of thre~ things: one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a publicpurpose; and, thirdly, the,, person whose property has been acquired shall be given an amount in',, lieu thereof, which, as I have already said, is not arbitrary, illusory or',, shocking to the judicial conscience or the conscience ri. mankind. I , have already held that Parliament has no power under art. 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them.\n\nApplying this to the fundamental right of property, Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration.\n\nSame cgnsiderations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated.\n\nTo give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. I 0 per year or Rs. 10 per month.\n\nReference may be made to two cases that show that if discretion is conferred it must be exercised reasonably.\n\n198 SUPREME COURT REPORTS (J973] Supp. S.C.R.\n\nIn Roberts v. Hopwood,(') it was held that the discretion conferred upon the Council by s. 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent :\n\n\"It appears to me, for the reasons I have given, that they cannot have brought into account the consideration which they say influenced them, and that they did not base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they tooki an arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the discretion imposed upon them by the statute.\"\n\nI may also refer to Lord Wrenbury's observation at p. 613 : \"I rest my opinion upon higher grounds.\n\nA person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought.\n\nIn other words, he must, by use of his reason, ascertain and follow the course which reason directs.\n\nHe must act reasonably.\"\n\nIn fames Leslie Williams v. Haines Thomas(') the facts are given in the headnote as follows :-\n\n\"Under s. 4 of the New South Wales Public Service Superannuation Act, 1903, the plaintiff was awarded by the Public Service Board a gratuity of 23 £ JO$, 1 d. per mensem, calculated for each year of service from December 9, 1875, the date of his permanent employment, upto December 23, 1895 ;. and upon his claiming to have his service reckoned up to August 16, 1902, was awarded a further gratuity of one penny in respect of each year subsequent to December 23, 1895, up to August 16, 1902, the date of the commencement of the public Service Act of that year.\"\n\nThe Judicial Committee held the award to be illusory. The Judicial Committee observed :\n\n\" ........ it seems to their Lordships to be quite plain that an illusory award such as this - an award intended to be unreal and unsubstantial - though made under guise of exercising discretion, is at best a colourable performance, and tantamount to a refusal bv the Board to exercise the discretion entrusted to them by Parliament.\" (p. 385)\n\n(') [1925] A.C. 578; 590.\n\n(') [ 1911 J A.C. 381.\n\nIWVANANDA I/, ltERALA (Sikri, C.J.) 199\n\nAlthough I am unable to appreciate the wisdom of inserting clause (2B) in art. 31, the effect of which is to make art. 19(1) (f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under art. 19(l)(f). While passing a law fixing p, inciples, the legislatures are bound to provide a procedure for the determination at the amount, and if the procedure is arbitrary that provision may well be struck down under art. 14.\n\nIn view of. the interpretation which I have placed on the new art. 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under art. 368 in enacting the new art. 31 (2).\n\nFor the reasons aforesaid I hold that s. 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, valid.\n\nPart VI-Validity of S. 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971.\n\nSection 3 of the twenty-fifth amendment, reads thus : \"3. After article 31B of the Constitution, the following arti.de shall be inserted, namely :- \"31. C. Notwithstailding anything contained in article 13, no law giving effect to the polic-y of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made bv the iegislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.\"\n\nIt will be noted that art. 31C opens with the expression \"notwithstanding anything contained in article 13\". This however cannot mean that not only fundamental rights like art. 19(1) (f) or art. 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded.\n\nThe article ourpo!'tS to save laws which a State may make towards securing the principles specified in els. (b) or ( c) of art. 39 from being chal!lenged on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by arts. 14, 19 or 31. This is the only ground on which they cannot be challenged.\n\nIt will be noticed that the article provides tha~ if the law cont.ains a declaration that tt is for giving effect to such policy, it shall not be called in question in any court on the ground tha: it does not give effect to such policy. In other words, once a declaration\n\n2()() SUPREME COURT REPORTS [ 1973] Supp. S.c.P..\n\njs given, no court can question the law on the ground that it has nothing to do with givmg effect to the policy; whether it gives effect to some other policy is irrelevant.\n\nFurther, a law may contain some provisioru dealing with the principles specified in els. (b) or (c) of Art. 39 while other sections may have nothing to do w'ith it, yet on the language it denies any court power or jurisdiction to go into this question.\n\nIn the face of the declaration, thi• Court. would be unable to test the validity of incidental provisioru whlch do not corutirutc an essential and integral part of the policy directed to give effect to art. 39(b) .and art. 39(c).\n\nIn Akadasi Padhan v. State of Orissa(') Gaiendragadkar, C. J., speaking for the Court, observed :\n\n\"A law relating to\" a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not.\n\nIn our opinion, the said expression should bt construed to mean. the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly.\n\nIt is only those essential and basic provisions which are protected by the latter part of Art. 19( 6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Art. 19(6).\n\nThese observations were quoted with approval by Shah, J., speaking on behalf of a larger Bench in R. C. Cooper v. Union of India(').\n\nAfter quoting the observations, Shah, J., observed :\n\n\"This was reiterated in Rashbihar' Panda and Others v. The State of Orissa,(') M/s. Vrailal Mam?al & Co., and Another v. The State of Madhya PradeJh & Others(') and Municipal Committee, Amritsar and Others v. State of Punjab\"(').\n\nWhile dealing with the validity of the Bombay Prohibition Act (XXV of 1949), , this Court in State of Bombay v. F. N. Balsara (•) struck down two provisions on the ground that they conflicted with\n\n( 1) [1963] Supp. 2 S.C.R. 691-707.\n\n\n( 3)\n\n[ 1969] 3 S.C.R. 374.\n\n\n{') [1951] S.C.R. 682.\n\nKESAVANANDA fl, KERALA (Sikri, C.J.) 201\n\nthe fundamental rights of freedom of speech and expression guaranteed by art. 19(l)(a) of the Constitution. These provisions were sections 23(a) and 24(1) (a), which read\n\n\"23. No person shall-\n\n(a) commend, solicit the use of, offer any intoxicant or hemp,. or ........\n\n24(1). No pcrsonshall print or publish in any newspaper news.-\n\nsheet, book, leaflet, booklet or any other single or pcriod'ical publication or otherwise display or distribute any advertisement or other matter- '\n\n(a) which commends, solicits the use of, or offers any intoxicant or hemp ............ \"\n\n.Section 23(b) was also held to be void. It was held that \"the words. \"incite\" and \"encourage\" are wide enough to include incitement and encouragement by words and speeches and also by acts and .the words used in th~ section arc so wide and vague that the clause must be held to be void in its entirety.\" ·\n\nSection 23(b) reads as follows :\n\n\"23. No person shall-,\n\n(a) ........\n\n(b) 'incite or encourage any member of the publi~ or any cbss\n\nof individuals of the public generally to commit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or ........\n\nMr. Palkhivala contends, and I think rightly, that this Court woul~ not be able to strike these provisions dawn if a similar declaration wcrr inserted now in the Bombay Prohibition Act that this law is for giving' effect to Ary 47, which prescribes the duty of the State to bring about prohibition of the consumpllion of intoxicating drinks. If a similar provision were inserted in the impugned Kerala Acts making it acriminal offence to criticise, frustrate or defeat the policy of the Acts,. the provisions would be protected under Art. 31 ( C).\n\nThe only so-called protection which is given is that if the legislature of a State passes such a law it must receive the President's assent.\n\nIt is urged before us that it is no protection at all because the President would give his assent on the advice of the Union Cabinet.\n\nArticle 31C in its nature differs from art. 31A, which was inserted by the Fourth Amendment.\n\n202 SUPREME COUllT REPORTS [1973] Supp. S.CJI.\n\n\"31A. (1) Notwithstanding anything contained in article 13, no law providing for-\n\n(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or\n\n(b) the taking over of the management of any property by the\n\nState for a limited period either in the publiic interest or in order to secure the proper management of the property, or ( c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or\n\n(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or ( e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license,\n\nhall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by\n\narticl~ 14, article 19 or article 31 : Provided that .............. \"\n\nIn Ar~. 31A the subject-matter of the kg'islation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, (art. 31A(a) ). Similarly, the subject-matter of legislation is specifically provided in els. (b), (c) and (d) of art. 31A., But in arll. 31C the\n\nky is the limit because it leaves to each State to adopt measures towards\n\nsecuring the priniples specified in els, (b) and ( c) of art. 39. The wording of arts. 39(b) and 39(c) is very wide.\n\nThe expression \"economic system\" in art. 39( c) may well include professional and other services. According to Encylopedia Americana (1970 Ed. Vol. 9p, p.· '600) \"economic systems arc forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the contention of the .State that each provision in the law has been taken for the purpose of giving effect to the policy of the State.\n\nIt was suggested that if the latter part of art. 31C, dealing with declaration, is regarded as unconstitutional, the Court will be entitled to go into the question whether there is any nexus between the impugned law and art. 39(b) and art. 39(c). I find it difficult to appreciate this submission. There may be no statement of State policy in\n\nKESAVANANDA fl, Kl!MLA (Sik.ri, C.J.) 203\n\na law. Even if there is a statement of policy in the Preamblie, it would not control the substantive provisions, if unambiguous. But assuming that there is a clear statement it would be for the State legislature to decide whether a provision would help to secure the objects.\n\nThe Courts will be unable to separate necessarily incidental provisions and merely incidental.\n\nFurther, as I have pointed out above, this question is not justiciable if the law contains a declaration that it is for giving effect to such a policy.\n\nAccording to Mr. Palkhivala, Art. 31C has four features of totalitarianism: (1) There is no equality.\n\nThe ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Art. 19(1)(b), and (4) The property will be at the mercy of the State, In other words, confiscation of property of an individual would be permissible.\n\nIt seems to me that in effect, art. 31C enables States to adopt any policy they like and abrogate arts. 14, 19 and 31 of the Constitution at will. In other words, 'it enables the State to amend the Constitution.\n\nArticle 14, for instance, would be limited by the State 'according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be arts. 19 and 31, while these fundamental rights remain in the Constitution.\n\nIt was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive auvhority from Art. 31C.\n\nIt is true that the State law would derive authority from Art. 31C but the difference between delegated legis!ation and the State law made under Art. 31C is this : It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But a State legislature cannot be authorised 1o amend the Constitution and the State law deriving authority from Art. 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31.\n\nIt will be recalled that art. 19 deals not only with the right to property but it guarantees varioos rights : freedom of speech and ex\n\npression; right to assemble peaceably and without arms; right to fomi associations or unions; right to move freely throughout the territory of India; rightr to practice any profesion or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legiskiture to abrogate the above freedoms.\n\nIn effect, Parliament is enabling State legislatures to declare that \"a\n\ncitizen shall not be free; he will have no freedom of speech to criticise\n\n204 SUPREME OOUllT REPORTS [1973) Supp. S.C.ll.,\n\nthe policy of the' State; he shall not assemble to protest against the policy; he shall be confined to a town or a district and shall not move outside his State; a residen~ .of another state shall not enter the State whi~ is legislating; he shall not, if a lawyer, defend people who have\n\nviolated the law. It could indeed enable legislatures t'? apply one law co political opponents of the ruling party and leave members of. the party outside the purview of the law. In 'short, it enables a State Legis... lature to set up complete totalitarianism in the State. It seems'_ that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.\n\nI have no doubt that. the State legislatures and Parliament in itJ ordinary legislative capacity will not exercise this new power confC!Ted on them fully but I am concerned with the amplitude of the . power conferred by art. 31C and not with what the legislatures may or may not do under the powers so conferred. ·\n\nI have already held that Parliament cannot.under .art. 368 abrogate fundamental rights. Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.\n\nIt has been urged before us that s. 3 of the 25th amendment Act\n\ni.~ void as it in effect delegates the constituent amending power to State legislatures. The question arises 'whether art. 368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it docs not. It would be noted that art. 368 of this Constitution itsc1£ provides that aniendment may be initiate<l only by the introduction of a bill for the. purpose in either House of Parliament. In other words, art. 368 docs not contemplate any other mode of amendment by Parliament and it docs not equally on 1 template that Parliament could set up another body to amend the\n\nConstitution. ·\n\nIt is well-settled in India that Parliament cannot delegate .its essential legislative functions.\n\nSee: (1) Per Mukherjea J. in re The Delhi l.Aws Act, 1912. (1951) SCR 747 at 984-5. · '\n\n(2) Ra; Narain Singh v. Patna Administration 1955 (I) SCR\n\n290. \"\n\n(3) Hari Shankar Bag/a v. State of Madhya Pradesh - 1955 (lj\n\nSCR 380. · .\n\n~SAVANANDA V. KEMLA (Sikri, C.J.) 205\n\n(4) Vasa11tlal Sanjanwala v. State of Bombay -\n\n1961 (1) SCR 341.\n\n(5) The Municipal Corporation of Delhi v. Bir/a Cotton Mills -\n\n1968 (3) SCR 251.\n\n(6) Gar1wal v. State of Punjab - 1959 Supp. (1) SCR 792. ·\n\nIt is also well-settled in countries, where the courts have taken a position different than in Indian courts, that a legislature cannot create another legislative body. Reference may be maac here to In re lnilkztive and Referendum Act(') and Attorney-General of No11Q\n\nScoitia v. Attorney-General of Canada('). I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly. relied on by Mr. Palkhivala to csta blish that an amending power cannot be delegated.\n\nIn this case the Judicial Committee of the Privy Council was concerned with the interpretation of s. 92, head 1. of the British North America Act, 1867, which empowers a Provincial Legislature to amend the Constitution of the Province, \"excepting as regards the office of the Lieutenant Governor\". The Legislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in effect would compel the Licute nant Governor to submit a proposed law to a bodv of voters totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by these voters.\n\n1'he judgment of the Court of Appeal is reported in 27 Man. L.R. 1, which report is not available to me, but the summary of the reasons . of the learned Judges of the Court of Appeal arc given at page 936 of\n\n(1919) A.C. as follows :\n\n\"The British North America Act, 1867, declared that for each Province there should be a Legislature, in which s. 92 vested the power of law-making; the legislature could not confer that power upon a body other than itsclf1 The procedure proposed by the Act in question would not be an Act of a Legislature within s, 92, would be wholly opposed to the spirit and principles of the\n\nCanadian constitution, and would override the Legislature thereby provided .. Further, the power to amend the Constitution given by s. 92, head 1, expressly expected \"the office of the :t.ieuteruirit-Governor\". Sect. 7 of the proposed Act, while preserving the power ' of veto and disallowance by the Governor-General provided for by ss. 55 and 90 of the Act of 1867, dispensed with the assent of the Lieutenant-Governor provided for by ss. 56 and 90 of that\n\n(') (1919) A.C. 935.\n\n( 1) (1951) S.C.R.-canada-31.\n\n14-36 s. c. India/73\n\n206 SUPREME COURT REPORTS (1973) Supp. s.c.R.\n\nAct; even if s. 7 was not intended to dispense with that assent, s. 11 clearly did so. The proposed Act also violated the provisions of s. 54(inconjunction with s. 90) as to money bills.\"\n\nTheir Lordships of the Judicial Committee held at page 944 :~\n\n\"Their Lordships are of opinion that the language of the Act cannot be construed otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which arc important in the legal theory of that position. For if the Act is valid it compels him to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and renders him powerless to prevent it from becoming an actual law if approved by a majority of these voters. It was argued that the words already referred to, which appear in s. 7, preserve his powers of veto and disallowance. Their Lordships are unable to assent to this contention. The only powers pre- served are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallowance referred to can only be those of the Governor-General under s. 90 of the Act .of 1867, and not the powers of the Lieutenant- Governor, which are at an end when a Bill has become an Act.\n\nSect. 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly e_Juded from the new legislative authority.\"\n\nI have set out this passage in extenso because this deals with one pan of the reasoning given by the Court of Appeal. Regarding the <ithcr part i.e. whether the Legislature could confer that power on a body other than itslf, the Judicial Committee observed at page 945:\n\n\"Having said so much, their Lordships, following their usual practice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Sect. 92 of .the Act of 1867 entrusts the legislative power in a Province to its legislature, and to that Legislature only. No doubt a body, with power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial LcgiSlature in Canada, could, while\n\nKEUV.\\NANDA u. KEMLA (Sikri, C.J.) 207\n\npreserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to . which it owes its swn existence. Their Lordships do no more than draw attention to the gravity of the constitutional questioos which thus arise. (Emphasis supplied)\n\nIt is interesting .to note that this position was indicated by Sir A.\n\nHobhouse, a member of the Judicial Committee, while Hodge v. The Queen(') was being argued. This appears from Lefray on Canadian Federal System at p. 387 :\n\n\"Upon the argument before the Privy Council in Hodge v. The Queen, Mr. Horace Davey contended that under this sub-section,\n\n(Sec. 92(1) of Canadian Constitution) provincial legislatures \"could do what Lord Selborne, no doubt correctly, said in The Queen v. Burah,(') the Indian legislature could not do,-abdicate their whole legislative functions in favour of another body.\" But, as Sir 4\".<Hobhouse remarked, this they cannot do. \"They remain init(S.~ with a responsibility. Everything is done by them, and such officers as they create and give discretion to.\"\n\nThe learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in s. 92, head 1, the power which the Crown possesses through a person directly representing the Crown cannot be abrogated. It is true that this -s the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power conferred on the Provincial Legislature by s. 92, head 1.\n\nThe Attorney General said that the scope of this decision w:u referred to in Nadan v. The King,(') where at page 495 reference is made to this case in the following words :\n\n\"In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to \"the impropriety in the absence of clear and unmistakable language of construing s. 92 as permitting the abrogation of any power which the Crown possesses through a person directly representing it\"; an\n\n( 1) 9 A.C. 117.\n\n( 2) [1878] 3 A.C. 905.\n\n( 8) (1926) A.C. 482.\n\n2Q8 suPUl\\Ot. COtlllT IU!POllTS. [ 1973] Supp. s.c.11.\n\nobservation which 'applies with equal force to s. 91 of the Act al 1867 and to the abrogation of a power which remains vested in the Crown itself.\"\n\nBut this passage again dealt with the actual point decided and . not the obiter dicta. ·\n\nThe first para of the head note in Nadan's( 1) case gives in brief the actual decision of the Privy Council as follows :\n\n\"Sect. 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giv'ing effective leave to appeal aga~ an order of a Canadian Court in a crimj. nal case, is invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under s. 91 of the Bri tish North America Act, 1867, is confined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsistent with the Judicial Committee Acts 1833 and 1844, and therefore would be invalid under s. 2 of the Colonial Laws Validity Act, 1865.\n\nThe royal assent to the Criminal Code could not give validity to an enactment which was void by imperial statute; exclusion of the prerogative could be accomplished only by an Imperial statute.\"\n\nFor the aforesaid reasons I am unable to agree with the Attorney General and I hold that the Initiative and Referendum Act case shows .that limitations can be implied in an amending power. Mr. Scervai\n\nkCks to distinguish this case on another ground. According to him, these observations were obiter dicta, but even if they are treated as considered obiter dicta, they add nothing to the principles governing ddcgated legislation, for this passage merely repcai.S what had been laid down as far back as 1878 in The Queen v. Burah(1 ), where the Privy Council in a classical passage, observed :\n\n\"But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistl!kcn view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature. as those of\n\n(l) (1926) A.C. 482.\n\n(\") 5 I.A. 178=(1878) 3 A.C. 889; 904: 905.\n\nXESAVANANDA fl. KEW.A.· (Sikri, C.J.)\n\nParliament itself. The established Courts of Justice, when a_ question arises whether the prescribed limits have been cxccecJed.· must of necessity determine that question; and the only way in which they can properly do so, is,. by looking to the terms of. the\n\ninstrument by which, affirmatively, the legislative powers were created, and by ; which, negatively, they are restricted. If what. 1w been done is legislation, within the general scope of the aflli'mative words which give the power, and if it violates no cxpreu condition or restriction bycwhich that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further or to enlarge constructively those conditiolll_ and restrictions.\"\n\nMr~ Seervai further says that having laid down the law as . set alit above, the Privy Oluncil added : ·\n\n\"Their Lordships agree that the Governor-General in Coundr could not, by any form of enactment; create in India, and arm with general legislative authority, .a new legislative power, nOl created or authorised by the Council's Act.\"\n\nWe are unable to agree with him that the obiter dict.i of the Judi-· cial Olmmittee deals with the same subject as Burah's(') c; ase.·\n\nBurah's case was not concerned with the power to amend the. Constitution but was concerned only with legislatiOn enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had no power to amend\n\nthe Government of India Act, under which it functioned.\n\nReference was also made to the observations of one of us in Delhi Municipality v. B. C. & W. Mills(2) where I had observed as folfows :-\n\n\"Apart from authority, in my view Parliament has full power . to delegate legislative authority to subordinate bodi~. This power Bows, in my judgment, from Art. 246 of the Constitution. The word \"exclusive\" mean.~_ exclusive _of any other legislation and not exclusive of any subordinate body. There is, however, one restric- -tion in this respect and that is also contained in Article 246 .. Parli-\n\n.ament must pass a law in respect of an item or items of the relevant list. Negatively this means that Parliament cannot abdicate its Junctions.\"\n\n( 1) S I.A. 178-(1878) 3 A.C. 889.\n\n( 1) A.I.I!.. (1968) S.C. 1232 at p. 1266.\n\n210 SUPREME COURT REPOrl'S (1973) Supp. S.C.R.\n\nReference was also invited to another passage where I had observed:\n\n\"The case of 1919 AC 935 provides an instance of abdication of functions by a legislature. No inference can be drawn from this case that delegations of the type with which we are concerned amount to abdication of functions.\"\n\nIt is clear these observations are contrary to many decisions of. this Court and, as I said, I made these observations apart from authority.\n\nBut neither this Court nor the Judicial Committee in Queen v.\n\nBurah(') were concerned with an amending power, and the importance of the obiter observations of the Privy Council lies in the fact that even in exercise of its amending power the legislature could not \"create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence,\" and the fact that in Canada the doctrine of limited delegated legislation does not prevail as it does in India.\n\nIt has been urged before us that in fact there has been no delegation of the amending powers to the State legislatures by art. 31C. and what has been done i\" that art. 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under art. 31C, and the law abrogates or takes away these constitutional rights, these fundamental riglits cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Art. 31C does not enable the States to amend the Constitution then art. 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by art. 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in art. 368, and would be void on that ground.\n\nThe learned Solicitor General, relying on Mohamed Samsudem Kariapper v. S. S. Wijesinha( 2) urged that there can be implied ameridment of the constitution and art. 31C may be read as an implied amendment of art. 368. What the Judicial Committee decided in this\n\n( 1) 5 I.A. 178=(1878) 3 A.C. 889.\n\n(2) (1968) A.C. 717; 743.\n\nKESAVAN~A ti. KE&ALA (Sikri, C.J.) 211\n\ncase was that a bill having received a certificate in the hands of the Speaker that the number af votes cast. in favour thereof in the HDUSC of Representatives amounted to no kss than two-thirds of the wlimt number of Members of the House in effect amounted to a bill for the amendment or repeal of any of the provisions of the order, and the words \"amendment or repeal\" included implied amendment.\n\nMenzies; J., spca, king for th~ Judicial Committee, observed :\n\n\"Apart from the proviso to sub-section (4) therefore the board has found no reason for not construing the words \"amend or repeal\" in the earlier part of section 29( 4) as extending to amendment or repeal by inconsistent law . . . . . . . . . . . . . A bill which, if it becomes an Act, docs amend or repeal some provision of the order is a bill \"for the amendment or repeal of a provision of the order.\" (p. 743)\n\nLater, he _observed :\n\n\"The bill which became the Act was a bill for an amendment of section 24 of the Constitution simply because its terms were inconsistent with that section. It is the operation that the bit! will have upon becoming law which gives it its constitutional chuac• ter, not any particular label which may be given to it. A bill des,\n\ncribed as one for the amendment of the Constitution, which con- . tained no operative provision to amend the Constitution would not require the prescribed formalities to beci>me a valid law whereas a bill which upon its passing into law would, if valid, alter the Constitution would not be valid without compliance with those formalities.\"\n\nWe are not here concerned with the question which was raised before the Judicial Committee because no one has denied that art. 31C is an amendment of the Constitution. The only question we are concerned with is whether art. 31C can be read to be an implied amendment of art. 368, and if so read, is it valid, i.e., within the powers of Parliament to amend art. 368 itself.\n\nIt seems to me that art. 31C cannot be read to be an implied amendment of art. 368 because it opens with the words \"notwi.thstanding anything contained in art. 13\" and Art. 31C does not say that \"notwithstanding anything contained in art. 368.'' What art. 31C does is that it empowers legislatures, subject to the condition laid down in art. 31 C itself, to take away or abridge rights conferred by arts. 1'1, 19 and 31. At any rate, if it is deemed to be an amendment of art. 368, it is beyond the powers conferred by art. 368 itself. Article 368 d~ l'lOt enable Parliament toconstitute another legislature to amend die\n\nConstitution, in its exercise of the power to amend art. 368 itself.\n\n212 SUPREME COURT REpOll.TS (1973) Supp. S.C.J..\n\nFor the aforesaid reasons I hold that s. 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amenq the Constitution.'\n\nPAll.T-VII.- Twenty-Ninth Amendment\n\nThe Constitution (Twenty-Ninth Amendment) reads:\n\n\"2. Amendment of Ninth Schedule\n\n. \"In the Ninth Schedule to the Constitution after entry. 64 and be\n\nfore the Explanation, the following entries shall be inserted, namely: -\n\n\"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kcrala Act 35 of 1969).\n\n66. The Kerala Land Reforms (Amendment) Act. 1971 (Kerala Act 25 of 1971).\"\n\nThe effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of art. 31-B get attracted. Article 31-B which was inserted by s. 5 of the Constitution (First Amendment) Act, 1951, reads :\n\n \"Insertion of new article 31B.\n\n5. After article 31A of the Constitution as inserted by s-.-cticn 4.\n\nthe following article shall be inserted. namelv :-\n\n\"31B. Validation of certain Acts and Reg11lations ·\n\nWithout prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisioqs thereof shall be dee111~Q to be void, or ever to have become vole!, on the ground that such Act, Regulation or . provision is inconsistent with, or takes way or abridges any of the rights conferred .. hy, any provisions of thiJ Part, and notwithstanding any judgment, decree or order of, any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any com JXh!llt Legislatwe to repeal or amend it, continue in f91:cc.\"\n\nThe First Amendment h•d also ir.sertt-d art. 31..;\\ and the N\\otli $cheduk including 13 State enactmcnli . dealing \"'.ith agrarla!t.. J'h. forms. .\n\nKESAVANANDA V. KERALA (Sikri, C.J.) 213\n\nBefore dealing with the points debated before us. it is necessary to mention that a new art. 31-A was substituted bv the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original art. 31A(l) as dause (a) and added clauses. (b) to ( e) and also changed the nature of the protective umbrella. The relevant part of art. 31A(l) as substituted has already been set out .\n\n. Under art. 31-A as inserted bv the First Amendment a law was protected even if it was it)consistent with or took away or abridged any rights conferred by any provisions of Part III. Under the Fourth Amendment the protective umbrella extended to only art.· 14, art. 19 or art. 31. The Seventeenth Amendment further amended the definition of the word \"estate\" in art. 31A. It also added seven Acts to the Ninth Schedule.\n\nThe argument of Mr. Palkhivala. on this part of the case, was two.fold. First, he contended, that art. 31B, as originally inserted, had intimate relations with agrarian reforms, because at that stage art. 31-A dealt only with agrarian reforms. The words \"without prejudice to the generality of the provisions contained in art. 31A'', according to him, pointed to this connection. He, in effect, said that art. 31-B having this original meaning did not change the meaning or its scope when a new art. 31cA containing clauses (b) to (e) were included.\n\nI am unable. to ccede to these contentions. The ambit of art. 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraia Sir Kameshwar Singh('), Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed:\n\n\"There is nothing in article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of article 31-A. The opening words of article 31-B are only intended to make clear that article 31-A should not be restricted in its application by reason of anything contained in article 31-B and are in no wav calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition o~ \"estates,\"\n\nHe held that the deci.-ion in Sibnath Banerji' s(2) case afforded no useful analogy.\n\n(1) (1952) S.C.R. 889; 914-15.\n\n(') (1945) P.C.R. 195.\n\n214 SUPBEMI COUR1' BEPORTS [ 1973] Supp. s.c.R.\n\nIn Visweshwar Rao v. State of Madhya Pradesh(') Mahajan, J., repelled the argument in these words :\n\n\"In my opinion the observations in Sibnath Banerji' s case far from supporting the contention raised negatives it. Article 31-B specifically validates certain acts mentioned in the Schedule despite the provisions of art. 31-A and is not illustrative of art. 31-A. but stands independent of it.\"\n\nIn H. B. /eejeebhoy v. Assistant Collector, Thana('), to which decision I was a party, Subha Rao, C. J., observed that \"art 31-B is not governed by art. 31-A and that art. 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.\"\n\nI may mention that the validity of the device was not questioned before the Court then.\n\nBut even though I do not accept the contention that art. 31-B can be . limited by what is contained in art. 31-A, the question arises wh~ ther the Twenty-Ninth Amendment is valid.\n\nI have held that art. 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so. it does not enable Parlia• ment to do this by any means, in.eluding the device oE art. 31-B and the Ninth Schedule. This device of art. 31-B and the Ninth Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it. is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they takeaway fundamental rights.\n\nIn this connection I may deal with the argument that the device of art. 31B and the Ninth Schedule has uptill now been upheld by this Court and it is now too late to impeach it. But the point now raised before us has never been raised and debated before. As Lord Atkin observed in Proprietary Articles Trade- Association. v. Attamey.-GeneraJ for Canada('). ·\n\n\"Their Lordships enl:crtain no efE>uf!lt that time akmc will not vali date an Act which when ci'tallcnged is f61md to be ulll'a vires; nor will a history of a gradual series of advances till this boundary is finally crossed. avail Ill) protect the ultiJnat.e ¢11m<1ch.il!em.\"\n\n(') (1952) S.C.R. 1020-1037.\n\n(') (1%5) 1 S.C.R. 636-648.\n\n( 8 ) {1931) A.C. 310; 317.\n\n' t'\n\nXESAVANANDA fl. Kl!:RALA (Sikri, C.J.) 215\n\nIf any further authority is needed, I may refer to Attorney-General for Australia v. The Queen and the Boilermakers' Society of Australia('). The Judicial Committee, while considering the question whether certain sections of the Conciliation and Arbitration Act, 1904- 1952 were ultra tlires inanmuch as the Commonwealth Court of Conciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for a quarter of century no litigant had attacked the validity of this obviously illegitimate union, and observed :\n\n\"Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression in the appropriate judgment.\" . .\n\nWe .had decided not to deal with the merits of individual cases and' accordingly Counsel had not addressed any arguments on the impugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, they will have to be struck down.\n\nIf they only abridge fundamental rights, it would be for the Constitu-.\n\ntion Bench to determine whether they are reasonable abridgements essential in the public interest.\n\nBroadly speaking, constitutional amendments hitherto made in, art. 19 and art. 15 and the agrarian laws enacted by various State• furnish illustrations of reasonable abridgement of fundamental rights in the public interest.\n\nIt was said during the arguments that one objecr of art. 31-B was to prevent time-consuming litigation, which held up implementation of urgent reforms. If a petition is filed in the High Court or a suit is. filed in a subordinate court or a point raised before a magistrate challenging the validity of an enactment. it takes years before the vlidity of an enactment is finally determined. Surely, this is not a good reason to eprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to the Suoreme Court for dct; rmmation of substantial questions of interpretation of the Constitution.\n\n( 1) (1957) A.C. 288; 323.\n\n216 SUPREME COURT REroRTs [ 1973] Supp; soc.1t.\n\nPART VIII: Conclusions\n\nTo summarise, I hold that :\n\n(a) Golak Nath's(') case declared that a constitutional amendment would be bad if it infringed art: 13(2)1 as thil111pplled. not only to ordinary legislation but also to an amendment of the Constitution. ·\n\n(b) Golak Nath' s(') case did not decide whether art, . 13(2) can be amended under art. 368 or determine the exact. meaning of the expression \"amendment of this Constitution\" in art. 368.\n\n(c) The expression \"amendment of this <Anstitution~ 'docs not enable Parliament to abrogate or take away. fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.\n\n{d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been validly enacted.\n\n{ e) Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity. ·\n\n(f) Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is. valid.\n\n(g) Section 3 of the <Anstitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates power to legislatures to amend the Constitution. ·\n\n(h) The Constitution (Twenty-Ninth Amendment) Ai:t, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge theni; and in the latter case whether they effect reasonable abridgements in the public interest. ·\n\nThe Constitution Bench will determine the validity of the Consti- 'tlltion (Twenty-sixth Amendment) Act, 1971 in. accordance wi!; h this judgment, and the law.\n\n(') (1967) 2 S.C.R. 762.\n\nKESAVANANDA I'. KERALA (She/at & Grover, JJ.) 217\n\nThe cases are remitted to the Constitution Bench to be decided in> accordance with this judgment, and the law. The parties will bear their own costs.\n\nSHEi.AT & GRoviR, JJ. :-All the six writ petitions involve com• mon questions as to the validity of the 24th, 25th and 29th amend ments to the Constitution. It is not necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice.\n\nIt was considered, when the larger bench was constituted, that the decision of the questions before us would hinge largely on the correctness or otherwise of the decision of this court In I. C. Golak Nath & Others v. State of Punjab & Anr.('), according to which it was\n\nheld, by majority, that Art. 13(2) of the Constitution was applicable to constitutional amendments made under Art. 368 and that for that reason the fundamental rights in Part III could not be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was not correct, the result on the questions now raised before ns, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined now is the scope, ambit and , extent of the amending power conferred by Art. 368. On that will depend largely the decision of the other matters arising out of the 25th and the 29th amendments.\n\nThe respective positions adopted by learned counsel for the parties diverge widely and are irreconcilable. On the side of the petitioners, it is maintained inter alia that the power of the amending body (Parliament) under Art. 368 is of a limited nature. The Constitution gave the Indian citizens the basic freedoms and a polity or a form of government which were meant to be lasting and permanent.\n\nTherefore, the amending power does not extend to alteration or destruction of all or any of the essential features, basic elements and fundamental principles of the Constitution which power, it is said, vests in the Indian people alone who gave the Corutitution to themselves, as is stated in its Preamble.\n\nThe respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full constituent power which a legal sovereign can exercise provided the conditions laid down in Art. 368 are satisfied. The content and amplitude of the power is so wide that, if it is so desired, all rights contained in Part III\n\n\n218 SUPREME COUl<T REPOllTS [ 1973) Supp. S.C.ll.\n\n\\Fundamental Rights) such as freedom of speech and expression; the freedom to form associations or unions and the various other freedoms guaranteed by Art. 19( 1) as also the right to freedom of religion as contained in Arts. 25 to 28 together with the protection of interests -0f minorities (to mention the most prominent ones) can be .abrogated and taken away. Similarly, Art. 32 which confers the right to move this court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; indeed it can be completely repealed, Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Art. 36!\\ and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country.\n\nThese petitions which have been argued for a very long time raise momentus issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. I~ was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the common man consistent with his dignitly and the unity of the nation.\n\nWe may observe at the threshold that we do not propose to examine the matters raised before us on the assum)?tion that Parliament will exercise the power in the way claimed on behalf of the respondents nor did the latter contend that i~ will be so done. . But while interpreting constitutional provisions it is necessary to determine their width or reach in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined without fully exallllning the rival claims. Unless that is done, the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.\n\nK.ES&.VA:r; ANDA 11. KERALA (She/at & Grover, JJ.) 219 ·\n\nFimr owr p11tpascs it is not 111Ccess11ry to g1lil ptim- to the year 1934 . . lt was in that year that the Inclian NatiGnal Congress made the demand for a Constiruent Assembly as part! of i; ts policy. This demand\n\nWllS 11epcated in the Central LegiS!ative Assembly in 1937 by the rcpresc:statives of the Congress. By what is koown as the Simla Conference 1.945 the Congress repeated its sttmd that India could only accept\n\nthe Go!llll'liturion dr.nm by the people. After the end ef World War II the demand was put forward very strongly by the Indian leaders including Mahatma Gandhi. Sir Strafford Cripps representing Britain had ca:ls<> accepted the idea that an elected body of Indians should frame the Indian Constirution. (') In September 1945 the newly elected\n\nBritish Labour Government annowiccd that it favoured the creation of a wnstituent , body in India. Elections were to be held so that the newly elected provincial legislatures could act as electoral bodies for the C(onstituent Assembly. A parlianienty delegation was sent to India in January 1946 and this was followecf by what is known as the Cabinet Mission. There were a great deal of difficulties owing to the\n\ndifferences between the approach of the Inclian National Congress and the Muslim League led by Mr. M. A. Jinnah. The Cabinet Mission devised a plan which was announced on May 16, 1946. By the end of\n\nJune, both the Muslim League and the Congress had accepted it with reservations.\n\nThe Constituent Assembly was cl:ected between July- August 1946 as a result of the suggestion contained in the statement of the Cabinet Mission. The Attlee Government's efforts to effect an agreement between thi: Congress and the Muslim League having failed, the partition of the country came as a consequence ci. the declaration of the British Governinent on June 3, 1947. As a re.ult of that declaration certain changes took place in the Constituent Assembly.\n\nThere was also readjustment of representation of Indian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commissioner's pr<>-\n\nvinces. There was thus a gradual process by which the Constituent Assembly became fully representative of the various communities and interests, political, intellectual, social and cultural. It was by virtue of s. 8 of the Indian Independence Act 1947 that the Constituent Assembly was veHed_ with the legal authority to frame a Constitution for India.\n\nThe .first meeting of the Oonstituent Assembly took place on December 9, 1946 when the swearing in of members and election df a temporary president r.o conduct the business until the installation of\n\na permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous \"Objectives Resolution\" giving an out-\n\n(') The facts have been taken mainly from the Indian Constitution, Cornerstone of a Nation, by Granville Austin.\n\n220 SUPREME COURT REPORTS (1973] Supp. S, C.R.\n\nline, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Asseni. bly (standing) and it declared among other matters that all power and authority of the S101Vereign Independent India, its constituent parts and organs of Governmen~ are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had concluded and the Constitution had been framed. As recited in the Preamble it was on that date tihat the people of India in the Constituent Assembly adopted, enacted and gave to themselves \"this Constitution\" which according to Art. 393 was to be called \"The Constitu ti on of India\". In accordance with Art. 394 that Article and the other Articles mentioned therein were to come into force at once but the remaining provisions of the Constitution were to come into force on the 26th day of January 1950.\n\nBefore the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it.\n\nThe Constituent Assembly was unfettered by any previous commit ment in evolving a constitutional pattern \"suitable tlO the genius and requirements of the Indian people as a whole\". The fusembly had before it the experience of the working of the Government of India Act 1935, several features of which could be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it.\n\nNone can claim superiority over the other and each of them has to function within the four-corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the conscience of the Constitution('). The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take awy or ab.idge the fundamental rights contained in Part III: Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Coun for a suitable relief('), Art. 32 itself has been constituted a fundamental right. Part IV containing the directive principles of Stal!e policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This\n\n( 1) The Indian Constitution by Granville Austin p. 50.\n\n(') Sec generally, Kania C.J. in A. K. Gopalan v. The State [1950] S.C.R. 88 at pp. 96-97.\n\n.Part, according.to Jl..'N,, Raoi'is can Instrumen~ of Instructions .from the ull, ina:ate sovereign, namely, the people of India ( 1). The -Constitution h:is all the essential .clements of a federal structure as was the case in the Government oflndia Act 1935, the essence offederalism being. the distribution . of 'powers betWeen the federation or the Union\n\nand th~ S(3.tes o~, the provinces;· All the 'l!cgislatures have plenary powers but these arc controlled, by the basic concepts of the Constitutin itlf and thty function within the. limits laid down in it('). All the functronaries, be they legislators, members of the executive or tihe judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction fro Di its provisions. : The Constitution has\n\nentrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental . rights('). It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the pnncipa1 provision being Art. 368. Although our Consti• tution is federal in its structure it provides a system modellec) on the British parliamentary systc; m. It is the executive that has the main responsibility for formulating the governmental policy by \"transmitting it into taw\" whenever necessary. '.'The executive function comprises both the, determination of the. policy as well as carrying it into execution. This evidently includes the inilliation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.\"(') With regard to the civil services and the position of the judiciary the British model has been adopted inasmuch as the appointment of judges lioth of the Supreme Court of India and of the High Courts of tihe States is kept free from political controversies .. Their independence has been assured.\n\nBut the doctrine of parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided by the Constitution. The entire scheme of 1!he Comtitution is such that it ensures the sovereignty and integrity of the country as a Republic and the deme>- cratic way of -life by parliamentary institutions based on free and fair elections.\n\nIndia is a secular State in which there is no State religion. Special provisipns have been made in the Constitution guaranteeing the freedom of conscience and free profession, practice and propagation of\n\n( 1 )- B. N. Rao, India's Constitution in the Making p. 393. (') Per Gajcndragadkar C.J, in Special Rcfcrcncc No. 1 of 1964, [1965] 1 S.CJt 413 at p. 445.\n\n( 1) Ibid p. 446. (') R. S. Ram Jawaya Ka[1Ur l!r Othb-s v. The Stak of Punjab (1955) . 2 S.C.R. 225 at p. 236.\n\nIS-36 S. C. Indial73\n\n222 SUPll!Mll COUllT ll!l'OllTS [1973] Supp. s.c.a.\n\nreligion and the freedom to manage religious affairs as also the protection of interests of Minorities. The interests of scheduled castes and the scheduled tribes have received special trcatmenn. The Rule of Law has been ensured by providing for JUdicial review. Adult suffrage, the \"acceptance of the fullest implications of democracy\" is one of the\n\nmost striking features of the Constitution. According to K. M. Pannikar, \"it may well be claimed that the Chnstitution is a solemn pronlise to the people of India that the legislature will do everything possible to renovate and remnstitute the society on new principles(')\".\n\nWe may now look at the Preamble.\n\nIt reads:-\n\n\"We, THE PEOPLt OF !Nb!A, having solemnly resolved tp constitute India into a SOVEREIGN DEMOCRATIC REPUB- LIC and to secure to all its citizens :\n\nJUSTICE, social, economic and political;\n\nLIBERTY of thought, expression, belief, faith and worship;\n\nEQUALITY of status and of opportunity; and to promote among them all;\n\nFRATERNITY assuring the dignity of the individual and the uniry of the Nation;\n\nIN OUR CONSTITUENT ASSEBML Y this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO\n\nOURSELVES THIS CONSTITUTION\".\n\nIt may be mentioned that this Preamble and indeed the whole Constitution was drafted in the light of and directions .contained in the \"OBJECTIVES RESOLUTION\" adopted on January 22, 1947.\n\nAccording to Granville Austin('), directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Ausnin, while summing up the interrelationship of fundamental rights and directive principles, says that it is quite evident that the fundamental rights and the directive principles were designed by the members of the Assembly to be the chief instruments in bringing about the great rforms of the social revolution. He gives the answer to the question whether t11ey have helped to bring the Indian society closer to the Constitution's -------- ( 1) Hindu Society at crossroads (, By K. M. Pannikar) at pages 63-64.\n\n( 2) Cornerstone •f a nation (Indian Constitution) by Granville Austin, p. 75.\n\nUSAVANANDA \"· IWALA (SMlat & Grover, JJ.) 223\n\n1!(>111 of social, economic and political justice for all in the affirmative ( 1) Das C. J. in Rt: Kera/a Ed#cation Bill 1957(') made the 'following observations with regard to Parts III and IV :- ' \"While our Fundamental Rights arc guaranteed by Part Ill o1 the Constitution, Part IV of it on the other hand, lays down certain directive principles of State policy. The provisions contained in. that Part arc not enforceable by any court but the principles therein laid down are, nevertheless, fundamental in the govern ance of the country and it sall be the duty of the State to apply these principles in making laws. Art. 39 enjoins the State to. direct its policy towards securing, amongst other things, that the citizens, men. and women, equally, have the right to an adequate means of livelihood.\"\n\nAlthough in the previous deci<; ions of this Court in Stak of Madras v.\n\nSmt. Champakam Doraira; an(') and Mohd. Hanit Qureshi & Ot!iers v.\n\nThe State of Bihar(') it had been hdd that the directive principles of State policy had to conform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief Justice was of the view which may he stated in his own words :-\n\n\"Nevertheless in dete(rnining the scope and ambit of the fundamental rights relied on by or on behalf of: any person or body the. court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious con.truction and should attempt to give effect to both as much as po5sible\".\n\nThe first question of prime importance involves the validity of the Constitution Amendment Act 1971 (hereinafter called the 24th Amendment). It amended Art. 368 of th~ ConstitJUtion for the first time. According to the Statement of Objects and Reasons in the Bill relating to the 24th amendment. the result of the judgment of this Court in Golak Nath's(') case has been that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessarv to do so for giving effect to the Directive Principles of State Policy and\n\n(') Indian Constitution (Cornerstone of a nation) by Granville Austin p: 113.\n\n(') [1959) S.C.R. 995 at p. 10~ (\") [ 1951] S.C.R. 525 at p. 531,\n\n(') [1959) S.C.R. 629.\n\n{') [1967] 2~.C.R. 762.\n\n224 SUpJ.IEM& COUB.T .it!PORTS (1973] Supp. S.CJI •..\n\nfor. attainment of the Objectives set out in the Preamble to the Constirution. It became, therefore, necessary to provide expressly that Parliament has the power to amend any provi•ion of the Constitution. including the provisions contained in Part III.\n\n. Article 368 is in a separate Part i.e. Part XX. Its marginal note before the 24th Amendment was \"Procedure for amendment of the Constlitution''. It provided in the substantive portion of the Article how the Constitution \"shall stand amended\" when \"An Amendment of this Constitution\" was initiated by the introduction of a Bill in either House of Parliament. The following oonditions had to be satisfied: -\n\n(i) The Bill had to be passed in each House by a majority of the\n\ntotal membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.\n\n(ii) The Bill had to be presented for the assent of the President and his assent had to be obtained.\n\nUnder the proviso, it was necessary to obtain ratification of legislatures of not less than one half of the States by Resolutions before presenting the Bill to the Preooent for assent if the amendment sought to make any change in the Articles, Chapters eoc. mentioned in clauses (a) to (e). Clause (e) was \"the provisions of this Article\".\n\nThe 24th Amendment made the following changes :\n\n(i) The marginal heading has been substituted by \"Power of Parliament to amend the Constitution and procedure therefor\".\n\n(ii) Art. 368 has been re-numbered as clause (2) . .•\n\n(iii) Before clause (2), the following clause has been inserted :-\n\n''Notwithstanding anything in this Constitution, Parliament may i.n exercise of the Constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article\".\n\n(iv) In clause (2) as renumbered, for the words \"it shall be presented to President for his assent and upon such assent being given to the B~I\" the words \"it shall be presented to the President who shall give his assent to the Bill and thereupon\" have been substituted.\n\nKESAVANANDA v: KEitALA ( Shelat & Grover, JJ.) 225\n\n(v) A new clause (3) has been inserted, namely:\n\n\"(3) Nothing in Article 13 shall apply to any amendment made under this article\".\n\nIa may be mentioned that by the 24th amendment clause ( 4) has been inserted im Article 13 itself. It is :\n\n\"( 4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368\".\n\nOn behalf of the petitioners, Mr. Palkhivala stated that he need not for the purposes of this case dispute the 24th Amendment in so far as it leads to the following results :-\n\n(i) The insertion of the express provision in Art. 368 that the source of the amending power is the Article itself.\n\n(ii) The President is bound to give assent to any Bill duly passed under that Article.\n\nThe following three results have, however, been the subject of great l!lcal of argument : -\n\n(i) The substitution of the words in Art. 368 \"amend by way of addition, variation or rpeal. . . ...... \" in place of the concept 'amendment'.\n\n(ii) Making it explicit in the said Article that when Parliament makes a constitutional amendment under the Article it acts \"in exercise of its constituent power\".\n\n(iii) The express provi.ion in Article 13 and 368 that the bar in the former Article against abridging or taking away any of the fundamental rights should not apply to an amendment made under the latter Article.\n\nIn the judgment of Chief Tustice Subba Rao with whom four learned judges agreed in Golak Nath's case the source of the amending power was held to reside in Art. 248 read with entry <J7 of List I to the Seventh Schedule. Whether r11at view is sustainable or not need not be considered here now owing to the concession made by Mr. Palkhivala that by amendment of Art. 368 such a power could be validly located in that Article even if it be assumed that it did not originally reside there. The real attack, therefore, is directed against the validity of the 24th Amendment in so far as the three results mentioned above arc concerned. It has been maintained that if the effect of those results is that the Parliament has clothed itself with legal sovereignty which thi!>-People of India alone possess, by taking the full constituent power,\n\n22 6 suPDME COUil' uP011TS [ 1973] Suw. s.c.a.\n\nand if the Parliament can in exercise of that power alter or destroy all or any of the 'essential .featlll'es' of the -Constitution, the 24th Amend ment will be void. The fundamental rights embodied in Part III arc a part of the 'essential features' and if their essence or core can be damaged or taken away, the 24th amendment will be void and illegal.\n\nThe position taken up on behalf of the respondents is that' so far as Article 368 's concerned, the 24th Amendment has merely clarified the doubts cast in the majority judgment in Colak Nath. That Araclc, as it originally stood, contained the constituent power by virtue . of which all or any of the provisions of the Constitution including the Preamble could be added to, varied or repealed. In other words, the power of amendment was unlimited and unfettered and was not circumscribed by any such limitations as have been suggested on behalf of the petitioners. Therefore, the crux of t!he matter is the cktermination of the true ambit, scope and width of the amending provisions contained in Art. 368 before the changes and alterations made in it by the 24th Amendment. If the Article conferred the power of the amplitude now covered by the 24th Amendment nothing new has\n\nbeen done and the amendment cannot be .challenged. If, however, the original power though having the constituent quality was a limit ed one, it could not be increased. In other words the amending body cannot enlarge its own powers.\n\nWhat then is the meaning of the word \"amendment\" as used in Art. 368 of the Constitution. On behalf of the respondents it has been maintained that \"amendment\" of this Constitution\" can have only one meaning. No question, can arise of resorting to other aids in the matter of interpretation or construction of the expression \"amendment.\"\n\nOn the other hand, the argument of Mr. Palkhivala revolves on the expression \"amendment\"• which can have more than one meaning and for that reason it is essential to discover its true import as well as ambit by looking at and taking into consideration other permissible aids of construction. No efforts have been spared on both sides to give us all the meanings of the words \"amendment\" and \"amend\" from the various dictionaries as also authoritative books and opinions of authors and writers.\n\nIt is more proper, however, to look for the true 'meaning' of the word \"amendment\" in the Constitution itself rather than in the dk\n\ntionaries. Let us first analyse the scheme of Art. 368 itself as it sl'OOd before the 24th Amendment.\n\n(i) The expression \"amendment of the ConstitUtion\" is not defined or explained in any manner although in other Parts ti the Constitution the word \"amend\" as will be noticed later,\n\nKEs.\\.V.\\.NA.NDA ti. lA (Sftlil# Cfi' Grf!!'fr, JJ.) 2l1\n\nhas beon expanded by 11sc of th~ exprssion \"~Qlend by way of addition, variation ar rcpe\\11.\"\n\n(ii) The power in rescc of amendment has not been conferred in express terms. It can be spelt out only by necessary im- . plication.\n\n(iii) The proviso uses the W(ll\"ds \"if such amcnd!llcnt seeks to make any change j.n\". It. dOC$ not use the words \"change of\" or \"change\" s; mpliciter. .\n\n(iv) The provisions of the Constitution mentioned in the proviso do not show that the basic structure of the Constitution can be changed if the procedure lai4 down therein is followed. For instance, cl. (a) in the proviso refers to Articles S4 and S5 which relate to the election of the President. It is noteworthy that Article S2 which provides that there shall be a President of India and Art. 53 which vests the power of the Union in the President and provides how it shall be exercised are not included in clause (a). It is incomprehensible that the Constitution makers intended that although the ratification of the legislatures of the requisite number of States should be obtained if any changes were to be made in Articles S4 and SS but that no such ratilication was necessarv if the office of the President was to be abolished 'Ind the excutive power of the\n\nUnion was to be exercised by same other person or authority.\n\n(v) Another Article which is mentioned in cl. (a) is Art. 73 which deals with the extent of the executive power of -the Union. So far as the Vice-President is concerned there is no mention of the relev:int Articles relating to him.· In other\n\nwords the States hve been given no voice in the question whether the ofliee of the Vice-President shall be continued or abolished or what the method of his election would be.\n\n(vi) The neict Article mentioned in cl. (a\\ is 162 which deals with the extent of the executive power of the States. The Articles relating to the appointment and conditions pf service of a Governor, Constitution and functions of his council of ministers as also the conduct of business are not mentioned in cl.\n\n(a) or any other part of the proviso.\n\n(vii) Along with Articles S4, S5, 73 and 162. Article 241 is mentioned in cl. (a) of the proviso. This Article dealt originally only with the High Courts for States in Part C of the First\n\nSchedule.\n\n(viii) Chapter IV of Parr V of the Constitution deals with the Union\n\nJudiciary and Chapter V of Part VI with the High Courts in\n\n228 SUPREME COURT REPORTS [ 1973] Supp. s.C:R.\n\nthe States. Although these have been included in cl. (b) of the proviso it is surprising !'hat Chapter VI of Part VI which relates to Subordinate Judiciary is not mentioned at all, which is the immediate concern of the States.\n\n(ix) Chapter I of Par' XI which deals with legislative .relations\n\nbetween the U ruon and the States is included in cl. (b) oi. th~ proviso but Chapter II of that Parn which deals with Administrative Relations between the Uruon and the States and various other matters in which the States would be vitally interested are not included.\n\n(x) The provisions in the Constitution relating to services under the State as also with regard to Trade and Commerce are not included in the proviso.\n\n(xi) Clause (c) of the proviso mentions the lists in the Seventh Schedule. Clause (d) relates to the representation of States in Parliament and clause ( e) to the provisions of Art. 368 itself.\n\nThe net result is that the provisions contained in els. (a) and (b) of the proviso do not throw any light on the logic, sequence or systematic arrangement in respect of the inclusion of those Articles which deal with the whole of the federal structure. These clauses demonstrate that the reason for including certain Articles and excluding other from the proviso was not that all Articles dealing with the federal structure or the States had been selected for inclusion in the proviso.\n\nThe other unusual result is that if the fundamental rights contained in\n\nPart III have to be amended that can be done without complying with the provisions of the proviso. It is difficult to understand that the Constitution makers should not have thought of ratification by the\n\nStates if such important and material rights were to be abrogated or taken away wholly or partially. It is also interesting that in order to meet the difficulty created by the omission of Articles 52 and 53 which relate to there being a President in whom the executive functions of the Union would vest, the learned Solicitor General sought to read by implication the inclusion of those Articles because according to him, the question of election cannot arise with which Articles 54 and 55 are concerned if the office of President is abolished\n\nWe may next refer to the use of the words \"amendment\" or \"amended\" in other articles of the Constitution. In some articles these words in the context have a wide meaning and in another context they have a narrow meaning. The group of articles which expressly\n\nconfer power on the Parliament to amend arc five including Art. 368.\n\nKESAVANANt>A v. XERALA (She/at & Grover, JJ.) 229\n\nThe first is Art..4. It relates to laws made under Arts. 2 and 3 to pro..\n\nvid~: for amendment of the First and the Second Schedules and supplemental, incidental and consequential matters. The second Article is 169 which provides for abolition or creation of Legislative O:>Uncils in States. The third and the fourth provisions are paras 7 and 21 of the 5th and 6th Schedules respectively which have to be read with\n\nArt. 244 and which deal with the administration of Scheduled Areas 211d Tribal Areas. The expression used in Arts. 4 and 169 is \"amendment\". In paras 7 and 21 it is the expanded expression \"amend by way of addition, variation or repeil.I\" which has been employed. Parliament has been empowered to make these amendments by law and it has been expressly provided that no such law shall be deemed to be an amendment of the Constirution for the purpose of Art. 368.\n\nIt is apparent that the word \"amendment\" has -been used in a narrower sense in Art. 4. The argument that if it be assumed that Parliament is invested with wide powers under Art. 4 it may conceivably exercise power to abolish the legislative and the judicial -Ocgans of the State altogether was refuted by this court by saying that a State cannot be formed, admitted or set up by law under Art. 4 by the Parliament which docs not conform to the democratic pattern envisaged by the Constitution('). Similarly any law which contains provisions for amendment of the Constitution for the purpose of abolition or creation of legiS!ative .councils in States is only confined to that purpose and the word \"amendment\". has necessarily been used in a narrow sense. But in Paras 7 and 21 the expanded expression is employed and indeed an attempt was made even in the Constituent Assembly for the insertion of a new clause before cl. (1) of draft Art. 304 (Present Article 368). The amendment(') (No. 3239) was pro.. posed by Mr. H. V. Karnath and it was as follows :-\n\n\"Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article''. ·\n\nMr. Karnath had moved another amendment in draft Art. 304 to suhtitute the words \"it shall upon presentation to the President receive his assent''. Both these amendments were negatived by the Constituent Assembly('). It is noteworthy that the 24th amendment as now insert- .ed has. introduced substantially the same amendments which were not accepted by the Constituent Assembly,\n\n\n.(~) Constituent Assembly Debates Vol. 9, p. 1663. (') Ibid.\n\n230 SUPIU!ME CQUl.T REPORTS [1973) Supp. s.c.Jt.\n\nThe C!lllstituent Assembly, must be presumed to be fully aware of the expanded expression, as on September 17, 1949 it had substituted the following section in place of the old s. 291 of the Government of India Act 1935 by means of Constituent Assembly Act 4 of 1949 :-\n\n\"291. Power of the Governor General to amend certain prof.lisions of the Act and order made thereunder.-\n\n\"(l) The Governor General may at any time by Order make such amendments as he considers necessary whether by way of addition, modification, or repeal, (emphasis supplied) in the provisions of this Act or of any Order made thereunaer in relation to any Provincial Legislature with respect to any of the following matters, that is to say,-\n\n(a) .................... \"\n\nThe word \"amendment\" has also been used in certain Articles like Art. 107 dealing with legislative procedure and Article lll which enables the President to send a message requesting the Houses to consider the desirability of introducing amendments etc., \"Amendment''' as used in these Articles oould only have a limited meaning as is apparent from the context. On behalf of the petitioners a great deal of reliance has been placed on the contrast between the use of the word \"amendment\" in Article 4 and 169 and paras 7 and 21 of the 5th and 6th Schedules which use the composite expression \"amend by way of addition, variation or repeal.\" It is pointed out that in Article 368 it is only the word \"amendment\" which has been used and if the Constitution makers intended that it should have the expanded meaning then there was no reason why the same phraseology would not have been employed as in paras 7 :ind 21 or as has been inserted now by the 24th amendment. The steps in this argument are :\n\n(i) The contrast in the language 'employed in the different provisions of the Constitution in respect of amendment ;\n\n(ii) conferment of the wider power for the purpose of the 5th and 6th Schedules which empower the Parliament to altr and repeal the provisions of those Schedules relating to the institutions contemplated by them, the law making authority set up under them and the fundamental basis of administration to be found in the two Schedu\\es.\n\n(iii) the wide language used in paras 7 and 21 of the two Sche.\n\ndules was meant for the purpose that at a proper time in the future or whenever considered necessary the entire buic structure of the Schedules could be repealed and the areas and tribes covered by them could be governed and administered like the rest of India.\n\nKESAVAN>.l'IDA 11. Kl!AALA (Shtltll & Grover, IJ.) 231\n\n(iv) the use of the word \"amendment\" simpliciter in Article 368 must have a narrower meaning than the composite expression \"amend\" or \"amendment\" by way of addition, variation or repeal and must correspond to the meaning of the word \"amend\" or \"amendment\" in Articles 4 and 169 .\n\n( v) The power of amending the Constitution is not concentra~\n\nin Article 368 alone but it is diffused as it is to be found m the other Articles and provisions mentioned. The reason why it was added that no law passed by the Parliament under those provisions shall be deemed to be an amendment of this Constitution for the purpose of Article 368 was only meant to clarify that the form and manner prescribed by Article 368 was not to be followed and the Parliament could, in the ordinary way, by following the procedure laid down for passing legislative enactments amend the Constitution to the extent mentioned in those Articles and provisions.\n\nThe learned Advocate General of Maharashtra, who appears for respondent No. 1, has laid a great deal of emphasis on the fact that Article 368 is the only Article which is contained in a separate Part having the title \"Amendment of the Constitution\". It is under that article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the Sth and 6th Schedules respectively can be amended. The latter group of articles contain a limited power because those Articles are subordinate to Article 368. This is illustrated by the categorical statement contained in each one of those provisions that no such law amending the Constitution shall be deemed to be an amendment there of for the purpose of Article 368. As regards the composite expression \"amend by way of addition, variation or repeal\" employed in paras 7 and 21 of the two Schedules, it has been pointed out that clause (2), in which the words \"Amendment of this Constitution\" are used clearly shows that addition, variation or repeal of any provision would be covered hy the word \"amendment\". According to the learned Attorney General the word \"amendment'' must mean, variation addition or repeal. He has traced the history behind paras 7 and 21 of Schedules S and 6 to illustrate that the expression \"amend by way of addition, variation or repeal\" has no such significance and does not enlarge the meaning of the word \"amendment\". Our attention has been invited to a number of Articles in the Consnitution itself out of which ention may be made of Articles 320(5) and 392(1) where the expressions used were \"such modification, whether by way of repeal or amendment\" and \"such adoption whether by way of modification addition or omission\". It has been urged that the expression \"amend: ment of this Constitution\" has acquired substantive meaning over the\n\n232 SUPREME 'COURT REPORTS (1973) Supp, S.C.R.\n\nyears in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition or repeal.\n\nDr. B. R. Ambedkar who was not only the Chairman of the Drafting Committee but also the main architect of the Constitution made it clear(') that the articles of the Constitution were divided into diiferent categories; the first category was the one which consisted of articles which could be amended by the Parliamenn by a bare majority; the second set of articles were such which required the twothird majority. This obviously had reference to the group of articles consisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368 respectively. The scheme of the amending provisions outlined by Dr. B. R. Ambedkar seems to indicate that the Constitution makers had in mind only one distinction between the amending power conferred by the other Articles and Article 368. No such distinction was present to their mind of the nature suggested by the learned Advocate General that the amending power conferred by Articles other than Art. 368 was of a purely subordinate nature. In one sense the power contained in the first group of Articles can be said to he subordinate in those Articles themselves could be amended by the procedure prescribed by Article 368. But that Article itself could be amended by the same procedure. It would not, therefore, be wrong to say that the amending power was of a diffused kind and was contained in more than one provision of the Consti11Ution. It appears that the statement in the articles and provisions .containing the amending power other than article 368 that any amendment made under those articles would not amount to an amendment under article 368 merely embodied the distinction emphasised by Dr. B. R. Ambedkar that one category could be amended by the Parliament by a bare majority and all the other articles could be amended by the said body but only by following the form and manner prescribed by article 368. Although pnma facie. it would appear that the Constitution makers did not employ the composite expression in Article 368 for certain reasons and even rejected Mr. Kamath's amendment which pointedly brought to their notice that it was of material importance that the expanded expression should be used, it may not be possible to consider this aspect as cnclusive for the purpose of determining the meaning of the word \"amendment\" in. Article 368.\n\nAccording to Mr. Palkhivala there can be three possible meanings of amendment :-\n\n(i) tq Improve or better; to remove an error, the question of improvement being considered from the standpoint of the basic\n\n( 1 ) Constituent Assembly Debates Vol. 9, page 1661.\n\nKEM.VA~ v. DRALA (Shelat & GrQver, JJ.) 233\n\nphilosophy underlying the Constitution but subject to its\n\nessential features.\n\n(ii) tq lllake changes which may not tall within (i) but which do. not alter. oc destroy any of the basic features, essential elements or fund;µuental princip!s of the Constitution.\n\n(iii) to make aiiy change whatsoever including changes falling\n\noutside (ii); ·\n\nHe claims that the preferable meaning is that whidi is contained in\n\n(i) but what is stated in (ii) is also a possible constructio~: Category\n\n(iii) shoulfl be ruled out altogether. Category (1) and (n) have a common factor, namely that the essential features cannot be damaged or destroyed.\n\nOn behalf of the respondents in is not disputed that the words \"amendment of this Constitution\" do not mean repeal or abrogation of this constitution. The amending power, however, is claimed <ln• behalf of the respondents to extend to .addition, alteration, substitution, modification, deletion of each and every. provision of the constitution.\n\nThe argument of the Attorney General. is that the amending power in Art. 368 as it stood before the 24th amendment and as it stands now has always been and continues to be the constituent power, e.g., the power to deconstitute or reconstitute the Constitution or any part of it. Constitution at any point of time cannot be so amended by way of variation, addition or repeal as to leave a vacuum in the government of the country. The whole object and necessity of amending power is to enable the Constitution to continue and such a constituent power,\n\nunless it is expressly limuted in the Constitution itself, can by its very nature have no limit because if any such limit is assumed, although not expressly found in the Constitution, the hole purpose of an amending power will be nullified. It has been pointed out that in the Constitution First Amendment Act which was enacted soon after the Constitution of India came into force, certain provisions were inserted, . others substituted or omitted and all these were described as amendments of the article mentioned therein. In the context of the constitution, endmem. reches every proision including the Preamble ana\n\nere 1s n~ amb1gmty about 1t which may justify having resort to etther looking at the other Articles for determining the ambit of the amendatory power or taking into consideration the Preamble or the scheme of the Consti11Ution or other permissible aids to construction.\n\nA g?D<1 deal of reliance h~ \":en placed on behalf of the respondents on Article 5 of the Constitution of the United States hereinafter\n\nlld the 'A?lerican Constiiiu?on' whlch deals with amendment and its mt~retat:tOn by the American courts. Reference has been made to\n\nthe wntmgs of authors and writers who have dealt with the meaning-\n\n234 SUPllm COURT ll!POllTS [ 1973] Supp. s.c.Jt.\n\nof the word \"amendment\" in the American Constitution. It has been .argued that in Art. 5 of that Constitution the word used is \"amendments\" and our Constitution makers had that word .in mind when they employed the expression \"amendment of this constitution\" in Article 368. We propose to refer to the decision from other countrios including those of the Supreme Court of the United States later. We wish to observe, at this stage, that our founding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and Switzerland 1n view apart from that of Japan. The whole scheme and language of Article 368 is quite different from the amending provisions in Constitutions of those countries. For instance, in U.S.A., Eire, Australia, Switzerland and Japan the people are associated in some manner or the other directly with the amending process. It would be purely speculative or conjectural to rely on the use of the word \"amend\" or \"amendment\" in the Constitution of another country unless the entire\n\nscheme of the amending section or article is also kept in mind. In India Parliament is certainly representative of the people but so are •imilar institutions in the countries mentioned above and yet there is\n\n~ provision for ratification by convention or referendum or submission of the proposed law to electors directly. Another way of discovenng the meaning on which both sides relied on is to refer to the various\n\nspeeches in the Constituent Assembly by the late Prime Minister Pan- -Oit Jawahar Lal Nehru and late Dr. B. R. Ambedkar the Chief Architects of the Constitution. The position which emerges from an examination of their speeches does not lead to any clear and conclusive result. Their speeches show that our constitution was to be an amendcable one and much rigidity was not intended. Pandit Nehru time and .again emphasised that while the Omstitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the ce>nstitution and there should be certain\n\nflexibility; otherwise it would stop a' nation's growth. Dr. Ambedkar, while dealing with draft Article 25 corresponding to the present article 32, said that the most important Article without which the Constitution would be a nullity and which was the very soul of the constitution and the heart of it was that Article. But what he said at a later stage appears to suggest that that article itself could he amended and according to the respondents even abrogated. This illustration shows . that nothing conclusive can emerge by referring to. the speeches for the purpose of interpretation of the word \"amendment''.\n\nIt is not possible to accept the argument on behalf of the respondents that amendment can have only one meaning. This word or expression has several meanings and we shall have to determine its true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. We shall certainly\n\nKESAVANA!<DA ti. lt!IW.A (Sftt//ll Grrwrr, J}.) 235\n\nbeat in milld the well known ptinciplcs of interpretation and cOllstruction, particularly, of an instrument like a Oinstitution. A Constitution is nOt to be construed in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpret it.\n\nGwyer C. J.(') adopted the words of Higgins J., of the High Coult of Australia from the decision in Att()l'ney Generlll f()I' New South Wales v. Tlze Brt:wery Employees Union of New South Wales etc.(2) according to which even though the words of a constitution arc to be interpreted on the same principles of interpretation as arc applied to any ordinary law, these very principles of interpretation require taking into account the nature and scope of the Act remembering that \"it is a constitution, a mechanism under which laws are tO be made and not a tntre Act which declares what the law is._ to be\".(') The decision must depend on the words of the Constitution as provisions of no two constitutions are in identical terms. The same learned Chief Justice said that the \"grant of the power in general terms standing by itself would no doubt be construed in the wider sense, but it may be qualified by other express provisions in the same enactment, by the implica- ' tion of the context, and even by considerations arising out of what appears to be the general scheme of the Act.\".(') The observations o{ Lord Wright in James v. Commonwealth of Australia(\") were also quoted in the aforesaid judgment of the Federal Court of India at page 73 :-\n\n\"The question, then, is one of construction and in the ultimate resort must be determined upon the actual words used rr:at/ not in a vacuo but as occurring in a single cotnplex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold a balance between all its parts.\"\n\nApart from the historical background and the scheme of the Constitution the use of the Preamble has always been made and is permissible if the word \"amendment\" has more than one meaning. Lord Green in Bidis v. General Accident. Fire and Life Assurance Corporation ( 6 ) pointed out that the words should never be interpreted in\n\nvaco because _few. words in the English language have a natural or orpmary mearung m the sense that they must be so read that their\n\n( 1) In Re. C. P. & Berar Sales of Motor Spirit & Motor Lubricants Taxa tion Act 1938 [1939] F.C.R. 18.\n\n( 2 ) [1908] 6 CL.R. 469 at pp. 611-612.\n\n( 3) [1939] F.C.R. 18, 37. (') ibid p. 42. (') [1936] A.C. 578 at p. 613.\n\n( 6) [1948] 2 AU. E.R. 998.\n\n236 S.uPREME COURT REPORTS (1973) Supp. S.C, R,\n\nmeaning is entirely independent of their context. The method which he preferred was not to take the particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified. To use his own words \"it is to read the statute as a whole and ask oneself the question.\n\nIn this state, in this context, relating to this subject matter, what is the true meaning of that word I\"\n\nWe shall first deal with the Preamble in our Constitution. The Constitution makers gave to the preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the country had struggled during the British regime and a constitution was sought to be enacted in accordance with the genius of the Indian people. Jt certainly represented an amalgam of schemes and ideas adopted from the constitutions of other countries. But the constant strain which runs throughout each artd every article of the constitution is reflected in the Preamble which could and can be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody in a very few and we11 defined wordsthe key to the understanding of the const!itution.\n\nIt would be instructive to advert to the various stages through which the Preamble passed before it was ultimately adopted by the Constituent Assembly. In the earlier draft of the Union Constitution the Preamble was a somewhat formal affair. The one drafted by B. N.\n\nRau said: -\n\n\"We, the People of India, seeking ro promote the common good, do hereby, throughout chosen representatives, enact, adopt and give to ourselves this Constitution.\"\n\nThe Union Constitution Committee provisionally accepted the draft Preamble of B. N. Rau and reproduced it in its report of July 4, 1947 without any change with the tacit recognition, at than stage, that the Preamble would finally be based on the Objectives Resolution.\n\nOn July 18, 1947, Pandit Nehru in a statemenn observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution. Three days later, while moving the report of the Union Constitution Committee, he suggested that it was not at that stage necessary to consider the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble later. The suggestion was accepted and further considci'a-\n\n~~!l of the Preamble was held over.\n\nKESAVANANDA v. KERALA (She/at & Grover, JJ.) •237\n\nThe Drafting Committee considered the Preamble at a number of its meetings in February 1948. The Committee omittJed that part of the Objectives Resolution which declared that the territories of India would retain the status of automonous units with residuary powers.\n\nBy this time the opinion had veered round for a strong centre with residuary powers. The Drafting Committee felt. that the Preamble should be restricted \"to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt . with in the Resolution. could be more appropriat; ely provided in the substantial parts of the Co1,1stitution\". Accordingly it drafted the Preamble, which subsnantially was in the presen\\ form.\n\nMeanwhile important developments had taken place in regard to the Indian States. With the completion of the process of merger and integration of the Indian States the principle had been accepted (i) of sovereign powers being vested in the people, and (ii) that their constitutions should be framed by the Constituent Assembly and should form integrated part of the new constitution. On October 12, 1949, Sardar Patel declared in the Assembly that the new Constitution was\n\n\"not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people.\"\n\nThe draft preamble was considered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of Assembly explained, was to see that it was in conformity with the Constitution as accepted. Various amendments were at this stage suggested, but were reiected. One of such was the proposal to insert , into it the words \"In the name of God\". That was rejected on the ground that it was inconsistent with the freedom of faith which was not only promised in the Preamble itself but was also guaranteed as a fundamental right. ( 1)\n\nAn amendment was moved in the Constituent Assemblv to make it clear beyond all doubt that sovereignty vested in the people. It was not accepted on the short ground that \"the Preamble as drafted could convey no other meaning than that the Constitution emanated from the people and sovereignty to make this Constitution vested in them(').\n\nThe history of the drafting and the ultimate adoption of the Preamble shows : -\n\n(1) that it did not \"walk before the Constitution\" as is said about the preamble to the United States Constitution ;\n\n( 1) Constituent Assembly Debates Vol. 10, pp. 432-442. (') The Framing of India's Constitution by B. Shiva Rao, p. 131. 16-36 S. C. lndia/73\n\n238 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\n(2) that it was adopted last as a part of the Constitution ;\n\n(3) that the principles embodied in it were taken ma.inly from the Objectives Resolution ;\n\n( 4) the Drafting Committee felt, it should incorporate in it \"the\n\nessential features of the \"new State\" :\n\n(5) that it embodied the fundamental concept of sovereignty being in the people.\n\nIn order to appreciate how the preamble will assist us in discovering the meaning of the weird \"amendment\" employed in Article 368. we may again notice the argument presented by the respondents that the amending body can alix:r, vary or repeal any provision of the Constitution and enact it and apply that process to the entire Constitution short of total repeal and abrogation. It is maintained on behalf of the Respondents that by virtue of the amending power even the preamble can be varied, altered or repealed. Mr. Palkhivala, however, relies a great deal on the preamble for substantiating the conix:ntion that\n\n\"amendment\" does not have the widest possible meaning as claimed by the respo11dents and there are certain limitations to the exercise of the amending power and, therefore, the expression \"amendment\" should be construed in the lighn of those limitations. All the elements of the Constitutional structure, it is said, are to be found in the preamble and the amending body cannot repeal or abrogate those essential elements because if any one of them is taken away the edifice as erected must fall.\n\nThe learned Advocate General of Maharashtra, says that the preamble itself is ambiguous and it can lie ci no assistance in that sit:ua-. tion. It has furthr been contended that the concepts recited in the preamble, e.g., human dignity, social and economic justice are vague; different schools of thought hold different notions of their concepts.\n\nWe are wholly unable to accede to this contention. The preamble was finalised aftet a long discussion and it was adopted last so that it may embody the fundamentals underlying the structure of the constitution.\n\nIt is true tha~ on a concept such as social and economic justice there may be different schools of thought but the Constitution makers knew what they meant by those concepts and it was with a view to implement them that they enacted Parts III (Fundamental Rights) and Part IV (Directive. Principles of Stare Policy) - both fundamental in character-on the one hand, basic freedoms to the individual and on the other social security, justice and keedom from exploitation by laying down guiding principles for future governments.\n\nKESAVANANDA v. KERALA (She/at & Groter, JJ.) 239\n\nOur court has consistently looked to the preamble for guidanc& and given it a transcedental position while interpreting the Constitution or other laws. It was so referred in Behram Khurshid Pesikaka' s(') case. Bhagwati J., in Basheshar Nath v. Commissioner of Income-tax(') Rajasthan when considering the question of waiver of a fundamental right referred to the preamble and to the genesis of declaration of fundamental rights which could be traced to the report of the Nehru Committee of 1928. He proceeded to' say \"the object sought to be achieved was, as the preamble to the Constitution states ................ \" In Re Kera/a Education Bill 1957(') this court rc.- ferred to the preamble extensivcly and observed that the fundamental rights were provided for \"to implement and fortify the supreme purpose set forth in the preamble\". The court also made use of the \"inspiring and nobly expressed preamble to our Constitution\" while expressing opinion about the legality of the various provisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from judgments of this Court in which the preamble has been treated almost as sacrosanct and has been relied on or referred to for the purpose of interpreting legislative provisions. In other countries also following the same system of jurisprudence the preamble has been referred to for finding out the Constitutional principles underlying a Constitution. In Rex v. Hess(') it was said :-\n\n'I conclude further that the opening paragraph of the preamble to the B. N. A. Act 1867, which provided for a \"Constitution similar in principle to that of the United Kingdom\" thereby adopted the same constitutional principles and hence s. 1025A is contrary to the Canadian Constitution and beyond the competence of Parliament or any provincial legislature to enact so long as our Constitution remains in its present form of a constitutional democracy.\"\n\nIn John Switzman v. Freda Elbling & Attorney General of the Province of Quebec('), Abbot J., relied on the observations of Duff C. J., in an earlier decision in Re Alberta Statutes(\") which was affirmed in Attorney General for Alberta v. Attorney General for Canada(7)-\n\nthat view being that the preamble of the British North America Act showed plainly enough that the Constitution of the Dominion was to be similar in principle to that of the United Kingdom. The statute\n\n\n( 2) [1959] Suppl. 1 S.C.R. 528.\n\n( 8) [1959] s.c.R. 995. (') [1949] Dom. L.R. 199 at p. 208. (') [1957] Canada L.R. 285 at p. 326 (Supreme Court). (') [1938] S.C.R. 100 (Canada).\n\n(') [1939] A.C. 117.\n\n240 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\ncontemplated a Parliament working under the influence of public Qpinion and public discussion. In McCawley v. The King Lord Birkenhead (1) (Lord Chancellor) while examining the contention that the Constitution Act of 1867 (Queensland, Australia) enacted certain fundamental organic provisions of such a nature which rendered the Constitution sterotyped or controlled proceeded to observe at page 711:-\n\n\"It may be premised that if change so remarkable were contemplated one would naturally have expected that the legislature would have given some indiqtion, in the very lengthy preamble of the <\\ct, of this intention. It has been seen that it is impossible to point to any document or mstrument giving to, or imposing upon the Constitution of Queensland this quality before the year\n\n1867. Yet their Lordships discern nowhere in the preamble the least indication that it is intended for the first time to make provisions which are sacrosanct or which at least can only be modified by methods never previously required.\"\n\nIn re. Berubari Union and Exchange of Enclaves(') an argument had been raised that the preamble clearly postulated that the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amendment. The Court characterized that argument as extreme and laid down the following propositions :-\n\nI. A preamble to the Constitution serves as a key to open the minds of the makers, and shows the general purposes for - which they made the several provisions in the Constitution;\n\n2. The preamble is not a part of our Constitution;\n\n3. It is not a sourte of the several powers conferred on government under the provisions of the Constitution;\n\n4. Such powers embrace those expressly granted in the body of the Constitution \"and such as may be implied from those granted\";\n\n5. What is true about the powers is equally true about the prohibitions and limitations;\n\n6. The preamble did not indicate the assumption that the firsr part of preamble postulates a very serious limitation on one of the very important attributes of sovereignty, viz., ceding\n\n(1) [1920] A.C. 691 at p. 711.\n\n\nKESWANANDA ti. KERALA (She/at & Grover, JJ.) 241\n\nterritory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory.\n\nOn behalf of the respondents reliance has been placed on this case for the propooition that no. mitation was read by virtue of the preamble. A careful reading of the judgment shows that what was rejected was the contention that the preamble was the source of ! power. Indeed, it was held that the preamble was not even a partl of 1 the Comtitution and that one rn, ust se.ek power and its scope in the provisions of the Constitution. The premise for the conclusion was that a preamble is not the source of power since it is not a part of the Constitution. The learned Advocate General of Maharashtra has himself disputed the conclusion in the aforesaid judgment that the preamble is not a part of the Constitution. It is established that it was adopted by the Constituent Asemblv after the entire Constitution had been adopted. ·\n\nMr. Palkhivala has given an ingenious explanation as to why the preamble cannot be regarded as a part of our Constitution. He makes a distinction between the concept of the Constitution and the concept of the Constitution's statutes. The last words in the preamble \"This Constitution is the Constitution which follows the preamble, \"according to Mr. Palkhivala. It starts with Arr. 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be concluded from this that . the way in which the preamble has been draftt:d, indicates that what follows or is annexed to the preamble is the Constitution of India. It is further argued that :\n\n\"The Constitution statute of India consist of two parts-one, the preamble and the other the Constitution: The preamble is a part of the Constitution statute, but is not a part of the Constitution.\n\nIt precedes it; The preamble came into force on Nov. 26, 1949 and not 26th January 1950 as contended on behalf of Respondent No. l\"\n\nThere is. a clear recital in the preamble that the people of India gave to themselves this Constitution on the 26th day of November .\n\n1949. Even if the preamble was actually adopted by the Constitutent Assembly at a later date, no one can question the statement made in the Preamble that the Constitution came into force on the date mentioned therein. The preamble itself must be deemed by a legal fiction ro have come into force with effect from 26th November 1949. Even if this-is a plausible conclusion, it does not appear to be sufficient to support the observation in the Berubari case that the preamble was not a\n\n242 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\npart of the Constitution. To our mind, it hardly makes any substantial difference whether the preamble is a part of the Constitution or not. The preamble serves several important purposes. Firstly, it indi cates the source from which the Constitution comes viz. the people of India. Next; it contains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citirzen• and the basic type of government and polity which was to be established. From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by Art. 368.\n\nThe stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one.\n\nIt may be true about ordinary statutes buti it cannot possibly be SU$- tained in the light of the historical background, the Objectives Resolution which formed the basis of the preamble and t; he fundamental position which the preamble occupies in our Constitution. It constitutes a land-mark in India's history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the 'Constitution makers ever conceived of a stage hen it would be claimed that even the preamble could be abrogated or wiped out.\n\nIf the preamble contains the fundamentals of our Constitution, it has to be seen whether the word amendment in Art. 368 should be so construed that by virtue of the amending power the Constitution can be made to suffer a complete loss of identity or the basic element• on which the constitutional structure has been erected, can be eroded or taken away. While dealing with the preamble to the United States, Constitutio'.l it was observed by Stqry ( Comment)lries on the Constitution of the United States, 1833 edition, Volume I), that the preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the Government. Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them(').\n\nNow let us examine the effect of the declarations made and the statements contained in the preamble on interpretation of the word \"amendment\" employed in Art. 368 of the Constitution. The first thing which the people of India resolved to do was to constitute tlheir\n\n( 1 ) Story, para 462 at p. 445.\n\nKESAVANANDA v. KERALA (Shelat & Grover, JJ.) 24:>\n\ncountry 'into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner.\n\nTheir true import and connotation is so well known that no question of any ambiguity is involved. The question which immediately arises is whether the words \"amendment or amended ... as employed in Art. 368 can be so interpreted as to confer a power on the amending body to take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created bv our Constitution undemocratic as opposed to democratic; or aboli; h the office of the President and, instead, have some other head of the Stalle who would not fit into the conception of a \"Republic\" The width of the power claimed on behalf of the respondents . has such large dimension that even the above part of the preamble can be. wiped out from which it would follow that India can cease to be a Sovereign Democratic Republic and can have a polity denuded of sm-ereignty, democracy and Republican character.\n\nNo cme has suggested-it would be almost unthinkable for anyone to suggest-that the amending body acting under Art. 368 in our country will ever do any of the things mentioned above, namely change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic. But while examining the width of the power, it is essential to see its limits, the maximum and the minimum; the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of a constitutional provision, it is whollv immaterial whether there is a likelihood or not of such an evenu; ality arising.\n\nMr. Palkhivala cited example of one country after another in recent history where from a democratic constitution the amending power' was so utilized as to make that country wholly undemocratic resulting in the negation of democracy by establishment of rule by one party or a small oligarchy. We are not the least impressed by these instances and illustrations. In the matter of deciding the que>- tions which are before us. we do not want to be drawn into the political arena which, we vent:ure to think, is .. out of bounds\" for the judiciary and which . tradition has been cons; stently followed by this Court. [See Wanchoo J, as he then was in Golak Nath(')].\n\nSince the respondents themselves claim powers of such wide magnitude that the results which have been briefly mentioned can flow apart from others which shall presently notice, the coniequences\n\n( 1) (1967) 2 S.C.R. 762 at p. 850.\n\n244 SUpREME COURT REPORTS [1973] Supp. s.C.R.\n\nand effect of suggested construction have to be taken into account as 'has been. frequently done by this Court. Where two wnstructions arc:\n\npossible the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-establmshed provisions of existing law nugatory(').\n\nIn Don John Francis Douglas Liyange & Ors. v. The Queen('), Lord Pearson declined oo read the words of s. 29( I) of the Ceylon Constitution as entitling the Parliament to pass legislation which usurped the judicial power of the judicature by passing an Act of Attainder against some persons or instructi11g a judge . to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution.\n\nIn Maxwell's Interpretation of Statutes (12th Edition), Chapter 5 deals with restrictive construction and the very first section contains discussion on the question whether the consequences of a particular construction being adopted can be considered and examples have been given from cases decided in England with reference t!O the consequences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372, 373 there are cases in which consequences of a particular construction are in and of themselves, conclusive as to the correct solution of the question.\n\nThe learned Advocate General of Maharashtra has contended that the proper way of construing an amending provision is not to take into consideration any such speculation that tihe powers conferred by it, would be abused. It has also been, said that any coun deciding the valirlity of a law cannot take into consideration extreme hypothetical examples or assume that a responsible legislature. would make extravagant use of the power(').\n\nAccording to Mr. Palkhivala, the test of the true width of a power is not how probable it is that it may be exercised but what can possibly be done under it; that the abuse or misuse of power is entlirely irrelevant; that the question of the extent of the power cannot. be mixed up with the question of its exercise and that' when the real question is as to the width of the power, expectation that it will never\n\n( 1) State of Punjab v. Ajaib Singh and Anr. [1953] S.C.R. 254 at page 264; Director of Custon1s, Baroda v. Dig Vijay Singhji Spining & Weaving Mills Ltd. [ 1962] I s.c.R. P• 896.\n\n( 2 ) [1967] (I) A.C. 259. (') Th< Bank of Toronto v. Lambe (1887) 1'2 A.C. 575 at pp. 586-587.\n\nKESAVANANDA v. KERALA (Shelat & Grover, )J.) 245\n\nbe used is as wholly irrelevant as an imminent dnger o(its use. The <:ourt does not decide what is the best what is the worst. It merely decides what can possibly be done under a power if the words conferring it are so construed as to have an unbounded and limitles< width, as claimed on behalf of the respondents.\n\nIt is _difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the consequences to which a . particular construction can lead while ascertaining the limits of the provisions granting the power.\n\nAccording to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to constitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body now under Art. 368 to change the Sovereign Demo. aatics Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the pover conferred by it. : . . -\n\nThe othr part of the Preamble may next be examined. The Sovereign Democratic Republic has been constituted to secure to all the <:itizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. \\Vhile most cherished freedoms and rights have been guaranteed the government has been laid under a solemn duty to give effect to the Directive Principles. Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the individual can be 'achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted. The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the objectives in the Preamble, the nature of polity mentioned therein and the grand vision of a unjted and free India in which every individual high or low will partake of all that is capable of achievemnt. Vie must, therefore, advert to the background in which Parts III and IV came to be enacted as they essentially form a basic element of the Constitution without which its identity will completely change.\n\n246 SUPREME COUR~ REPORTS ( 1973] Supp. S.C.R.\n\n It is not possible to go back at any length to the great struggle for freedom from British Rule and the attainment of independence.\n\nThe British executive's arbitrary acts, internments and deportations without trial and curbs on the liberty of the press and individuals are too well known to every student pf Indian history to be specificallv mentioned. This was before some essential rights based on British Common law and jurisprudence came to be embodied in various Parliamentary enactments. According to B. N. Rau('), human rights, with few exceptions, were not guaranteed by the Constitution (Government of-India Act). 'Shiva Rao has in his valuable study(') given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged a Constitution guaranteeing a number of freedoms and rights. Two events at a later stage exercised a decisive influence on the Indian leaders. One was the inclusion-Of a list of fundamental rights in the Constitution of Irish Free State in 1921 and the other, the problem of minorities. ( 3)\n\nThe next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some details, the deliberations of the Sapru Committee appointed by the All India Prties Conference (1944-45). The British Cabinet Mission in 1946 recommended the setting up of an Advisory Committee for reporting inter alia on fundamental rights. Before reference is made to the Objectives Resolu-::ion adopted in January 22, 1947 it must be borne in mind that the post war period in Europe had witnessed a fundamental orientation in juristic thinking, particularly in West Germany, characterized by a farewell to positivism, under the influence of positivist legal thinking. During the pre-war period most ol the German Constitutions did not provide for judic; al review which was conspicuously absent from the Weimar Constitution even though Hugo Preuss, often called the Father of that Constitution, insisted on its inclusion. After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain norms immune fron1 amendment or abroga!1orL This was done in the Constitution of the Federal Republic of G<rmany. The atrocities committed during Second World \\Var anc' t'.ic world wide agitation for human rights ultimately embodied ; n ti:<' U. N. Declaration of Human Rights on which a number of the proqsions in Parts Ill and IV of our Constitution are fashioned mnst net\n\nbe forgotren while considering these matters. Even in Great Briroin.\n\n( 1 ) Year Book of Human Rights 1947.\n\n( 2) Framing of India's Constirution (B. Shiva Rao).\n\n( 3 ) Ibid p. 172.\n\nKESAVANANDA v. KERALA (She/at & Grover, JJ.) 247\n\nwhere the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskine, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature.(') The Objective's Resolution declared, inter alia, the firm and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance a Constitution. Residuary powers were to vest in the States. All power and authority of the Sovereign Independent India, its constituent parts and organs of government. were derived from the people and it was stalled :-\n\n\"(5) wherein shall be guaranteed and secured to all the people of India, justice, social, economic and political; equality cl status, of opportunity, and before the law; freedom of thought,. expression, belief, faith, worship, vocation, association and acaon, subject to law and public morality; and\n\n( 6) wherein adequate safeguards shalil. be provided for miner. rities, backward and tribal areas, and depressed and other backward classes; and\n\n(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations, and\"\n\nIt may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6,\n\n1946 only three main communities; general, muslims and sikhs. General community included all those who were non-muslims or non- •ikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the\n\nIndian pee>ple subject only to two matters which were; ( 1) willingness to conclude a treaty with His Ma'esty's Government to cover matters arising out of transfer of power and (2) adequate provision, for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set ur an Advisory Committee on January 24, 1947. The Committee was to consist of represent:atives of muslims, ti1e depressed classes or the scheduled castes, the sikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus('). As a historical fact it is safe\n\n(1) This follows from the dccisioos in Moor< v. Th< Attorn<y G<n<ral fo1• th< Irish Pre< Stal< (1935) A.C. 484; Attorney Gen<ral for New South Wale~\n\nv. Trethowan {1932) A.C. 526.\n\n( 2) Constituent Assembly Debates Vol. 2 pages 31().349,\n\n248 SUPREME COURT REPORTS ( 1973 j Supp. S.C.R,\n\nto say that at a meeting hdd on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted suppon from an overwhelming majority of the members of the Advisory Committee. So far. as the scheduled\n\n<:astes were concerned it was felt that their pecuHar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representatik>n of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a hisl)Ofical fact which moulded its nature and character. Since the language of e Preamble was taken from\n\nthe resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, libeny and equality was implemented in Parts III and IV and other provisions of the Constitution. These formed not only the essential features of the Constitution but also the funda-\n\n1 mental conditions upon and the basis on which the various groups\n\nand in!ICrests adopted the Oonstitution as the Preamble hoped to create one uIDlied integrated community. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe(') will require a more detailed discussion in view of the elaborate arguments addressed on both sides based on it. But for the present all that need be pointed out is that the above language is borrowed mainly from the judgment of Lord Pearce who, after setting out s. 29 of the Ceylon Constitu-\n\n1 tional Order which gave Parliament the power to make laws for the peace, order and good government of the island, said with regard to d. (2) according to which no law could prohibit or restrict the free exercise of any religion,\n\n\"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these arc therefore unalterable under the Constitution\".\n\nAnother opposite observation in this connection was made in In re\n\nthe Regulation and Control of Aeronautics in Canada(') whilt interpreting the British North Amcriea Act 1867. It was said that inasmuch as the Act embodied a cnmpromisc under which the original\n\n(') (1965] A.C. 172 at pp. 193-194.\n\n(2) (1932] A.C. 54 at p. 70.\n\nKESAVANANDA \"· KERALA (She/at & Grover, JJ.) 249\n\nprovinces agreed to federate, in is important to keep in mind that the preservati_on of the rights of minorities was a condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected.\n\nOur Constitution is feder:i! in character and not unitary. In a federal structure the existence of both the Union and the Statics is indispensable and so is the power of iudicial review. According to Dicey:(')\n\n\"A federal State derives. its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belong 1Xl the nation or to the individual States, is subordinate to and controlled by the co.'.lstitution\".(')\n\nThe object for which a federal State is formed involves a division of: authority between the national government and the separate States.(2) Federalism can flourish only among communities imbued with a legal spirit and trained to reverence the law. Swiss federalism, according to Dicey, \"fails, just where one would expect it to fail, in maintaining that complete authority of the courts which is necessary to the perfect federal system\".(') The learned Advocalle General of Maharashtra while relying a great deal on Dicey's well known work in supl¥'rt of his other points, has submitted that although he was one of the greatest writers on the law of English Constitution, his book was concerned with two or three guiding principles which pervade the modern Constitution of England. The discussion of federal government in his book was a subordinate part and the discussion was designed to bring out sharply the two or rhree guiding principles of the English Constitution by contrast with the diffrent principles underlying the Constitution of the federal government. Reliance has been placed on Professor Wheare' s statement in his book(') that the Swiss Courts are reqnircd by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that: docs not constitute such a departure from the federal principle that the\n\nSwiss people cannot be regarded as having a federal Constitution and a federal government. Switzerland is probably the only country having a federal Constitution where full-fledged right of judicial review is not provided. We are unable to understand how that can have any relevancy in the presence of judicial review having been made an. integral part of our Constitution.\n\n( 1 ) Law of the Constitution by A. V. Dicey p. 144.\n\n(') Ibid P 151.\n\n( 1) Ibid p. 180. (') Federal Governmcn~ 4th Edn. (1963).\n\n150 SUPREME COURT REPORTS [ 1973] Supp. s.c.ll.\n\nIt is pointed out on behalf of tlhe petitioners that the scheme of Art. 368 itself contains intrinsic pieces of evidence to give a limited meaning to the word \"amendment\". Firstly, Art. 368 refers to \"an amendment of this ConstitJUtion\", and the result of the amendment is to be that \"the Constitution shall stand amended\". As the Constitution has an identity of its own, an amendment, made under a power how- soever widely worded cannot be such as would render the Constitution to lose its character and nature. In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is conferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Par liamcnq of the Sovereign Democratic Republic. It is llOt any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must continue t!O be the Parliament of a sovereign and .democratic republic. The institution of States must continue to exist in order that they may continue to be associated with the amending power in the cases falling under the proviso. If the respondents arc right, the proviso can be comp'. ,,., y deleted since Art. 368 itself can be amended. This would be wh• '. contrary to the scheme of Art. 368 because two agencies are providt for amending the provisions covered by the proviso. One agency caru 1t destroy llhc other by the very exer- cise of the amending power. T .c effect of limitless amending power in relation to amendment of Art. 368 cannot be conducive to the survival of the Constitution because the amending power can itself be taken away and the Constitution can be made literally unamendable -Or virtually unamcndablc by providing for an impossible majority.\n\nWhile examining clie above contentio.ns, it is necessary to consider the da.im of the respondents that the amending body under Art. 368 has the full constituent power. It has been suggested that on every occasion the procedure is followed as laid down in Article 368 by the two Houses of Parliament and the assent of the President is given there is the reproduction of the functions of a Constituent Assembly. In other words, the Parliament acts in the same capacity as a Constituent Assembly when exercising the power of amendment under the said Article. This argument docs not take stock of the admission made on behalf of the respondents that the entiro Constitution cannot be repealed or abrogated by the amending bo<ly. Indisputably, a Constituent Assembly specially convened for the purpose would have the power to completely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution.\n\nKESAVANANDA fl. KERALA (Shelat & Grover, JJ.) 251\n\nThe amending body has been created by the Constitution itself. It can\n\nonly exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits.\n\nThe respondents have taken up the position that even if the power was limited to some extent under Art. 368, as it originally stood, that power could be enlarged by virtue of clause ( e) of the proviso. It must be noted that the power of amendment lies in the first part of Art. 368. What cl. ( e) in the proviso docs is to provide that if Art. 368 is amended, such an amendment requires ratification by the States, besides the larger majority provided in the main part.\n\nIf the amending power under Art. 368 has certain limits and not unlimited Art. 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the vdice of the states in the amending process. If the Constitution makers were inclined to confer the full power of a Constituent Assembly, it could have been easily provided in suitable terms. If, however, the original power wa~ limited to some extent, it could not be enlarged by the body possessing the limited power. That being so, even where an amending power is expressed in wide terms, it has to be exeocist'd within the framework of the Constitution. It cannot abrogate the Constitution or frame a new Constitution or alter or change the essential clements of the constitutional structure. It cannot be overlooked that the basic theory of our Constitution is that \"Pouvoir Constituent\", is vested in the people and was exercised, for and on other behalf by the Constituent Assembly for the purpose of framing the Constitution.\n\nTo say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or controlled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an over-simplification.\n\nIn certain Constitutions there can be procedural and or substantive limitations on the amending power. The procedural limitations could be by way of a prescribed form and manner without the satisfaction of which no amendment can validly result. The form and manner may take different forms such as a higher majority either in the houses oi the concerned legislature sitting jointly or separately or by way of a convention, referendum etc. Besides these limitations, there can be limitations in the content and scope of the power. To illustrate, although the power to amend under Art. 5 of the U. S. Constitution resides ultimately in the people, it can be exercised in either of the modes as might be prescribed by the Congress viz. llhrough ratification by the State legislatures or through conventions, specially convened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the consent of the State. The\n\n252 SUPREME COURT REPORTS ( 1973) Supp. S.c.L\n\ntrue distinction between a controlled and an uncontrolled Constitution lies not mere! y in the difference in the procedure of amendment, but in the fact that in controlled Constitutions the Constitution has a. higher status by whose touch-st.one the validity of a law made by the legislature and the organ set up by it is subjected to the process of judicial review. Where there is a written Constitution which mpts the preamble of sovereignty in the people there is firstly no question of the law-making body being a sovereign body for that body possesses only those powers which are conferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution contains a Bill of Rights for such a Bill imposes restraints on that body, i.e. it ncga~ the equation of that body with the people.\n\nBefore concluding the topic on the inllerpretation or construction of the words \"amendment of this Constitution\" in Article 368, it is necessary to deal with some Ameri~ decisions relating to Art. 5 of the American Constitution on which a great deal of reliance wa~ placed on behalf of the respondents for establishing that the word \"amendment\" has a precise and definite meaning .which' is of the widest amplitude. The first relates to the 18th amendment. known as the National Prohibition cases in the St4Je of Rhode Island v. A.\n\nMitchel Palmer('). In that case and other cases heard with it, elaborate arguments were addressed involving the validity of the 18th amend ment and of certain features of the National Prohibition Law, known as Volstead Act, which was adoplled to enforce the amendment. The relief sought in. each case was an injunction against the execution of that Act. The Gourt merely stated its conclusions and did not give any reasons-a !\\tatter which was profoundly regretted by Chief Justice White. From the conclusions stated and the opinion of the Chief Justice it appears 1.that a good deal of oontroversy centered on section 2 of the amendmel/.t which read \"Congress and the several States shall have concurrent p<hvet to enforce this Article by .appropriate legisla tion\". In the dissenting opinion of Mr. Justice Mckenna it was said that the constitutional validity of the 18th amendment had also been attacked and although he dissented in certain other m.atters he agreed that the 18th amendment was a part of the Constitution of the United States. The learned Advocate General of Maharashtra has placed a great deal of reliance On this decision. His argument is that though the judgment in the Rhode lslatul gives no reasons, yet it is permissible to look at the elaborate briefs filed by the courucl in several cases and their oral arguments in order to underst1a11d what was argued and what was decided. One of the m.ain contentions raised was that the 18th amendment was not in fact an amendment, for an\n\n(') 64 L. Ed. 9-46.\n\nKESAVANANDA v. KEEALA (Shelat & Grover, JJ.) 253\n\namendment is an alteration or llllprovement of that which is already there in the Constitution and that term is not intended to include any addition of a new grant of power. The judgment shows that this argument was not regarded even worth consideration and was reject ed outright. Now it is significant that most of the justices including the Chief Justice who delivered judgments dealt only with the questions which had nothing to do with the meaning of the word \"amend ment\". It is not possible to derive much assistance from this judgment.\n\nIn J. J. Dhillon v. R. W. Gloss(-1) it was observed that an examination of Art. 5 discloses that it was intended to invest Congress with a wide range of power in proposing amendments. However, the following observations are noteworthy and have been relied upon in support of the case of the petitioners that according to the United States Constitution it is the people who get involved in the matttt of amendments. \"A further mode of proposal-as yet never invoked-is provided, which is, that on application of two-third of the Statcs, Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective must be ratified by the legislatures or by convention in three fourths of the States as the one or the other mode of ratification may be proposed by the Congress\". Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition for amending that instrument that the amendment be submitted to representativ~ assemblies in the several States and be ratified in three-fourths of them. The\n\nplain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratificatibn by these assemblies in three-fourths of the States shall be taken as a deci sive expression of the people's will and be binding on all.\n\nAlthough all the amend_ments were made by the method of ratification by the requisite number of Statie legislatures, the convention mode was adopted when the 18th amendment was repealed by the 21st amendment Another case, United States of America v. William H. Sprague & William f. Howey('), will be discussed more fully while considering the question of implied limitations. All that it establishes for the purpose of meaning of amendment is that one must look to thr\n\nplain language of the Article conferring the power of amendment and not travel outside it. Article 5, it was said, contained procedural provisions for constitutional change by amendment without any present\n\nlimitation whatsoever except that no State might be deprived of equal representation in the Senate without its consent. Mr. Justia\n\n( 1) 65 L.Ed. 994. (') 75 L. Ed. 640, 644. 17-36 S. C. India/73\n\n254 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.\n\nDouglas while delivering the opinion of the court in Howard /oseph\n\nWhitehill v. Wilson Elkins(') stated in categorical terms that the Constitution prescribes the method of \"alteration\" . by amending process in Article 5 and, while the procedure for amending it is restricted there is no restraint on the kind of amendment that mav be offered.\n\nThus the main submission on behalf of the counsel for the respondents has been that Article 5 of the United StatlCs Cbnstitution served as model for Article 368 of our Constitution.\n\nArticle V provides different modes of amendment. These may be analysed as follows :\n\nThe proposals can be made-,\n\n(1) By two thirds of both Houses of the Congress or\n\n(2) By a Convention for proposing amendments to be called by the Congress on the application of legislatures of twothirds of the States.\n\nThe ratification of the proposals has to be made by\n\n(1) Legislatures of three fourths of th~ StatlCs or\n\n(2) by Conventions in three fourths thereof (as one of the other mode of ratification may be proposed by the Congress).\n\nIn Hawke v. Smith('), the question raised was whether there was any conflict between Article 5 of the U. S. Constitution which gave power to the Congress to provide whether the ratification should be by State Legislatures or Conventions and the Constitution of Ohio as amended.\n\nThe Supreme Oiurt held that Article 5 was grant of authority by the people to Congress. The determination of the method of ratification was the exercise of the national power specilically granted by the Constitution and that power was limited to two methods, by the State Legislatures or by Conventions. The method of ratification, however, was left to the choice of Congress. The language of the Article was plain and admitted of no doubt in its in11erpretation. In that case the Constitution of Ohio even after amendment which provided for referendum vested the legislative power primarily in a General Assembly oonsisting of a Senate and a House of Representatives.\n\nThough the law making power of a State was derived from the people the power to ratify a proposed amendment to the Federal Constitution had its source in that Constitution. The act of ratificatiion by\n\n( 1) 19 L. Ed. 2d. 228. (') 64 L. Ed. 871.\n\nKESAVANANDA v. KEllALA (Shelat & Grover, JJ.) 255\n\nthe State derived its authority from the federal Constitution. There- . '-0re, in order to find out the authority which had the power to ratify, it was Article 5, to which one had. to turn and not to the State Constitution. The choice of means of ratificatloo was wisely withheld from conflicting action in the several States.\n\nOn behalf of the respondents it is claimed that these decisions establish that the power of amendment conferred by Article 5 was of the widest amplitude. It could be exercised through the representatives of the people, both in the Congress and the State Legislatures. Jn the case of Article 368 also Parliament consists of representatives of the people and the same analogy can be applied that it is a grant of auth<>- rity by the people to the Parliament. This argument loses sight of the fact that under the American theory of government, power is inherent in the people including the right to alter and amend the organic instrument of government. Indeed, practically all the State Constitu\n\ntions associate the people with the amending process. The whole basis of the decisions of the Supreme Clourt of the United States and of some of the State Supreme Courts is that it is the people who amend the Constitution and it is within their power to make the federal Constitution or unmake it. The reason is quite obvious. So far as Article 5 of the American Constitution is concerned, out of the alternative methods provided for amendment, there is only one in which the people cannot get directly associated, whereas in the others they are associated with .the amending process, e.g., proposal of amendment by two-thirds of both Houses of Congress and its ratification by conventions in three-fourths of the States or a proposal of amendment by a convention called on tihe application of two-thirds of the State Legislatures and its ratification by either convention in three-fourths of the States or by the Legislature of the same number of States.\n\nThe meaning of the words \"amendment of this constitution\" as used in Article 368 must be such which accords with the true intention of the Constitution makers as ascertainable from the historical back ground, the Preamble, the entire scheme of the Constitution, its structure and framework and the intrinsic evidence in various Articles including Art. 368. It is neither possible to give it a narrow meaning nor can such a wide meaning be given which can enable the amending body to change substantially or entirely the structure and identity of the Constitution. Even the concession of the learned Attorney General and the Advocate General of Maharashtra that the whole Constitution cannot be abrogated or repealed and a new one substitut ed supports the conclusion that the widest possible meaning cannot\n\nbe given to it. ·\n\n256 SUPREME COURT REPORTS (1973] Supp. S.C.ll.\n\nComing to the question of what has been called 'inherent and implied limitations' to the amending power in Article 368 of OH' Constiwtion Mr. Palkhivala has maintained that inherent limitations are those which inhere in any authority from its very nature, character and composition whereas implied limitations are those which are not expressed bu1 are implicit in the scheme of the Constitution conferring the power. He maintains that the \"rule is established beyond cavii that in construing the OJnstitutUin of the United States, what is implied is as miach a part of the instrument as what is expressed\".(')\n\nAlthough the courts have rejected in various cases a plea that a particular inherent or implied limitation should be put upon SQJile specific constitutional J'!OWer, no court, says Mr. Palkhivala, has ever rejected the principle that such limitations which are fairly and properly deducible from the scheme of the Constitution should be read as restrictions upon a power expressed in general terms.\n\nSeeral decisions of our court, of the Privy OJuncil, Irish courts, Canadian and Australian courts have been cited in support of the contention advanced by him.\n\nThe approach to this question has essentially to be to look at our own decisions firs.t. They fall in two categories. In one category are those cases where limitations have been spelt out of constitutUinal provisions; the second category consists of such decisions as have laid down that there is an implied limitation ori legislative power.\n\nTaking up the cases of the first category, before 1955, Art. 13(2) was read as containing an implied limitation that the State could . acquire property only for a public purpose. (The Fourth Amendmen1\n\nexpressly enacted this limitation in 1955). It was observed in Chirafl- #J Lal Chowdhauri v. The Union of India & others(') that one limitation imposed upon acquisition or taking possession of private property\n\nwhich is implied in the clause is that such taking must be for • public purpose. Mahajan J., (later Chief Justice) said in the State of Bihar v. Maharaiadhiraja Sir Kameshwar Singh of Darbhanga & Ors(\") that the existbnce of a public purpose is undoubtedly an implied oondition of the exercise of compulsory power of acquisition by the State. The power conferred by Arts. 3 and 4 of the <Anstitutinn to form a new State and amend the Coristitution for that purpose has been stated to contain the implied limitation that the new State must conform IP the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is non the power to override the constitution scheme.(') It may be mentioned that so far . :•s , Art. 368 is concerned there seems. to have been a good deal of\n\n~~ ~~~~~~~~-\n\n(') American Jurisprudence (2d), Vol. 16, p. 251.\n\n\nKESAVANANDA v. KllALA (Shelat & Grover, JJ.) 257\n\ndebate in Golak Nath's case on the question whether there were any inherent or implied limitations. Dealing wi.th the argument that in exercise of the power of amendment Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of its original instrument for its better effectuation, Subba Rao C. J. observed that there was no necessity to express any opinion on this all important question owing to the view which was being taken with regard IP the meaning of the word \"law\"\n\nin Art. 13(2). But it was recdgni.sed that the argument had considerable force. Wanchno J. (as he then was) considered the question of implied limitations at some length but felt thaa if any implied limitation that basic features of the Constitution cannot be changed or altered, were to be put on the power of amendment, the result would be that every amendment made in the Consitution would inVPlve legal wrangle. On the clear words of Art. 368 it was not possible to infer any implied limitation on the power of amendment. Hidayatullah J~\n\n(later Chief Justice) discussed the question of implied limitations and referred to the spate of writings on the subject. He expressed no opinion on the matter because he felt that in our Constitution Art. 13(2) took in even consitutional amendments. Bachawat J., disposed of the matter by saying that the argument overlooked the dynamic character of the Constitution. Ramaswami J., clearly negatived the argument based on implied limitations on the ground that if the amending power is an adjunct of sovereignty it does not admit of any limitation. ·\n\nThe cases which fall in the second category are decidedly numerous. It has been consistently laid down that there is an implied limita\n\ntion on the legislative power; the legislature cannot delegate the essentials of the legislative function. Mukherjea J. (who later became Chief Justice) in Re. Delhi l.Aws Act 1912 case(') stated in clear language that the right of delegation may be implied in the exercise o£ legislative power only to the extent that .it is neccs.ary to make the exercU!e of the power effective and complete. The same implied litnitation on the legislature, in the field of delegation, has been invoked in Raj Narain Singh v. Patna Administration('); Hari Shankar Bag/a v.\n\nState of Madhya Pradesh('); VasantJal Sanjanwala v. State of Bom bay('); The Municipal .Corporation of Delhi v. Bir/a Cotton Mills(') •nd Grewal D. S. v. State of Punjab('). Implied limitations have also\n\n( 1) (1951) S.C.R. 747 at pp. 98+985.\n\n( 2) [1955) 2 S.C.R. 290.\n\n(') [1955) I S.C.R. 380.\n\n(') [1961) I S.C.R. 341.\n\n(') [1968) 3 S.C.R. 251. (') [1959] Supp. I S.C.R. 792.\n\n258 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nbeen placed upon the legislature which invalidates legislation usurping the judicial power: See for instance Shri Prithvi Cotton Mills Ltd v.\n\nBroach Borough Municipality & Ors.(') and Municipal Corporation of the City of Alimedabad Etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc(').\n\nBefore we go ro cases decided by the courts in other countries ir may be useful to refer to some of the constitutional provisions which are illustrative of the concept of implications that can he raised from the language and context thereof. The first provision in point is Art. 368 itself. It has been seen at the stage of previous discussion that the power to amend is to be found in that Article only by implication as there is no express conferment of that power therein. The learned Solicitor General made a concession that various Articles are included by implication in the clauses of the provision by reason of the necessity for giving effect to the express power contained therein, e.g., Arts. 52 and 53 must be so read as to impliedly include the power to amen!!\n\nArts. 54 and 55 which are not expressly mentioned in clause (a) of the proviso. It has been implied that the President has been made a formal or a constitutional head of the executive and the real executive power vests in the council of ministers and the Cabinet('). Article 53 declares that the executive power of the Union shall be vested in the President; Art. 74 provides for a council of ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. Article 75 says that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by him on the advice of the Prime Minister. The ministers shall hold office during the pleasure of the President and the council of ministers shall be collectively responsible to the House of the People. Although the executive power of the President is apparently expressed in unlimited terms, an implied limitation has been placed on his power on the ground that he is a formal or constitutional head of the executive and that the real executive power vests in the council of ministers. This conclusion which is based on the implications of the Cabinet System of government can be said to constitute an implied limitation on the power of the President and the Governors.\n\nIt may be mentioned in all fairness to the Advocate General of Maharashtra that the court did not desire him to address in detail about the President or the Governor being a constitutional head and the implications arising from the system of Cabinet Government. The decisions thereon are being referred to for the purpose of noticing\n\n( 1 ) (1970) I S.C.R. 388 at pp. 392-393.\n\n( 2) ( 1971) I S.C.R. 288 at pp. 294-297.\n\n\nKESAVANANDA \"· KEllALA (She/at & Grover, JJ.) 259\n\nthat according to them the President or the Governor though vested with full executive powers cannot exercise them personally and it is only the council of ministers which exercises all 11he executive functions. This is so, notwithstanding the absence of any express provisions in the Constitution to that effect.\n\nNext, reference may be made to the decisions of the Privy Council relied on by one side or the other for deciding the question under consideration. The Advocate General of Maharashtra laid much stress on the principle enunciated in Queen v. Burah('), which according to him, has been consistently followed by the Federal Court and this court. The principle is that when a question arises whether the prescribed limits have been exceeded the court must look to the terms of the instrument \"by which affirmatively, the legislative powers were created and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited . . • . . . . . . . . . . . . . . it is not for ariy court of justke to inquire further, or to enlarge constructively those conditions or restrictions\". The ratio of that decision is that conditional legislation is to be distinguished from delegation of legislative power and that conditional legislation is within the power of the legislature in the absence of any express words prohibiting conditional legislation. The oft-quoted words about the affirmative conferment of power and absence of expess restriction on the power are used only ro repel the contention that conditional legislation was barred by 1mplication. It is significant that if Queen v. Burah(') is to be treated as laying down the principle that the powers in a Constjtution must be conferred only in affirmative words the argument of the respondents itself will suffer from d1e infirmity that it is only by necessary implication from the language of Art. 368 (before the 24th Amendment) that the oource of tlie amending power can be said to reside in that Article. There were no such words in express or affirmative terms which conferred such a power. Indeed in Golak Nath's(') case there was a sharp divergence of opinion on this point. Subba Rao C. J. with whom four oilier judges agreed held that die source of the amending power was to be found in the provisions conferring residuary provisions, namely, Art. 248 read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of die . view that the power was to be found in Art. 368 itself.\n\nIn The Initiative and Referend11m Act(') the position briefly was tliat the British North America Act 1867, s. 92, head I, which cm powered a Provincial Legislature to amend the Constitution of die\n\n( 1) (1878) 3 A.C. 889 at pp. 904-5.\n\n( 2 ) (1967) 2 S.C.R. 762.\n\n(') [1919] A.C. 935.\n\n260 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nProvince, \"excepting as regards the odlice of the Lieutenant-Governor: excluded the making of a law which abrogated any power which the Crown possessed through the Lieutenant Governor who directly represented the Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum Act. It compelled llhe Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he was the constitutional head. The Privy Council was of the opinion that under the provisions of that law the Lieutenant Governor was rendered powerless to prevent a prop>sed law when passed in accordance with the Act from becoming actual law. The language of the Act could not be construed otherw.ise than as intended, seriously affecting the position of the Lieu11=nant Governor as an integral part of the legislature and to detract from the rights which were important in the legal theory of that position. Section 92 of the Act of 1867 entrusted the legislative power in a Province to its legislature and that legislature only. A body llhat has power of legislation on the subjects entrusted to it, the pPWer being so ample as that enjoyed by a Provincial legislature in Canada, could while \"preserving its own capacity intact seek the assistance of a subordinate agency . . . . . . . . . . . . . . . . but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes own existence\".(').\n\nThis case is more in point for consideration of validity of that part of the 25th Amendment which inserted Art. 31-C but it illustrat.cs\n\nthat an implied limitation was spelt out from the constitutional provisions of the British North America Act 1867 which oonferred legislative power on the legislatures of provinces as constituted by that Act.\n\nMcCawley v. The King(\"> was another case involving.constitutional questions. The legislature of Queensland (Australia) had power to include in an Act a provision iJ1J1t within the express restrictions contained in the Order in Council of 1959. But inconsistent with the term of the Constitution of Queensland, without first anrending the term in question under the powers of amendments given to it, the Industrial Arbitration Act of 1916 contained provisions authorising the Government in Council to appoint any Judge of tlhe Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland.\n\n( 1) Ibid at p. 945.\n\n(2) (1920) A.C. 691.\n\nKESAVANANDA fl. KERALA (She/at & Grover, JJ.) 261\n\nMter explaining the distinction between a controlled and an uncontrolled Constitution, their Lordships pr'Xeeded to examine the contmtion that the Constitution of Queensland could not be altered merely by enacting legislation inconsistent with its article; it coultl Gily be altered by an Act which in plain and unmistakable language merred to it; asserted the intention of the legislature to alter it, and\n\nconsequentially gave effect to that intention by its operative provisions.\n\nThat argument was repelled by saying(').\n\n\"It was not the policy of the Imperial Legislature at any relevant period t.o shackle or control in the manner suggested, the legislative power of the Nascent Australian Legislations\".\n\nSccilion 5 of the Colonial Laws Validity Act 1865 was held to have clearly conferred on the colonial legislatures a right to establish courts m judicature and to abolish and reconstitute them. A question had been raised that the Constitution AcU of 1867 enacted certain fundamental organic provisions of such a nature as to render the Constitu lion controlled. It was said that if a change of that nacure was contemplated, there would have been some indication in the very lengthy preamble of the Act, d that intention. Their Lordships could observe nowhe1e in the preamble the least indication that it was intended for the first time to make provisions which were sacrosanct, or which at least could only be modified by methods never previously required.\n\nIt was finally held that the legislature of Queensland was the master of. its own household except in so far as its power had in special cases been restricted.\n\nNo such restriction had been established and none in fact existed.\n\nThe Advocate General of Maharashtra has sought to deduce the following propositions from the dissenting judgment of Issacs and Rich JJ of the Australian High Court which was apprµved by the Privy Council in the above case :\n\n(1) Unless there is a spial procedure prescribed for amending any part of the Constitution, the Constitution is uncontrolled and can be amended by the manner laid down for enacting ordinary law and, therefore, a subsequent law inconsistent with the Oanstitution would pro-tanto repeal the Constitu ti on.\n\n(2) A Constit!Ution largely or generally uncontrolled may con\n\ntain one or more provisions which prescribe a different procedure for amending them. In that case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected.\n\n( 1) Ibid p. 706.\n\n262 SVPIU!Ml! COVB.T UPOB.TS [ 1973] Supp. s.c.a.\n\n(3) The implication on limitation oi power ought not to be im\n\nported from general concepts but only from express or necessarily implied limitations (emphasis supplied).\n\n( 4) While granting powers to the colonial legislatures, the British Parliament as far back as 1865 refused to put limitations of vague character, but limited those limitations to objective standard!. e.g., statutes, statutory regulations, etc. to objectiw: standards.\n\nWe have already repel!led at an earlier stage(') the contention that the only distin.:tion between a controlled and an uncontrolled Con,. stitution is that in the former the procedure prescribed for amending any part of the Constitution has to be strictly followed. The second proposition is of a similar nature and can hardly be disputed. As re gards the third and fourth proposition all that need be said is that im plied limitation which was sought in McCawley's case by counsel for the respondents was that the Queensland legislature should first amend the Constitution and then pass an Act which would otherwise have been inconsistent, for the Constitution had not been amended. That con,. tention in terms was rejected. The Constitution in M cC awley' s case was uncontrolled and therefore the Queensland legislature was fulley empowered to enact any Constitution breaking law. Moreover Lord Birkenhead in an illuminating passage in McCawley's(2) case has himself referred to the difference of v'icw among writers upon the subject of constitutional law which may be traced \"mainly to the spirit and genius of the nation in which a particular Constitution has its birth\".\n\nSome communities have \"shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation w_hich\n\nwiII be, or may be, wanting to their successors\". Those who have adopted the other view probably believed that \"certainty and stability were in such a matter the supreme desiderata\". It was pointed out that different terms had been employed by the text book writers to distinguish between those who contrasted forms of Constitution. It was added:\n\n\"Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other. an uncontrolled Constitution as PY any other nomenclature\".\n\nLord Birkenhead did not make any attempt to define the two terms \"controlled\" and \"uncontrolled\" as precise legal terms, but mere ly used them as convenient expressions.\n\n( 1 ) Pp. 70-71.\n\n( 2) [1920] A.C. 691 at pp. 703-704.\n\nKESAVANANDA 11. KEllALA (Shelat & Grover, JJ.) 263\n\nThe next case of importance is Attilrney General for New South Wales v. Tretfiowan.( 1) The Constitution Act, 1902 enacted by the legi&. lature of New South Wales, was amended in 1929 by adding s. 7-A which provided that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by a majority of the electors voting upon a submission made in accordance with the section. The same provision was to apply to a Bill for repealing that section. In 1930 two Bills were passed by the Legislature. One was to repeal s. 7-A and the other to abolish the Legislative Council. Neither of the two Bills had been approved in accordance with s. 7-A. Reference was made to s. 5 of the Colonial Laws Validity Act 1865, which conferred on the Legislature of the State full power ro make laws inter alia in respect of the Constitution in such \"rnanner,'and form\" as might from time to time be provided by any Act of Parliament Letters Patent, Colonial law in force in the colony etc. It was held that the whole of s. 7-A was within the competence of the legislature of the State under s. 5 of the Colonial Laws Validity Act. The provision that the Bills must be approved by\n\nthe electors before being presented was a provision as to form and 'manner and accordingly the Bills could not lawfully be presented unless and until they had been approved by a majority of the electon voting. A number of contentions were raised, out of which the following may be noted :\n\n(a) The Legislature of New South Wales was given by the Imperial Statutes plenary power to alter the Constitution, powers and procedure of such Legislature.\n\n(b) When once the Legislature had altered either the Constitution or powers and procedure, the Constitution and powers and procedure as they previously existed ceased to exist and were replaced by the new Constitution and powers.\n\nAccording to their lordships the answer depended entirely upon a consideration of the meaning of s. 5 of the Colonial Laws Validity Act read with s. 4 of the Constit'Ution statute assuming that the latter section still possessed some operative effect. The whole of s. 7-A was held to be competently enacted. The Privy Council, however, held that the repealing Bill after its passage through both Chambers could not be lawfully presented for the Royal assent without having first received . the approval of the electors in the prescribed manner. In order to be validly passed, the law must be passed in the manner prescribed by\n\n$. 7-A which was in force for the time being. Trethowan's case (supra) fully illustrates how the Privy Council enforced such limitations even\n\n( 1) (1932) A.C. 526.\n\n264 SUPREME COURT REPORTS [ 1973 j Supp. S.C.P..\n\nthough they were of a procedural nature which had been provided in a constitutional statute relating to the form and manner in which any such statute could be altered or repealed.\n\nThese decisions, in particular, (Trcthowan's case) illustrate that the Privy Council has recognised a restriction on the legislative powers of a sovereign legislature even though that is confined only to the form and manner laid down. in a Constitution for amending the Constitution Act. In a country which still sticks 'to the theory of Parliamentary 10Vereignty, limitations of any other nature would be regarded as somewhat non-conformist and unorthodox.\n\nThe decision of the Privy Council in the Bribery Commissioner v.\n\nPedrick Ranasinghe(') has been heavily relied on by both sides. On behalf of the petitioners support has been sought from the observations relating to rights regarded as fundamental, being unalterable. What hai happened there was that by virtue of s. 41 of the Bribery Amendment Act 1956, a provision was made for the appointment of a Bribery Tribunal which was in conflict with the requirement in s. 55 of the Ceylon C'.onstitution (Order in Council 1946), hereinafter called the 'Ceylon Constitution Act', according to which the appointment of Judicial Officer~ was vested in the Judicial Scrvice Commission. Section 29 of the Ceylon Constitution Act provided by suh-s. (1) that subject to the provisions of the Order, the Parliament had the power to make laws for the peace, order and good government of the island. By suh-s. (2) it was provided that no such law shall (a) prescribe or restrict the free\n\nexerci'se of any religion etc. This was followed by clauses (b), (c) and\n\n(d) which set out further religious and racial matters, which accQrding l'o their Lordships, could not be the subject of legislation. In the words of their Lordships \"they represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution\". By suh-s. (3) any law made in contravention of sub-s: (2) was to be void to the extent of such contravention. Suhscction ( 4) may be reproduced below :-\n\n\" ( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island :\n\nProvided that no Bill for the amendment or repeal of aay of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the\n\nSpeker that the number of votes cast in favour thereof in the\n\n( 1) [1965] A.C. 172.\n\nKESAVANANDA ti. KEllALA (She/at & Grover, JJ.) 265\n\nHouse of Reprcntatives amounted to not less than tw<>-thirds fl. the whole number of Members of the House (including those not present).\n\nEvery certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law\".\n\nThe Bribery Amendment Act 1958 had not been enacted in accordance with the provisions contained in suh-.section ( 4) of s. 29 of the Ceylon Constitution Act. As it involved a conflict with the Constitution, it was observed that a certificate of the Speaker as required by sub-section ( 4) was a necessary part of tihe Act ma.king process. The\n\n1 point which engaged the serious attention of the Privy Council was that when a sovereign Parliament had purported to enact a Bill and it had ·\n\nreceived the Royal, Assent, could it be a valid Act in course of whose passing there was a procedural defect, or was it an invalid Act which Parliament had no power to paS5 in that manner ? A distinction was\n\nmade while examining the appellant's arguments between s. 29(3) 'which expressly made void any Act passed in respect of the matters\n\nentrenched in and prohibited by s. 29(2); whereas s. 29( 4) made no such provisions, but merely couched the prohibition in procedural terms. Reliance had been place on behalf of the appellant Bribery Commissioner on the decision in McCawley's case. It was pointed out that Mccawley'! case, so far as it was material, was in fact opposed to the appellant's reasoning. It was distinguished on the ground that the Ceylon legislature had purported to pass a law which being in conflict with s. 55 of the Ceylon Constitution Act, must be treated, if it was to be valid, as an implied alteration of the constitutional provisions about the appointment of judicial officers. It was held that such alterations, even if expressed, could only be made by laws which complied with the special legislative procedure laid down ins. 29(4). The Ceylon Legislature did not have the general power to legislate so as to amend its Constitution by ordinary majority resolutions such as the Queensland Legislature was found to have under s. 2 of its Constitution Act\n\nThe learned Advocate General of Maharashtra has referred to tht. arguments in Ranasinghe' s case and has endeavoured to explain the olj>servations made about the entrenched provisions being unalterable by saying that the same were obiter. According to him it was not tht respondent's case that any provision was unamendable. The referen~ to the solemn compact etc. were also obiter because the appeal did nO! raise any question about the rights of religion protected by sub-s. (2) of • s. 29 and the issues were entirely different. It is claimed that this decision supports the position taken up on behalf of the respondents that it is rmly the form and manner which is material in a controlled Constitution and that the above decisi:Qn is an authority for the proposition that\n\n266 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nin exercise of the amending power a con.trolled Constitution can be converted into an uncontrolled one. Any implied limitations on Parliament's amending power here can be abrogated by an amendment of Art. 368 itself and the amending power can be enlarged by an exercise of that very power. According to Mr. Palkhivala this argument is wholly fallaeiotts. Firstly, the observations of the Privy Council(') is merely on the form and manner of amendment and has nothing to do with suhstantive limitations on the power of amendment. Placing limits on the amending power cannot be confused with questions of special legislative process which is also referred to by their Lordships.(') Secondly, the Ceylon Constitution authorised the Parliament to amend or repeal the Constitution, which power is far wider than the power of amendment sim pliciter conferred by Art. 368. It is suggested that Ranasinghe's case is a direct authority against the respondent1 since it held the religious and racial rights to be unalterable, which clearly implies that Parliament had no competence to take away those rights even in exereise of its power to amend the Constitution by following the prescribed form and manner in sub-s. ( 4) of s. 29 of the Ceylon Constitution Act. The material importance of this case is that even though observations were made by the Lordships which may in a sense be obiter those were based on necessary implications arising from section 29 of the Ceylon Constitution Act and were made with reference to interpretation of constitutional provisions which had a good deal of similarity (even on the admission of the Advocate General of Mahara· shtra) with some parts of our Constitution, particularly those which relate to fundamental rights.\n\nDon John Francis Douglas liyange v. The Queen(3 ) is another decision on which strong reliance has been placed on behalf of the petitioners. The Ceylon Parliament passed an Act which substantiallv modified the Criminal Procedure Code inter alia by purporting to legalise an ex-post facto detention for 60 days of any person suspected of having committed an offence against the State. This class of offences for which trial without a jury by three Judges nominated by the Minister for Justice could be ordered was widened and arrest without a warrant for waging war against the Queen could be effected. New minimum penalties for that offence were provided. The Privy Couneil held that the impugned legislation involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive control and\n\n( 1) lbid p. 198.\n\n( 2 ) Ibid portions D to &\n\n(•) [1967] 1 A.C. 259.\n\nKESAVANANDA \"· KERALA (She/at & Grover, JJ.) 267\n\nin effect left untouched the judicial system established by the Charter of Justice of 1833. The legislation was struck down as void. Their Lordships observed inter alia that powers in case of countries with\n\n'lritten Constitutions must be exercised in accordance with the terms\n\nci. the Constitution from which they were derived. Reference was made to the provisions in the Constitution for appointment of Judges by the Jwdicial Service Commis.si.on and it was pointed out that these provisions manifested an intention to secure in the judiciary a freedom from political, legislative and executive control. It was said that these provisions were wholly appropriate in a Constitution which intended that judici•l power shall vest only in the judicature. And they would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.\n\nThere seems to be a good deal of substance in the submission of Mr. Palkhivala that the above decision is based on the principle of implied limitations; because otherwise under section 29(1) of the Ceylon\n\nConstitution Act Parliament was competent to make laws for the peace, order and good government of the island subject to the provisions of the Order. Strong observations were made on the true nature and purpose of the impugned enactments and it was said that the alterations made by them in the functions of the judiciary constituted a grave and\n\ndeliberate incursion in the judicial sphere. The following passage is noteworthy and enlightening :\n\n\"If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature has no such gene- ral intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one mmt presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution.\"\n\nMohamed Samsudden Kariapper v. S.S. Wiiesinha and Anr.(') has been cited on behalf of the S!:tte of Kerala for the proposition that judicial power could, by an amendment of our constitution, be transferred to the legislature thus negativing the principle of implied limitation. In that case a report had been made under the Commission of Inquiry Act. abou~ certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under a cert:aln Act civil disabilities on persons to whom the Act\n\n(1) [1968) Appeal Cue. 717.\n\n268 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\napplied were imposed. It also contained a provision that in the eYcnt of inconsistency with existing law, the Act should prevaiL The appellant challenged the validity of that Act on the ground that it was inconsistent with the Constitution and was usurpation of the judicial power. It may be mentioned that the Speaker had, in accordance will the proviso to s. 29( 4) of the Constitution of Ceylon, endorsed a cer:tificate under his hand on the bill for imposition of civic disabilities (Special Provisions) Act. The Privy Council held that the said was an exercise of legislati.ve power and not the usurpation of judicial power. The Constitution of Ceylon was a controlled constitution and the Act was an inconsistent law; the Act was to be regarded as amending the constitution unless some provisions. denying the Act constitutional effect was to be found in the constitutional restrictions imposed on the power of amendment. Apart from the proviso to s. 29(4) of the Consti.tution Act, there was no reason for not construing the words \"amend or repeal\" in that provision as extending to amendment or repeal by inconsistent law. The Act, therefore, amended the constitution.\n\nFinally upon the merits it was observed that in view of the conclusion that the Act was a law and not an exercise of judicial power it was not necessary to consider the question whether Parliament could, by a law passed in accordance with the proviso to s. 29( 4), both assume judicial power and exercise it in the one law.\n\nThe above decision can certainly be invoked as an authority for the proposition that even in a controlled constitution where the form and manner had been followed of amending it, an Act, which would be inconsistent with it and which did not in express terms state that it was an amending Act, would have the effect of altering the constitution.\n\nBut it does not suppon any suggestion, as has been made on behalf ci the respondents, that judicial power could, by an amendment of our constitution, be transferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon Constitution empowered the Parliame, nt \"to amend or repeal\" the constitution and, therefore, t)lcrc can be no comparison between the scope of the Ceylon Parliament's amending power and that of the amending body under article 368.\n\nWe may next deal with the Australian decisions, because there ms been a good deal of discussion in them about implied limitations which can arise in the absence of express limitations. The subject matter cl most of the decisions has been the Commonwealth's taxing power. Section 51 of the Australian Constitution grants power to legislate with regard to taxation to the Commonwealth in wide terms but with certain express reservations, viz., that duties of customs should be unifomi.\n\nthat the taxing laws must not discriminate between States, nor must revenue laws give preference to one State over. another State. Section lH\n\nKESAVANANDA v. KERALA (She/at & Grovi:r, JJ.) 269\n\nbars the Commonwealth from taxing property of any kind belonging to a State. In Amalgamttted Society of Engineers v. Adelaide Steamship Co. Ltd.(1) the High Court of Australia accepted the principles of construction of a constitution laid down by the Privy Cowicil in Reg v.\n\nBurah(') and Att. Gen. of Ontario v. Att. Gen. of Canada(8 ) viz., that\n\nthe onl\\y way in which a court can determine whether the prescribed limits of legislative power had been exceeded or not was \"by looking to the terms of the instrument by which affirmatively, the legislative powers are created, and by which negatively, they are restricted\"; nothing was to be read into it on ground of poticy of necessity arising or supposed to arise from the nature of the federal form of government nor were speculations as to the. motives of the legislature to be entered into by the Court. These words would appa.:ently appear to reject any proposition as to implied limitations in the constitution against an exercise of power once it is ascertained in accordance with the ordinary rules of construction. Such an interpretation of the Engineers' case(') supposed to have buried for ever the principle of implied limitations, has not been unanimously accepted nor has the above criterion laid down been adhered to. In Att. Gen. of New South Wales v. Brewery Employees Union('), Higgins, J. cautioned that \"although the words of the constitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act-\"to remember that it is a constitution, a mechanism wider which laws are to be made, and not a mere Act which declares whav the law is to be\".\n\nSir Owen Dixon in Australian Railways Union v. Victorian Railway Commissioni:rs( 6 ) and later in West v. Commissioner of Taxation(') formulated what in his view was the basic principle laid down in Engineers' case (Supra) and made observations relating to reservations of qualifications, which he thought had been made, concerning the prima\n\nfacie rule of interpretation which that decision laid down. In Ex-parte Professional Engineers Association(\") he once again adverted to the Engineers' case and suggested that perhaps \"the reservations and qualifications therein expressed concerning the federal power of taxation and laws dircted specially to the states and also perhaps the prerogative of the Crown received too little attention.\" The question as to implied\n\n( 1) [1920) 28 C.L.R. 129.\n\n( 2) [1878) 3 A.C. 889.\n\n(•) [1912] A.C. 571.\n\n(') [ 1920] 28 C.L.R. 129. (\") [1908] 6 C.L.R. 469 at pp. 611-612.\n\n(') [1930] :44 C.L.R. 319, 390.\n\n( 7) [1937) 56 C.L.R. 657, 682.\n\n(•) [1959) 107 C.L.R. 208, 239. 18-36 S.C. India/73\n\n2 70 SUPUMI! COUltT llPORTS [ 1973] Supp. S.C.R.\n\nlimimtions was directly raised and decided in the Melbourne Corporation v. Commrmwealth.(1) It was held that s. 48 of the Banking Act, 1945, prohibiting banks from conducting banking business for a state and for any authority of the state, including a local government authority was 'invalid. Two contentions were raised in that case: (1) that the impugned Act was not a law on banking wiithin s. 51(xiiii) because it was llQt a law with respect to banking, and (2) that the grant of power in s. 51(xiii) must be read subject to limitations in favour of the State because it appears in a federal constitution, so that even if s. 48 could be treated as a .law with respect to banking, it was still invalid since its operation interfered with the states in the exercise of their governmental functions. The second contention was accepted by the majority.\n\nLatham C. J. stated that laws which discriminated against states or which unduly interfered with states in the exercise of their functions of government were not laws authorised by the constitution, even if they were laws with respect to a subject matter within the legislative power of the Commonwealth Parliament. Rich J., held that the constitution expressly provided for the continued existence of the States and that, therefore, any action on the pan of the Commonwealth, in purported exercise of its constitutional powers, which would prevent a State from continuing to exist or function as such was necessarily invalid because of inconsistency with the express prowsions of the Constitution.\n\nStark, J. said that the federal character of the Australian constitution carried implications of its own, that the government was a dual system based upon a separation of organs and of powers and, consequently, maintenance of the States and their powers was as much the object of the constitution as _maintenance of the Commonwealth and its powers.\n\nTherefore, it was beyond the power of either to abolish or destroy the other.\n\nThe same contention was raised in a recent case of Victoria v. The Commonwealth('), where the Pay-roll Tax Act, 1941 and the Pay-roll Tax Assessment Act, 1941-1969 were impugned. These Acts were passed by the Commonwealth Parliament for financing the provisions of the Child Endowment Act, 1941 and casting the burden on employers bv taxing wages paid by them. The Crown in right of a State wa• in each State a considerable employer of labour, and in some States of ind us trial labour. The Crown in right of a State was included in the definition of 'employer' for the purpose of the Act. The question raised for decision was about the constitutional validity of the Act in so far as it • purported to impose upon the State of Victoria an obligation ; o payroll tax rated to the amount of salaries and wage.- paid to its public serl'ants employed in certain department named in its statement of cl•im.\n\n(') [1947] 74 C.L.R. 31.\n\n( 2) [1971] 45 A.L.J. 251.\n\nDSAVANANDA 11. IWlALA (Shelat & Grover .. JJ.) 271\n\nThe contention raised by the State of Victoria as summarised by Barwi'ck, C.J. was that though the impugned Act fell under the enumerated power of taxation in s. 51 of the Constitution Act, that section did not authorise the imposition of a tax upon the Crown in the right of a\n\nState because there was an implied constitutional limitation upon that Commonwealth power operating universally, that is to say, as to all the activities of a State. The point most pressed, however, was in a somewhat limited form, viz., that the legislative power with respect to taxation did not extend to authorise the imposition of a tax upon \"any\n\n=ntial governmental activity\" of a State and therefore, at the least, the power under s. 51 did not authorise a tax upon the State in respect of wages paid to its civil servants. In other words such a limitation, whether of universal or of Ii.mired operation, was derived by implication from the federal nature of the constitution, and therefore, to levy a tax rated to the wages paid to its servants employed in departments of governments, so trenched upon the governmental functions of the State as to burden, impair and threaten the independent exercise of\n\nthose functions. All the seven judges agreed, firstly, that the Act was valid, and secondly, upon the proposition laid down in the Engineers' case (Supra) as also in certain otht:r decisions that where a power was granted to the Commonwealth by a specific provision such ass. Sl(ii), the Commonwealth could pass a law which would bind the States as it would bind individuals. The difference amongst the judges, however, arose as regards the question of implied limitation on such a power, however, expressly granted. Barwick C.J. and Owen J. were of the view that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power but there is no implied limita•tion on a Commonwealth legislative power under the constitution arising from its federal nature. McTiernan J. was also of the view that there was no necessary implication restraining the Commonwealth from making the law. However, Menzies, Windever, Walsh and Gibbs JJ. held in categorial terms that there is an implied limitation on Commonwealth legislative power under the Constitution on account of its federal nature. According to Menzies J. a constitution providing for indissoluble federal Commonwealth must protect both Commonwealth and State& The States were not outside the ConstitutiOn. Accordingly although the Constitution clearly enough subjected the States to laws made bv Commonwealth Parliament it did so wi:h some limitation. Windeyer J., read the Melbo11rne Corporation case (Supra) as confirming the principle of implication and added that the eourt in reading the Constitution \"must not shy away from the word 'implication' and disavow every concept that it connotes.\" Walsh T. rejected the contention that it was inconsistent with the principles of construction laid down in Engineers' case that the ambit of power with respect to enumerated subject matter should be restricted in any w•y\n\n2 72 SUPREME COURT REPOJ!.Ts [ 1973} Supp. s; c.11.\n\notherwise than by an express provision specially imposing some defined limitati?n upon it and ob,, erved :\n\n\"there is a substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its legislation\".\n\nAccording to Gibbs J., the ordinary principles of tatutory interpretation did not preclude the making of implications when they were necessary to give effect to the intentiop. of the legislature as revealed in the statute as a whole. The intention of the Imperial Parliament in enacting the Constitution was to give effect tQ the wishes of the Australian people to join in a federal union and to establish a federal and not a unitary syem. In some respects the Commonwealth was placed in a position of supremacy as the nation~! interest required but it would be inconsistent with the very basis of federation that the Commonwealth's power should extend to reducing the states to such a positron of subordination that their very existence as independent units would be dependent upon the manner in which the Commonwealth exercises its powers, rather than on the legal limits of the powers themselves.\n\nHe proceeded to say :-\n\n'Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect,· necessarify give rise to, implications as to the manner in which the Commonwealth and the States respectively may exercise tbeir powers, vis-a-vis each other\".\n\nThe Advocate General of Maharashtra does not dispute that there are necessary implications in a federal constitution such as, for example, that any law violating any provision of the Constitution is voitl everi in the absence of an express declaration to that effect. Aga.in it is a neces- sary implication of a republican constitution that the sovereign of a foreign State-United Kingdom cannot place Indian territory in groups by Orders in Council a.s provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent with the. Republican Constitution of India, and is not continued in force by Art.' 372; see State of Madras\n\nv. G. C. Menon('). But he maintains that the principle of Queen v.\n\nBurah is not in any way displaced. Burah's case, according to him, laid down principles of interpretation and in doing so the Privy Council itself enunciated the doctrine of ultra vires which is a nece5sary implication of an Act of the British Parliament creating bodks or authorities with limited powers. An attempt has been made to show that the judgment of Chief Justice Barwick in the above Australian decision stated the\n\n( 1)\n\n( 1955] I S.C.R. 280.\n\nKESAVANANDA 11: KERALA (She/at & Graver, JJ.) 273\n\nbasic principle of construction correctly and those principles are appli. cable to our constitution also since the decision was based on Queen\n\nv. Burah(1 ) which has been consistently followed by tihis Court. We have already dealt with that decision and we arc unablo to agree that Queen v. Burah stands in the way of drawing implications where the purpose of the constitution and the scheme by which it is intended to be given effect, necessarily give rise to certain implications.\n\nTurning to the Canadian decisions we need refer only to those which have a material bearing on the questions before us. In T lie Attorney General af Nova Scotia v. The Att. Gen. of Canada(°) the constitutionality of an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa was canvassed. The Supreme Court of Canada held that since it contemplated delegation by Parliament of powers exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under s. 92 of the Act to Parliament, it could not be constitutionally valid. The principal ground on which the decision was based was that the Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under s. 91 or s. 92 as the case may be. Neither is capable, therefore, of delegating to the other the powers with which it has been vested nor of receiving from the other the power with which the other has been vested. The learned Chief Justice observed that the constitution of Canada \"does not belong either to the Parliament or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitl ed.\"\n\nAlthough nothing was expressly mentioned either in s. 91 or s. 92 of the British North America Act a limitation was implied on the power of Parliament and the Provincial Legislatures to delegate legislative power. Mention may also made of fohn Switzman v. Freda Elbling(3 ) (to which we have already referred while dealing with the question of the use of the preamble.)· In that case the validity of the Act respecting communistic propaganda of the Province of Quebec was held to be ultra vires of the Provincial LegiSlaturc. Abbot J., after referring to various decisions of the Privy Council as also the Supreme Omrt of Canada(') said that the Canada Election Act, the provisions of\n\n( 1) [1878] 3 A.C. 889.\n\n( 1) [1951] Can. L. Rep. 31.\n\n ( 8) (1957) Can. L R. (Supreme Court) 285 at p. 327. (') See in particular the observation of Duff C.J. in Alberta Statutes Case {1938) SCR (Canada) 100 at pages 132-133.\n\n274 SUPREME COUllT REPORTS [1973) Supp. S.c.L\n\nthe British North A1ncrica Act which provtidCd for Parliament meeting at least once a year and for the election of a new Parliament :it least every five years and the .Senate and House of Commons Act, were cxa mples of enactments which made specific statutory provisions for ensur\n\ning the exercise of the right of public debate and public discussion. \"Implicit in all such legislation is the right-of candidates for Parliament. or for a Legislature and of citizens generally, to explain, to criticize, debate and discuss in the freest possible manner such matters JS the qualifications, the policies, and the political, economic and social principles advocated by such candidates or by the political parties or groups of which they may be member\". That right could not be abrogated by a Provincial Legislature and its power was limited to what might be necessary to protect purely private rights. He was further of the opinion that according to the Canadian Constitution, as it stood, Parliament itself could not abrogate this right of discus.sion and debate.\n\nThe Advocate General of Mahariishtra has pointed out that thett decisions relate to the legislative competence of provicial legislatures to effect civil liberties like freedom of speech, religion or to legislate in respect of criminal. matters. They arc not relevant for the purpose of determining the amending power under the Constitution. So far as the civil rights are concerned in Canada it is noteworthy, according to the Advocate General, that the Canadian Bill of Rights 1960 makes the rights therein defeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Canadian Bill of Rights. It has also been submitted that the well known writers of constitutional law both of Australia and Canada have not attached any signficancc or accepted the principle of implied limitations.(') The opinions of authors and writers have been cited before us so extensively, by both sides, that we find a great deal of conflict in their expression of opinion and it will not be safe to place any reliance on them. The judges who have read limitations by implication are well known and of recognised eminence and it is not fair to reject their views for the reasons suggested by the Advocate General.\n\nWe need hardly deal at lengllh with . the Irish decisions.\n\nThe principle emerging from the majority decision in The Stm (Ill the prosecution of /ermiah Ryan v. Captain Michael Lenons & Others(')\n\nthat under s. 50 of the 1922 constitution (which provided for constitutional amendment by ordinary legislation during the first period of 8 years which was subsequently extended to 16 years) an Ordinary la'ir inconsistent with the provisions of the constitutj.on. had the clfec:r. of amendment of the constitution, caused considerable .debate. Di!rin1, die\n\n( 1) See W. A. Wynes, Legislative, Excaitivc ind' Judicial powers in Australia and Bor1 Laskin, The Canadian Constitutioaal Law; '\n\n( 1) (1935) frish Reports 170.\n\nJtESAVANANDA \"· Kl!RALA (Shelat & Grover, JJ.) 275\n\ncontroversy it was strongly urged that the power of constitlltional amendment was not identical with pouvoir const.itutent; that it was not within the competence of agencies invested with the power of constitutional amendment to drastically revise the structural organisation of a State, to change a monarchlcal into a republican and a representative into a direct form of government. The argument was based on the conception underlying Art. 2 of the French Law of 1884 which provided that the republican form of government could. not be made subject of constitutional amendment. Section 50 of that constitution, in partic cular, was criticized as being too pliant for the first period of 8 years and too rigid for the period following it.(') After the 1937 constitution which became a model for our constitution makers the trend of judicial thinking underwent a transformation and instead of treating an Act inconsistent with the constitution as having the effect of impliedly amending the constitution such an Act was regar.ded as invalid to the extent of its inconsistency with the constitution. See Ed rnund Burke v. Lenon(') and Margaret Buckley v. Att. Gen. of Eire('). The 1922 Constitution was considered to be of such \"light weight\" that there were no fewer than 27 Acts expressed to be Acts impliedly amending that Constitution(') within a period of 15 years. During the period 1922-27 the judges were used to the British idea of sovereignty of Parliament and notions of fundamental: law were foreign to their training and tradition. The 1937 Constitution is more rigid than its predecessor though Article 51 permits the Oireachtas to amend the Constitution during the first three years by ordinary legislation. Such legislation, however, is expressly excepted unlike Art. 50 of the 1922 Constitution from the amending power. Mention may be made of The State v. The Min; ster for fustice etc.(') in which it was held that rhe provisions of s. 13 of the Lunatic Asylums (Ireland) Act 1875 which prevented an accused person from appearing before the District Court on the return date of his remand constituted interference with an exercise of judicial power to admini.-ter justice. This case and similar ca5es e.g., Margaret Buckley v. Att. Gen. of Eire(') may not afford much assistance in determining the question about implied limitation to the amending power in a constitution because they deal with the question mostly of repugnancy of ordinary legislation to constitutional provisions. The main decision however, was 'in Ryan's(') case in which Kennedy C.J. drew\n\n( 1) Leo Kohn, The Constitution of the Irish Free State pp. 257-259.\n\n( 2) (1940) Ir. Reports 136. (') (1950) Ir. Reports 67, (') Sec cnerally J. M. Kelly, Fundamental Rights on the Irish Law and Constitution (1968) I-17. (') [1967] Ir. Rep. 106. (\") [1950] Ir. Rep. 67.\n\n( 7) [1935] Ir. Rep. 170.\n\n276 SUPREME COURT REPORTS fJ973] Supp. S.C.R.\n\nvari<;>us implications from the Constitution but the majority of judges declined to do so and read the word \"amendment\" as wide enough to allow the repeal of a number of articles, however important in substance they might be.\n\nIt is equally unnecessary to deal with the argument on behalf of the respondents that the Privy Council in Moore v. Attorney General of\n\nIrish Free State(') rejected the contention of the counsel based on the reasoning of Kennedy C.J. Moore's case was decided principally on tbe effect of the passing of the statute of Westminster as is clear from the summing up of the position by their Lordships. (2)\n\nAs regards the position in the United States of America a great deal of reliance has been placed on behalf of the respondents on United States of America v. William H. Sprague.(') According to that decision the choice between submission of a proposed amendment to the federal Constitution to State Legislatures and submission to State Conventions under Article 5 of the Constitution was in the sole discretion of Congress irrespective of whether the amendment was one dealing with the machinery of government or with matters affecting the liberty of the citizen. It was argued that amendments may be of different kinds, e.g., mere changes in the character of federal means of machinery on the one hand, and matters affecting the liberty of the citizen, on the other.\n\nIt was said that the framers of the Constitution accepted the former sort t:O be ratified by the legislature whereas they intended that the latter must be 1 cf erred to the people because not only of lack of power in the legislature to ratify but also because of doubt as to their truly representing the people. The Court observed that where the intention was clear there was no room for construction and no excuse for interpolation or addition and it had been repeatedly and consistently declared in earlier decisions that the choice of mode rested solely in the discretion of the Congress. It is sought to be concluded from this decision that the Supreme Court of the United States refused to read ny implications of the nature argued in that case.\n\nMr. Palkhivala says that the decision in U. S. v. W. H. Spragr1e (Supra) has no relevance to the questions before us. All that it laid down was that the Congress had the sole discretion to decide whether a proposed amendment should be submitted to State Legislatures or to the State conventions. The language of Article 5 itself shows that\n\nsole discretion in th.is matter is conferred on the Congress irrespective of whether the amendment deals with the machinery of government or with matters affecting the rights and liberties of the citizen. Sprague's\n\n( 1) [1935] A.C. 484. ( 2) !hid p. 498.\n\n( 1) 75 L. Ed. 640.\n\nXESAVANANDA v. XIMLA (She/at 6' Grover, JJ.) 277\n\ncase it is suggested, wns merely a fresh attempt after the decision of the Supreme Court in the State of Rhode Island v. A. Mitchell Palmer(1) to argue that the 18th amendment which introduced prohibition was un constitutional since it was ratified by the State Legislatures and the attempt rightly faitlcd. For the reasons suggested by Mr. Palkhivala, which appear to have a iOod deal of substance we are unable: to derive any help from U.S. v W. H. S/lf'lli\"'\n\nThe Advocate General of Maharashtra has invoked another prin ciple to the effect that unlc.!$ the power of amendment is co-extensive with the judicial power of invalidating laws made under the Constitll tion the judiciary would be supreme; therefore, the power of amendment should be ctensive with judicial power. This follows from what has been repeatedly held by this Court that under our Constin1tion none of the three great departments of the State is supreme and it is only the Constitution which is supreme and which provides for a government of laws and not of men. The reply of Mr. Palkhivala is that if the constitution is supreme, as it i.!, it necessarily follows that there must be limitation on the amending power because if there arc 'no limitations the legislature would be supreme and not the Constitu 1 tion. If the legislature's power of amending Constitution were coextensive with the judicial power of invalidating laws made under the Constitution, the legislature can bend the Constitution to its wheel in every way which will lead to a result contrary .to what has been provid'.\n\ned in the Constitution, namely, that there are three great departments of the State and no one can have supremacy over the other. When the. judiciary places a limitation on the amending powers, says, Mr. Palkhivala, only as a matter of true construction the consequence is nt that the judiciary is supreme but that the Constitution is supreme. It is claimed that on his arguments, the legislature,. executive and judiciary remain coordinate which is the correct position under the Constitution.\n\nIf the respondent's argument is accepted the amending power is abso-. lute and limitless. It can make the judiciary and the executive completely subordinate to it or take over their powers.\n\nWe are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the iudicial process; (per Bose j., in Bidi Supply Co. v. The Union of India()). The observations\n\nof Patanjali Sastri C.j. in State of Madras v. V. G. Row(') which ha, e\n\nbecome locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts \"not out of any desire to tilt at\n\n( 1) 6-4 L. Ed. 9-46.\n\n(2) [1956] S.C.R. 267.\n\n(') [19; I] S.C.R. 597.\n\n278 SUPllMI! OOUKT REPOl.TS [1973} Supp. S.C.J..\n\ntive. authority in a crusador' s spirit, but in discharge of a duty pbinly laid upon them by the Constitution.\" The respondents have a!M> contended that to let the court have judicial review over const:itu- amendments would mean involving the court in political questlions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales(') :-\n\n'The problem to be solved will often be not so much legal as political, social or economic, ycc it muse be solved by a court of law.\n\nFor where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament.\"\n\nThere is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United Constitution but it envisages such a separation to a degree as was found in Ranatinghe's case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Cotution (per Haldane, L.C. in Att.\n\nGen. for the Commonwealth of Australia v Colonial Sugar Refining Co.(\") and Ex parte Walsh & fohnson, In re Yates.(\") The functlop of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question ci interpretation of the Constitution. It may be added that at no suage the respondents have contested the proposition that the validity of a constitutional amendment can be the subjece of review by thia Court. The Advocate General of Maharasthra has. characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provmons relating to the appoi!ntment of judges, the specific. restrictim, i, to hieh the fundamental rights are made subject, the dehberate exclUSion of the due process clause in Art. 21 and the affinnataon in Article 141 that\n\n(1) [1950] A.C. 235 at 310.\n\n(') [1914] A.C. 237. (•) (1925) 37 C.L.R. 36 at p. 58.\n\n• >\n\nJtl!SAVANANllA fl. ltEllALA (S/i4/at & Grotltr, JJ.) 279/\n\niudles ckclare but not.make law. To this may be added the none two' rigid amendatory process which authorises amendment by means of'\n\n2/3 majority and the ; dditional requirement of ratification. ':\n\nAccording to the learned Attorney General the entire argument on the basis of implied limitation,9 is fundamentally wrong. He has also relied greatly on the deciSion.in Burah's case and other similar decisions. It is pointed out that there can be no inherent limitation on the power of amendment having regard to the purpose for which the power is needed. The argument! about the non-amendability of the\n\nessential frapJ.cwork of the Constitution is illusive because every part of a Constitutional document admits of the possi\\>ility of imperfect drafting or ambiguity. Even basic concepts or ideals undergo progressive changes. It has been strenuously urged that the constitution read . as a whole did not contemplate the perpetuation of •the ting social and economic inequalities and a duty has been c~ on the State to organise a new social order. The Attorney General quoted the opinion of. cral. writers .and authors in support of his contention that there\n\nmust be express words of limitation in a provision which provides for amendment of the Constitution from w.hich it follows tht no implied !imitations can be read therein.\n\nTho correct approach to the question of limitations which may be . implied in any lcgi5lative provisions including a Constitutional document has to be made from the point of view of interpret!aon. It is not a nove1 theory or a doctrine which has to be treated as an innovation of th06C who evolve heterodox methods to substantiate their own thesis.\n\nThe argument that there are no implied limitations because there arc ilo express limitations is a contradiction in terms. Implied limitations can only arise where there are no express limitations. The contention of the learned Att0rney General that no implications can be read in an amending power in a Constitution must be repelled in the words of Dixon J. in West v. Commissi<mer of Taxatli:m (N.S. W,) (1):\n\n... Since the Engineer/ case a notion seems to have gained cunency\n\nthat in interpreting the Constitution no implications can be made.\n\nSuch a method of construction would defeat the intention of any lnstrumcnt, but of all instruments a written Constitutiori seems the last to which it could be applied\"\n\n' .·. W c arc equally unable to hold that in the light of the Preamble, the entire scheme of the Constitution the Iclevant; 'provisions thereof and the context . in which the material expressions arc used in Art. 368 no implied limitations arise to the exercise of the power of amendment.\n\nT~ respondents do not disj>µtc. at, . certain. limitations arise by\n\n(l) [1936-37] S6 CL.R. 657.\n\n280 SUPllMI COUKT UPOaTS [ 1973] Supp. s.c.Jt.\n\nnecessary implication e.g., the Conititution cannot be abrogated or rcpcal.:d in its entirety and that the India's polity has to be a Sovereign Democratic Republic, apart from several other implications arising from Art. 368 which have been not!Ced.\n\nThe arument that the Nation cannot grow and that the objectiYes set out in the Preamble cannot be achieved unless the amending power has the ambit and the width of the power of a Constitutent Assembly itself or the People themselves appears to be based on grounds which do not have a solid basil. The Conititution makers provided for development of the country in all the fields social, economic and political. The structure of the Conititution has been erected on the concept of an egalitarian society. But the Constitution makers did not desire that it should be a society where the citizen will not enjoy the variious freedoms and such lights ai arc the basic clements of those freedoms,. e.g., the right .to equality, freedom of religion etc., so that his dignity as an indivi'dual may be maintained. It has been strongly urged on behalf of the respondents that a citizen cannot have any dignity i£ he is economically or socially backward. No one can dispute uch a statement but the whole scheme underlying the Constitution is to bring about economic and social changes without taking away the dignity of the individual. Indeed, the same has been placed on such a high pedestal that to ensure the freedoms etc. their infringement has been made justiciable by the highest court in the land. The dictum of Das C.J. in Kera!• Education Bill case paints the true picture in which there must be harmony between Parts III and IV; indeed the picture will get distorted and blurred if any vtal provision out of them is cut out or denuded of its identity.\n\nThe basic structure of the Constitution is not a vague concept and the apprehensions expressed on behlf of the respondents that neither the citizen nor the Parliament would be able to understand it arc unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Art .. 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated).\n\n1. The supremacy of the Constitution.\n\n2. Republican and Democratic form of Government and sovereignty of the country.\n\n3. Secular and federal character of the Constitution.\n\n4. Demarcation of power between the legislature, the executiv( and the judiciary.\n\nKESAVANANDA v. KERALA (Shelat & Grover, JI.) 281\n\n5. The dignity of the individual $ecured by the various freedoms.\n\n\"nd basic rights in Part III and , the mandate to build a welfare State. contained in Part IV. '\n\n6. The unity and the integrity of the nation.\n\nThe entire discussion from the point of view of the meaning of the expression \"amendment\" as employed in Art. 368 and the limitations. which arise by implications leads to the result that the amending power under Art. 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 25th amendment can be sustained if article 368, as it originally stood and after the amendment, is read in the way we have.read it. The insertion of Arts. 13(4) and 368(3) and the other amendments made will not affect the resulr, namely, that the power in Art. 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity.\n\nWe may next deal with the validity of the Constitution (25th Amendment) Act. Section 2 of the Amending Act provides:-\n\n\"2. In Article 31 of the Constitution,~\n\n(a) for clause (2), the following clause shall be substituted~ namely:-\n\n\" (2) No property shall be compulsorily acquired or requisi- . tioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for a amount which may be fixed by such law or which may be determined in accordance with such principle.~ and given in such manner as may be specified in such law;. and no such law shall be called in question in any court on: the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash :\n\nProvided .......•...• \"\n\n(b) after clause (2A); the following clause shall be inserted,\n\nnamely:-\n\n(2B) Nothing in sub-clause (£) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2)\".\n\nAs stated in the Statement of Objects and Reasons to the Bill (No. 106 of 1971) the word \"compensation\" was sought to be omitted from Article 31(2) and replaced by the word \"amount\". It was being clarified that the said \"amount\" may be given otherwise than in cash. It\n\n282 SUPUMi! COUlT lU!POaTS {1973] Supp- $-C.L\n\n. was also provided that Article 19 ( 1) ( f) shall not apply to any law\n\nrelating to acquisil!on or rcquisi.llioning of property for a public purpose.\n\nThe position of the respondents is that \"compensation\" had been given the meaning of market value or the just equivalent of what the owner had been deprived of according to the decisions of this Court.(') That had led to the 4th Amendment Act 1955. 'The later decisions( 2) had continued ti> uphold the concept of \"compensation\" i.e. just equivalent of the value of the property acquired in spite of the amendments made in 1955. In State <>f Guiarat v. Shanti/al Mangaldas & Others(\") the decision in Metal C<>rp<>ration of India(•)\n\nwas overruled which itself was virtually overruled by R. C. Cooper v.\n\nIlnion <>f India.(0 ) According to the Advocate General of Maharashtra,\n\nif Shantilal Mangaldas etc. had not been overruled by R .• C. Cooper v.\n\nU nz\"on <>f India there would have been no ncces.ity of amending Art. 31(2).\n\nThe first question that has to be determined is the meaning of thr -word \"amount\". Unlike the word \"compensation\" it has no legal connota$n. It is a neutral, colourless word. The dictionary meanings do not help in arriving at its true import as used in a constitutional provision. It can be anything from one pan.a to an astronomical figure m rupees. Its meaning has, therefore, to be ascertained by turning to the .context in which it is used and the words preceding it as well as following it.\n\nThe scheme of Art. 31 (2) now is :-\n\n(1) The property has to be compulsorily acquired or requisitioned.\n\n(2) It has to be for a public purpo.se.\n\n(3) .It has to be by a law.\n\n( 4) The law must provide for an amount which may be-\n\n( i) fixed by such law or\n\n(ii) which may be determined in accordance with such principles as may be specified in such law.\n\n-~~~~~~~-\n\n(') Sec State of Wm Bengal v. Mrs. Bela Bannerji & .Others (1954) S.C.R. 558.\n\n( 2) Vajravelu Mudaliar v. Special Depuiy Collector, Madras (1965) S.C.R. 614 and Union of India v. Metal Corporation of India & Anr. [1967] 1 S.C.R . . 255.\n\n(') [1969] 3 S.C.R, l.\n\n\nUSAVANANDA \"· XllALA (Sltelllt & Grover, JJ.) 283\n\n(5) The law shall not be questioned in a Court on the ground :\n\n(i) The amount so fixed or determined is not adequate or\n\n(ii) the whole or any pan of 1ruch amount is to be given otherwise than in cash. '\n\nIt is significant that the amount can be determined in accordance with specified principle51 if ir is not fixed by the law itself. Morcovet, its / adequacy cannot be questioned in a court. The use of the word \"principles\" and the question of inadequacy can only arise if the amount has some norm. If it has no norm no question of specifying any, principles ariSCl! nor can there be any occasion for the determination of its adequacy. The very fact that the coun is debarred from going into the question of adequacy shows that the \"amount\" can be adequate or inadequate. Even if it is inadequate, the fixation or determination of that amount is immune from any challenge. It postulates the existence of some standard or norm without which any enquiry into adequacy becomes wholly unnecessary and irrelevant. Moreover, either method, of giving an amount must bring about the same result. In other words, !\n\nif Rs. 1000 is the amount to be given for acquisition of a property, it:\n\nmust be either fixed or must be determinable by the principles specified in the event of its not .being fixed. It could not be intended that the two alternative modes should lead to varying results, i.e, it could be fixed at Rs. 1000 but if the principl~ are specified they do not yield that,!\n\nfigur~ '\n\nThe Advocate General of Maharashtra says that tlie right of the owner is just what the government determines it to be. It can give what it pleases and when it choses to do so. Such an argument is untenable and introduces an element of arbitrariness which cannot be attributed to the Parliament.\n\nIn Shanti/al Mangal Dar, whicb, on the ubmission of the Advocate General, enunciated the correct principles relating to Article 31 (2) as it then stood, it was laid down that something fixed or determined by the application of specified principles which was illusory or could in no sense be regarded as compensation was not bound to be upheld by the' Courts, \"for to do so would be to grant a charter of arbitrariness and\n\npermit a device to defeat the constitutional guarantees\". It was added that the principles could he challenged on the ground that they were irrelevant to the determination of compensation but not on the plea that what was awarded was noi just or fair compensation. Thus it was open to the courts to go into the question of arbitrariness of the amount fixed or its being illusory even under the law laid down in Shanti!a/!1 Mangaldas (supra). The relevance of the principles had also been held to he justiciable. R. C. Cooper'; case did not lay down different'\n\n284 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nprinciples. But the observations made therein were understood to mean that the concept of just equivalent not accepted in Shanti/al' s case was restored. The amendment now made is apparently aimed at removing that concept and for that rearon the word \"amount\" has been substituted in place of \"compensation\". This is particularly so as we find no reason for departing from the well-settled rule that in such circumstances the Parliament made the amendment knowing full well the ratio of the earlier decisions.\n\nThe Advocate General of Maharashtra has submitted that the fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation. But even then the members of the legislature must have some basis or principles before them to fix the amount as the same cannot be done in an arbitrary way. He, however, gave an unusual explanation that in the Cabinet svstem of government it is for the government to deterrnine the amount or specify such principles as it choses to do. The legislators belonging to the ruling party are bound to support the measure whether the basis on which the amount has been determined is disclosed to them or not. It is wholly incomprehensible how there can be any legislative judgment or decision unless there is room for debate and discussion both by members of the ruling party and the opposition. For any discussion on the \"amount\" fixed or the principles specified the entire basis has to be disclosed. There can be no basis if there is no standard or norm.\n\nThe learned Solici.tor General agrees that Article 31 (2) after amendment still binds the legislature to provide for the giving to. the owner a sum of money either in cash or otherwise. In fixing the \"amount\", the legislature has to act on some principle. This is not because of any particular obligation arising out of Article 31(2), but from the general nature of legislative power itself. Whatever, the subject or the nature of legislation it always proceeds on a principle it is based on legislative policy. The principle may include considerations of social justice: Judicial review on the ground of inadequacy of the \"amount\" and the manner of payment is excluded by express language. No other question is excluded. The expropriated owner still continues to have a fundamental right. This argument is not quite the same as that of the learned Solicitor General.\n\nIt is true that the \"amount\" to be paid to an owner may not be the market value. The price of the property might have increased owing to various factors to which no contribution has been made by the owner. The element of social justice may have to be taken into\n\nKF.SAVANANDA v. KF.RALA (She/at & Grover, JJ.) 285\n\ncoruideration. But still on the learned Solicitor General's argument, the right to receive the \"amount\" continues to be a fundamental right.\n\nThat cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises bOth from Art. 31(2) and from l!he nat.ure of the legislative power. For, there can be no power which permits in a democratic system an arbitrary use of power. If an aggrieved owner approaches the court alleging that he tis being deprived of that right on the grounds now. open to him, the Court cannot decline to look into the matter. The Court will certainly give due weight to legislative judgment. But the norm or the principles of fixing or determining the \"amount\" will have to be disclosed to the Court. It will have to be satisfied that the. \"amount\" has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principle5 have been applied and further that the \"amount\" is neither illusory nor it has been fixed arbitrarily, nor at such a figure t ii: means virtual deprivation of the right under' Article 31 (2). The qucStion of adequacy or inadequacy, however, cannot be gone into.\n\nAs to the mode of payment, there is nothing to indicate in the amended Article that any arbitrary manner of payment is contemplated. It is well known thar a discretion has to be exercised reasonably.\n\nAs regards cl (2B) inserted in Article 31 which makes Article 19 (l)( f) inappble, there is no reason for assuming that a procedure will be provided which will not be reasonable or wiJI be opposed to the rules of natural justice. Section 2 of the 25th amendment can be sustained on the construction given to it above.\n\nWe now come to the most controversial provision of 25th Amend- . mcli.t, namdy, section 3 which inserted the following Article :-\n\n\"31 C. Notwithstanding anything contained in Article 13, no law\n\ngiving effect to the policy of the State towards securing the principle$ specified in clause (b) or clause ( c) of Article 39 shall be deemed io be void on the ground that it is incoruistent with, or takes way or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a decl, ration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :\n\nProvided thar where such law is made by the Legislature of a State, the provisions of. this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent\".\n\nAccoromg to the Statement! of Objects and Reasons contained in Bill No. 106 of 1971, the new Article has been introduced to provide that if any law is passed to give effect to the Directive Principles contained in\n\n19-36 S.O. India7S\n\n286 SUPREME COURT REPORTS [ 1973] Supp. s.c.11..\n\nclauses (b) and ( c) of Article 39 and contains a declaration to that effect, such law shall not be deemed to be void on the ground that it takes away or abridges any of the rights colltlined in Articles 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to these principles. For this provision to apply in case of laws made by State legislatures, it is necessary that the rele\\lant Bill should be reserved for the consideration of the President and reccive his assent\n\nArticle 39 contains certain principles of policy to be followed by the State. It enjoins the State inter al.ia to direct its policy towards securing:\n\n\"39 '(b) that the ownership and control of the material resources of the community are so.distributed as best to sub. serve the common good ;\n\n( c) that the operation of the economic system does not result\n\nin the concentration of wealth and means of production to the common detriment;\"\n\nThese provisions together with the other provisions of the Constitution contain one of the main objectives, namely, the building of a welfare State and an egalitarian social order in our country. As stated before, the fundamental rights and the directilve principles have been described as the \"conscience of our Constitution\". The Constitution makers had, among others, one dominant objective in view and that was to ameliorate and improve the lot of the common man and to bring about a socio.economic transformation based on principles of social justice. While the Constitution makers envisaged development in .the social, economic and political fields, they did not desire that it should be a society where a citizen will not have the dignity of the individual.\n\nPart III of the Constitution shows that the founding fathers were equally anxious that it should be a society where the citizen will enjoy the various freedoms and such rights as arc_ the basic elements: of those free.. doms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between, the fundamental rights and the directive principb. They were meant to supplement one another. It can well be 6'lid that the directive principles prescribed the goal to be attained and the fundament; il righ~ laid down the means by which that goal was to be achieved. While , on behalf of the petitioners greater emphasis has been laid on t:hc fundametal rights, counsel for the respondents say that the fund; lmental rights .should be subordinate to the directive principles. The Constituent Assembly did not accept such a proposal made by B. N. Rau. It has been suggested thar a stage has been reacbal where it has become necessary to abrogate some of the basic freedoms and rights providrd the end justifies the means. At an lier stage in the devdopmem of\n\nKl!SAVANANDA 11. KERALA (She/at & Grover, JJ.) 287\n\nour constitutional law a view was taken that the Directive Principles of State Policy had to conform and run subsidiary to the Chapter on Fundamental Rights, but Das C. J. in Kera/a Education Bill, 1957, laid down the rule of harmonious construction and observed that an attempt should be made to give effect to both the fundamental rights and the directive principles.\n\nAccording to Mr. Palkhivala, Article 31C destroys several essential features of the Constitution. He says that there is a vital distinction between o cases (a) where fundamental rights are amended to permit laws to be validly passed which would have been void before the amendment and (b) the fundamental rights remain unamended, but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void. He further points out that on the analogy of Article 3l(C) it would be permissible to have an omnibus Article that notwitbst'anding anything contained in the Constitution no law passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever. Article 31 ( C) according to him, gives a blank charter not only to Parliament but all the State Legislatures to amend the Constitution. On the other hand, the argument on behalf of the respondents is that Article 31(C) is similar to Articles 31(A) and 31(B) and that the object of inserting the Article is to free certain kinds of laws from the limitation on legi.sfative power imposed by conferment of fundamental rights by Part III of the Constitution. As those rights were justiciable under Art. 32, says the Advocate General of Maharashtra, the only way of doing so was to exclude judiciai review of legislation in respect of those laws.\n\nIf Article 31 (A) is valid, there is no reason or justification for saying that Article 31(C) suffers from all the vices pointed out by Mr. Palkhivala.\n\nAccording to the Solicitor General, Article 31(C) protects only law and nor mere eirecutive action. Law can be_lJlade by cither Parlramcnt or the State Legislatures. Article 3l(C) has been enacted for the purpose of achieving the objectives t out in clauses (b) and ( c) of Article 39. The law enacted under it will operate on \"material resources\", concentration of wealth and \"means of productil>n\". The legislative effort would generally involve (i) nationalisation of material resources of the community and (ii) imposition of control on the production, supply and distribution of the products of key industries and essential commodities. It, therefore, impinges on a particular kind of economic system only.\n\nThe question of the validity of Article 3l(C) to our mind has to be examined mainly from two points of view; the first is its impact on the various freedoms guaranteed by Article 19, the abrogation of the right of equality guaranteed by Article 14 and the right to property contained in Article 31. The second is whether the amending body\n\n288 SUPREME COUJlT llE~ORTS [1973] Supp. s.c.11.\n\nunder Article 368 could delegate its amending power to the legislatures of the Union and the States. Alternatively, whether the Parliament and the State Legislatures can, under Article 3l(C), amend the Constitution without complying with the form and manner laid down in Article 368. Now it is quite obvious that under Article 31(C) a law passed by the Parliament or the State Legislatures shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges any.of the rights conferred by Articles 14, 19 and 31 so long as the law is declared to be one for giving effect to the policy of the State towards securing the principles specified in clause (b) and clause ( c) of Article 39. If Art 3l(C) is aimed at the removal of a particular economic system, as suggested by the Solicitor General, it is difficult to understand why the freedoms contained in clauses (a) to (d) of Art. 19 as also the right of equality under Art. 14 had to be taken away. The power of enacting Constitution breaking laws has been entrusted even to a small majority in a State Legislature. Mr. Palkhivala points out that the freedom of the Press, for instance, can be destroyed under Article 3l(C) as the respondents claim the right to nationalise any industrial or economic activity. Moreover, a person can be put in prison for. commending a policy contrary to the government's policy. Such legislation cannot be challenged as Article 19(1)(a) will not apply and Article 21 permits deprivation of per.oonal liberty according to procedure established by law. The case in the State of Bombay & Another\n\nv. F. N. Balsara(1 ) is in point. Commendingthe use of an intoxicant had been made an offence. It was struck down by this Court as violative of Article 19(1)(a). If Article31(C) is constitutional, such a provision made in a law enacted under it relating to matters falling within Article 39(a) and (b) would be valid. As a matter of fact no cogent or convincing explanation has been given as to why it was necessary to take away all the freedoms guaranteed by Article 19 and for the abrogation of the prized right of equality under Article 14 of which has been described as the basic principle of republicanism.{') This Article combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Constitution.(') I1 follows, therefore, that Article 31 (C) impinges with full force or several fundamental rights which are enabled to be abrogated by the Parliament and the State Legislatures.\n\nAs regards the question of delegation of amending power, it is noteworthy that no amendment has been made in Article 368 itself to eriabk delegation of constituent power. The delegation of such power\n\n( 1) [1951] S.C.R. 682. (•) State of West Bengal v. Anwar Ali S11rkar (per Patanjali Sastri C.J.) [1952] S.C.R. 284 at pp. 293, (Ibid p. 313 Mahajan J.).\n\n(') Basheshar Nath v. The Commissjoner of Income Taz, Delhi l!r Rajasthan (per Das C.J.) [1959] Supp. 1 S.C.R. 528 at 551.\n\nIWAVANANDA 11. KUALA (She/at 6' Gro11er, JJ.) 289\n\nto the State Legislatures, in particular, involves serious consequence1.\n\nIt is well settlrd that one legislature cannot create another leai1lative body. This has been laid down very clearly in two deciaiolu oi the Privy Cow1c:il. In the lniti4li11e 11ntl Refmnd11m Act(') which lw already been discumd~ 1 ) by us no doubt wu ened that a body that had the power of le8Jalation on the tubjectt entrusted to it, evC.11. thoup, the power was to ample u that enjoyed by a provincial leaitlature i.n Canada, could not create and endow with its own capacity a new legi1lative power not created by the Act to which it owed itt own exittence.\n\nAttorney General of No1111 Scoli11 v. The Attorney Genertd of C1111111l11(1) is another direct authority for the view that the Parliament of Canada or any of the legislatures could not abdicate their powers and, invest for the purpose of legislation bodies, whlch by the very terms of the British North American Act were not empowered to accept such delegation and to legislate on such matters. The distinctipn made by counsel on behalf of the respondents and the cases relied on by them have been fully discus.iicd in the judgment of the learned Chief Justice and we need not go over the same ground.\n\nThe only way in which the Constitution can be amended, apart from Articles 4, 169 and the relevant paras in Schedules V and VI of the Constitution, is by the procedure laid down by Article 368. If that is the only procedure pmcribcd, it is not poesdble to understand how by ordinary Jaws the Parliament or the State Legislatures can amend the Constitution, particularly, when Ar.tide 368 does not contemplate any other mode of amendment or the setting up of another body to amend the Constitution. The other difficulty which immediately presents itself while examining Article 31 ( C) is the effect of the declaration provided for in the Article. It is possible to fit in the scheme of Article 31 ( C) any kind of social or economic legislation. If the courts are , debarred from going into the question whether the laws enacted are meant to give effect to the policy set out in Article 39(b) and ( c), the Court will be precluded from enquiring even ; mo the incidental encr011chment on rights guaranteed under Artides 14, 19 and 31. This is not possible with regard to laws enacted under Article 31(A). Those laws can be sustained if they infringe the aforesaid Articles only to the extent necessary for giving effect to them. Although on behalf of the respondents it is said that the Court can examine whether there is any nexus between the laws made under Article 31(C) and Article 39(b) and (c), there would hardly be any law which can be held to have no nexus with Article 39(b) and (c), the ambit of which is so wide.\n\n( 1) (1919] A£. 935.\n\n( 1) See page 88.\n\n( 1) (1951 J Cao. L. R. 31.\n\n2 90 SUPlll!M! COUllT ll!PORTS [ 1973] Supp. s.e.ll..\n\nThe essential distinction between Article 31(A) and 31(C) is. that the former is limited ro sper.ified topics,; whereas the latter does not give the particular subjects but leaves it to the )cgislatures to select any topic .. that may purport to have some nexus with the objectives iii Article 39(b) and (c). In other words, Article 31(C) deals with Qbjects with unlimited scope. .\n\n The argument that Article 31 ( C) lifts the ban placed on State L:Cgislature .and Parliament under Articles 14, 19 and 31 aud futther that it ttiay be considered as an amendment of Ariicle 368, has beCil discti!Sed by the learned Chief Justice in his judgment delivered today :ind . we adopt, witli respect, his reasoning for repelling them.\n\nIn OW' judglnent Article 31(C) suffers from two kinds of Vice which scrioU&ly affect its validity. The first is that it enables !Ota! abrogation of fundamental rightt contained in Articles 14, 19 and 31 and, secondly, the. power of amendt contained in Article 368 is of special nature which has been exclusively conferred on the Parliament and can be exercised only in the manner laid clown in that Article. It was never intended that the same could be delegated to any other legislature including the State Legislatures.\n\nThe purpose sought to be achieved by Article 31(C) may be highly laudable as pointed ()m by the !carried Solicitor General, but the same must be achieved by appropriate laws which can be constitu tionally upheld. We have tto option, in view of what has been s:l, id except to hold that the validity of Article 31 ( C) cannot be sustained. .\n\nThe last matter for determination is the validity of the 29th Amendment Act, 1m. The challenge is only against the lnc!U&ion of t:Wo.\n\nActs, namely. the Kerala Land Reforms (Amendment) Act 1969 and a similar Kerala Act of 1971 in the Ninth Schedule to the Constitu. tion.\n\nThe main argument on behalf cl. the petitioners ms betn tonfintd to the relationship between Article. 3l(A} and Article 3l(B); It hat been contended that Artkle 3I(B) is intimately llnked With Art. 31(A) arid, therefore, only those legislatite enactments which fall undeT Atticle 3l(A) can be included in the 9th Schedule under Article 3l(B).\n\nThis matter is no longer open to argument as the same stands settled by a series of , decisions of this Court. See State of Bih~ v .. Mah11ra; rulhira; Sir Kameshwar Singh of Darbhanga & OthN\"s;(') 1'ilw~1!11Vl11' .R\"tJ v.\n\n(') [19S2] S.C.R. 889.\n\nKESAVANANDA \"· KEllALA (She/at & Grover JJ.) ~91\n\nThe State of Madhya Pradesh(') and N. B. fee; eebhoy v. Assistant Collector, T hana Prant, T hana.(') In all these cases it wu held that Article 31 (B) was independent of Article 31(A). A matter which has been settled for all these ye:irs cannot be re-opened now. It will still be open, however, to the Court to decide whether the Acts which were included in the Ninth Schedule by 29th Amendment Act or any provision thereof abrogates any of the bask clements of the constitutional structure or denudes the1n of their identity.\n\nOur conclusions may be sumtnariscd as follows :\n\n1. Thedecision in Golak Nath has beco:tne academic, for even if it be assumed that the majority judgment that the word 'law' in Article 13(2), covered constitutional amendrtients was not correct, the result on the questions, wider than those raised in Golak Nath, now raised before us would be just the same.\n\n2. The discussion on the 24th Amendment leads to the result\n\nthat-\n\n( a) the said amendment does no more than to clarify ib. express\n\nlanguage that which was implicit in the unamended Article 368 and that it does not or cannot add to the power originally conferred thereunder;\n\n(b) though the power to amend cannot be narrowly construed and extends to all the Articles it is ilot unlimited so as to include the power to abrogate or change the identitv of the Constitution or its Qasic features; ( c) even if the amending power includes the power to amend Article 13(2), a question not decided in Golak Nath, the power is not so wide so as to include the power to abrc.gate\n\nor take away the fundamental freedoms; and ( d) the 24th Amendment Act, read as aforesaid, is valid.\n\n3. Clause (2) of Article 31, as substituted by s. 2 of the 25th Amendment, does not abrogate any basic clement of the\n\nConstitution nor does it denude it of its identity because-\n\n(a) the fixation or determination of \"amount\" under that Article has to be based on some norm or principle which must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned;\n\n(b) the amount need not be the market value but it should have a reasonable relationship with the value of such property;\n\n( 1) [1952] S.C.R. 1020.\n\n\n292 suPlllMI cou11r lllPOATS [ 1973] Supp. s.c.1.\n\n(c) the amount should neither be illusory nor fixed arbitrarily; and\n\n(d) though the courts arc debarred from going into the question of adequacy of the amount and would give due weight to le!PJlativc judgment, the examination of all the matters in (a), (b) and ( c) above ia open to judicial review.\n\n4. Aa regards clawe (2B) inserted in Article 31 which makes\n\nArticle 19(1)(£) inapplicable, there is no reason to suppose that for determination of the amount on the principles laid down in the law any such procedure will be frovided which will be unreasonable or opposed to the rules o natural justice.\n\nS. On the above view section 2 of the 25th Amendment is valid.\n\n6. The validity of section 3 of the 25th Amendment which introduced Anicle 31C in the Constitution cannot be sustained because the said Article suffers from two vices. T~ first is that it enables abrogation of the basic elements of the Constitution inasmuch as the fundamental rights contained in Articles 14, 19 and 31 can be completely taken away and, secondly, the power of amendment contained in Article 368 is of a special nature which has been exclusively conferred on Parliament and can be exercised only in the manner laid down in that Article. The same could not be delegated to any other legislature in the country. Section 3, therefore, must be declared to be unconstitutional and invalid.\n\n7. The 29th Amendment is valid. However, the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration.\n\nThe petitions are remitted to the Constitution Bench to be decided in accordance with this judgment and the law. The Constitution Bench will also decide the validity of the 26th Amendment in the light of our judgment.\n\nHEGDE AND MuKHERJEA JJ.-In these writ petitions questions of great constitutional importance have arisen for consideration. Herein we are called upon to decide the constitutional validity of the 24th, 25th, 26th and 29th Amendments to the Constituaon. We have had the ac!Yantage of hearing long and illuminating arguments cov~ing over 65-working days. We have been referred to numerous dec1S1ons of this Court and of the courts in England, United States, Canada,\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 293\n\nAustralia, Germany, Ireland and Ceylon. Our attention has also been invited to various writings of jurists, present and past, of several countries. For paucity of time, we have not taken up the question of the validity of the 26th Amendment. That question can be conveniently considered later after this bench decides certain fundaniental questions of law arising for decision. For the same reason we have also refrained from going into the merits of various wcit petitions at this stage. At present we are merely deciding the scope and validity of the 24th, 25th and 29th Amendments to the Constitution.\n\nIn order to decide the validity of the Amendments referred to earlier, it is necessary to go into the scope of the power conferred on Parliament under Article 368 of the Constitution as it stood prior to its amendment by the 24th Aniendment Act which. came into force on November 5, 1971. Article 368 is the only article found in Part XX of the Constitution. The title of that part' is \"Amendment of the Constitution.\" Its marginal note as it originally stood read ''Procedure for amendment of the Constitution\". The Article read thus:\n\n\"An amendment of this Constitullion may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill Is passed in each House by a majority of. the total membership of that House and by a majority of not less than twe>-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :\n\nProvided that if such amendment seeks to make any change in.,.._\n\n(a) article 54, article 55, artick 73, article 162 or article 241, or\n\n(b) Chapter N of Part V, Chapter V of Part VI, .or Chapter I of Part XI, or\n\n(c) any of the Lists in the Seventh Schedule, or\n\n(d) the represent:ition of States in Parliament, or\n\n( e) the provisions of this article,\n\nthe amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.\"\n\nThe petitioners' learned Counsel, Mr. Palkhivala, advanced twe>- fold arguments as to the scope of that Article. His first contention was that in the exercise of its powers under. Article 368 as it stood\n\n294 SUPREME COURT REPORTs [ 1973] Supp. s.c.a.\n\nbefore its amendment, it was impermissible for Parliament to take away or abridge any of the rights conferred by Pan III of the Constitution. His second and more comprehensive argument was that the power conferred on the Parliament under Art. 368 did not permit it to damage or destroy any of the basic or fundamental features or ossential clements of the Constitution. The arguments on these two aspects naturally ran into each other. But for a prQjJCr legal approach, it is necessary to keep them apart as far as possible. Heru:c while considering the correctness of the first contention, we shall not take into consideration the importance of the Fundamental Rights. On this aspcc.t, our approach to Article 368 will be p11rely baStd on the language of Article. 368 and Article 13. 'rh.e importance or transcendental character of the Fundamental Rights as well as the implied or inherent fimitations on the amending power, if any, will be cmuidered wltlle dealing with the second of the rwo altcthative contentions advanced by Mr. Palkhivala.\n\nWe shall first take up the question whether by the exercise of the powet of amendment conferred by Article 368, as it originally stood, Parliament could have taken away any of the Fundamental Rights conferred by Part III. According to Mr. Palkhivala, Article 368 as 'tt stood before its amendment merely laid dciwn !the procedure for amendment; the power to amend the Constiiution must be found somewhere else in the Consllitution; the power to be exercised by Parliament under Article 368 in legislative in charaoter and the resulting product is 'law', hence such a law, in view of Article 13(2) which says \"The State shall not make any law wltlch takes away or abridges the rights conferred by tltls Part and any law made in contravention of tltls clause shall, to the extent of the con!travention, be void\", cannot validly take away or abridge any of the Fundamental Rights. He further contended that the word 'law' in Article 13(1) means and includes not merely legislative enactments but also constitutional measures. The Counsel urged, there is no reason why a different meaning should be given to the word 'law' in Atticle 13(2). A more impo!1tant argument of his was that the power to amend the Constilturion, even if, it is assumed to be contained in Article 368, is by no means an exclusive power because in ecrntin respects and subject to certain conditions, the Constitution can also be amended by Parliament by a simple majority by enacting a law in the same manner as other legislative measures are enacted. In this connection he drew our attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counset urged that'if the amendment of the, provisions of the Constitution referred to therein is considered as the exercise of constituent power and comequcntly such an amendment is not a \"law\" within the meaning of that expression ill Article 13, then Parliament by a simple majoi'ity of the meinber!\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 295\n\npresent and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rigtits of certain sections of the public in this country.\n\nOn the other hand, the learned Attorney General, the learned Advocate General fo~, the State of Maharashtra, appearing for the State of Kerala and the other Counsel appearing for the various States contended that a plain reading of Article' 368 shows that he power to amend the Constitlltion as weU as the procedure of amendment are both contained in that Article; once the form and the manner laid down in that Article have been complied with, the rt is the amendment of the Constitution. According to them, the expression \"an amendment of this Constiltution\" in Article 368 means an amendment of each and every provision or. part of the Comaitution; once the-form and manner provided in Article 368 have been complied with, the amended Article is as effective as the original Article itself; and, therefore, as in the case of the original Article, the validlty of the amended Article also cannot be chaengcd. They further contended that 'law' in Article 13 means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or notific:(tions or customs or usages having the force of law in the territory of India and that expression does not include a constitutiooal law, though in a comprehensive sense, a constitutional law is also a law. They further contended that the word 'law' in Article 13 muSlt be harmoniously construed with Article 368 and, if 'it is so construed, thero is no room for doubt that the expression 'law' in Article 13 does not include a,\n\nconstitutional law. They repudiated the contention of Mr. Palkhivala that there was any constitutional law as such in force when tthe Constitution came into force. Hence according to them the expression 'law' in Article 13(2) does not take in the amendment of the Constitution. According to them, laws enacted under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI are not to be deemed as amendments to the Consitituttion as is laid down in those provisions, though in fact they do amend the Constitution in certain respects and they are no different from the other kgislative measures enacted by Parliamnt; hence the laws enacted under those provisions cannot take away or abridge any of the Fundamentaf Rights. We have now to see which one of those lines of reasoning is acceptable.\n\nThe question whethr Fundamental Rights can be abridged by Parliament by the exercise of its power under Article 368 in accordance with the procedure laid down therein came up for consideration before this Court very soon after the Constitution came into force., The validity of the Constitution (1st 'Amendment) Act 1951 came up for the consideration of this Court in Sankari Prasad\n\n296 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nSingh Deo v Union of India and State of Bihar('). In that case the\n\nscope of Article 368 vis-a-vis Article 13(2) was debated. This Court rejecting the contention of the pctiitioners therein that it was impcrmissibk for Parliament to abridge any of the Fundamental Rights under Article 368, held that \"although 'law' must ordinarily include\n\nconstitu6onal law, there is a clear demarcation between ordinary jaw which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power\". This Cow:t held that .. in the context of Article 13, 'law' must be taken to mean rules or\n\nregulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent powei;, with the result that Article 13(2) does not affe~ the amendments made under Article 368\". In the case this Collilt also opined that the power to amend the Constitution was explicitly conferred on Parliament by Article 368 and the requirement of a different majority was merely procedural. It rejected the contention that Article 368 is a complete code by itself and upheld the contention of the Government that whik acting under Article 368, Parliament can adopt the procedures to be adopted, except to the extent provided in Article 368, in enacting other legislative measures.\n\nThe power of Parliament to abridge Fundamental Rights under Article 368 was again considered by this Court in Sajian Singh v.\n\nState of Raiasthan ('). In that case two questions were considered viz. <\n\n1) Whether the amendment of tlhe Constitution in so far as it purported to take away or abridge the rights conferred by Part Ill of the Constitution was within the prohibition of Article 13(2) and\n\n(2) Whether Articles 31-A and 31-B (as amended by the li'th Amendment Act) sought to make changes in Article 132, Article 136 and Article 226 or any of the Lists in the VI!th Schedule and therefore the condit'ions prescribed in the prov!iso ID Article 368 had to be satisfied.\n\nIt is clear from the judgment of the Court that the first question was\n\nnot debated before the Court though the majority judges as well as the minority judges did consider that question evidently without any ass1ttance from, the bar. On both those questions Chief Justice Gajendragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ. concurred with the view taken by this Court in Sankari Prasad's case. But Hidayatullah J. (as he then was) and Mudholkar J. doubted the correctness of that decision on the first question but concurred with the view taken by the majority of judges on the second question.\n\nHidayatullah and Mudholkar JJ. agreed in dismissing the writ petitions as the petitioners had not challenged the correctness of the decision of this Court in Sankari Prasad's case on the first question.\n\n( 1 )\n\n[ 1952] S.C.R. 89.\n\n\nKESAVANANDA v. KEP.ALA (Hegde & Mukheriea, JJ.) 297\n\nThe question whether any of the Fundamental Rights can be abridged or taken away by Parliament in exercise of its power undtr Article 368 again came up for consideration before this Court in I. C. Golaknath and ors. v. State of Puniab('). This case was heard by a full court of eleven judges. In t!hat case by a majority of six to five this Court came to the conclusion that Sankari Prasad's case as well as Saiian Singh' s case were not correctly decided. The majority held that the expression 'law' in Article 13(2) includes constitutional amendments as well. The minority agreeing with the earlier decisions held that the expression 'law' in Article 13(2) does not include cons-· titutional amendments. Five of the majority judges namely . Subba Rao C.J., Shah, Sikri, Shellit and Vaidia1ingam JJ. held that;.Article 368 in terms only prescribes the various steps in the mater .of. a.mendment and that the Article assumes tihe existence of the power. toamend somewhere else in the Constitution. Accord'ing to them the mere completion of the procedural steps mentioned in Article 368 cannot bring about a valid amendment of the Constitution. In their opinion, the power to amend cannot be implied from Article 368. They declined to infer such a power by .implication in Article 368 as they thought it was not necessary since Parliament has under Article 248 read with Item 97 of List I of the VIIth• Schedule plenary power to make any law incliuding the law to amend the Constitution subject to the limitations contained therein. They observed that the power of Parliament to amend the Constitution may be derived from Article 245, Article 246 and Article 248 read wiith Item 97 of List I. The remaining six judges held that the power of amendment is no~ derived from Art. 248 read with Entry 97 of List I of the VII1ih Schedule. Wanchoo J. (as he then was) and Bhargava, Mit1ter and Bachawat JJ. held that the power to amend is to be found in Article 368 and Ramaswami J. held that Article 368 confers on Parliament the right (power) to amend the Constitution. Hidayatullah J. (as he then was) held that Article 368 outlines a process, which, if foUpwed striotly, results in the amendment of the Constitullion; that article gives the power to no particular person or persons, and that the power of amendment, if it can be called a power at all, is a leglslati.ve power but ic is sui generis\n\nand exists outside the three Lists in Schedule VII of the Constitution.\n\nThis reasoning of Hidayatuulah J. may be reasonably read to suggest that the power of amendrnen~ is necessarily implied in Article 368.\n\nThe jority of the judges who held that it was impermissible for Parliament to take. away or abridge any of the Fundamental Rights by an amendment of the Constitution did not proceed to striko down the the 1st, 4th and 17th Amendments. Five of them relied on the doctrine of. \"Prospective Overruling\" (Subba Rao C.J., Shah, Sikri, Shclat and Vaidialingam JJ.) and Hidayatullah J. relied on the doctrine of\n\n(1) (1957) 2 S.C.R. 7Q.\n\n1298 CUPllME COURT REPORTS (1973) Supp. S.C.R,\n\nacquiescence to save those amendments. Evidently in an attempt to get over the effect of the decision in Golak Nath' s case, Parliament has enacted the 24th Amendqient Act, 1971, and the same has been ratlified by more than one half of , the Legislatures of the States.\n\nNow, turning back to the contentions :idvanced on behalf of the partiei, we shall first deal with the cQntention of the Union and s<>me of the States that once the \"form and manner\" prescribed in Artick 368 are complied with, the Constitution stands amended and thereafter the validity of the amendment is not open to challenge.\n\nThis contention d6es not appear to be a tenable one. Before a Constitution can be validly amended, two requirements mUSll be satisfied.\n\nFirstly, there must be the power to amend the provision sought to be amended; and secondly, the \"form and the manner\" prescribed in J).rtide 368 must be satisfied. lf the power to amend the Article is wanting, the fact that Parliament has adhere;:! to the form and manner prescribed in Article 368 becomes immaterial. Hence !he primary question is whether Parliament has power to abridge or take away any of the Fundamental Rights prescribed in Part III of the Constitution ?\n\nIn order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article. As seen earlier in Sankari Prasad' s case, this Court ruled that the power to amend the Constitution is to be found in Article\n\n368. The same view was taken by the majority of judges in Saiian Singh's case as well as in Golak Nath's case. We respectively hold that view to be the correct view As mentioned earlier, Part XX of the\n\nConstitution which purports to dc; tl with amendment of the Constitution cont:!ins only one Article, i.e. Article 368. The title of that Part is \"Amendment of the Constililltion.\" The fact that a separate part of the Constitution is reserved for the amendmellltl of the Constitution is a circumstance of great significance-see Don John Francis Douglas uyanage and ors. v. The Queen(') and State of UP. v.\n\nManbodhan Lal Srivastava(2 ). The provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. All modern Constitutions assign an important place to the amending provisions.\n\nIt is difficult to accept the view expressed by Subba Rao C. J, and the learned judges who agree<l with him that the power to amend the Constitution is not to be found even by necessary implication in Article. 368 but must be found\n\n( 1) (1967] I A.C. 259 at 287.\n\n' 2) [1958] S.C.R. 533 at 544.\n\nsAVANAND4 v. KERALA (Hegde & Mukher; ea, JJ.) 299\n\nelsewhere. In their updoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the V!Ith Schedule of the Constitution merely divide the topics of legislation among the Union and the S11ates. It is obvious that these Lists have been very carefully prepared. They are by and large exhaustive. Entry 9Z, in List I was included to meet some unexpected\n\nand unforeseen contingencies. It is difficult to believe that ollr Constitution-m; ikers who wiere keeply conscious of the impor1!.a!l.ce of the provision relating to the amendment of the Constitution and debated that question for sever:il days, would have left .this important power hidden in Entry 97 of J., iSll I leaving it to the off chance of the courts loca6iig that power in th; tt Entry. We are unable to agree witli those learned ju<)ges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of\n\nloating power of ammdment in the residuary power conferred on the Union. Their reasoning in that regard fails to give due weight tp the fact that the exercise of the power under those ariticles is \"subject tQ the provisi1>ns of this Constirution\". Hardly few amendments to the Constitutil>n can be made subject to the existing proviions of the Constitution. M:ost amendments of the Constitution must necessarily impinge on one or the other of the existing provisions of the Constitutiol}. W r; have no doubt in our minds that Article 245 to Artie&! 248 as well as the Lists in the Vllth Schedule merely deal with the legislative power and not with the amending poer.\n\nNow coming back to Ar.;..!e 368, it may be noted that it has tluee components; firstly, it deals with the amendment of the Constitullion; secondly, it designates the body or bodies which can amend the Constitution, and lastly, it prescibes the form and the manner in which the amendm-=nt of the Constitution can be effected. The Article does not expressly confer power In amend; the power is necessarily implied in the Article. The Atticle makes it clear that the amendment of the Constitution can only be made by Parliament but in cases fallipg under the proviso, ratification by legislatures of not less than one-half of the States is alro necessary. That Artitle stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of a Bill for that purpose in either House of Parliament. It must then be passed in each House by a majority of the total membership of that House and by a majority of not less than twO'thirds of the members of that House present and voting and if the amendment seeks to make any change in the provisions mentioped in the proviso, it must be ranified by not less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent. It further says tihat upon such assent\n\nbe\\ng given to the Bill \"the Constillution shall stand amended in accordance with the terms of the Bil!l\". To restate the position, Anicle\n\n300 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\n368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution.\n\nNo undue importance should be attached to the marginal not.e which . says \"Procedure for amendment of the Constitution\". Marginal note plays a very little part in the construction of a stautory provision. It . should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unanioiguous. Hence we need not call into aid any of the rules of constructlion about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the mar~ not.e does not negative the existence of the power implied in the Article.\n\n; The next question is whether the power conferred under Art. 368 is available for amending each and every provision of the Constitution.\n\nThe Article opens by s~.ying \"An amendment of this Constitution\" whidi means an amendment of each and every provision and part ot the Constituti!>n. We find nothi.ng in that Article to restrict its\n\nscope. If we read Article 368 by itself, there can be no doubt that the pomr of amendmt implied in that Article can reach each and every Article as well as every . part of the Constitution.\n\nHaving ascertained the '\"true scope of Article 368, let us now turn to Article 13. A great deal of rel'iance was pliaced by the learned Counsel for the petitioners on the expression 'law' found in Articlo 13(1) and (2). As seen earlier, the two judges in Saiian Singh's case as well as the majority of judges in Golak Nath's case opined that 'law' in Article 13(2) also includes constitutional law i.e. law which amends the Constitution and we sec no substance in the contention that the amendment of a Constitution is not 'law'. The Constitution is amended by enacting Amendment Acts. The Constitution is not oniy a law but the paramount Jaw of the country. An amendment of that law must ru:ifcSsarily be a law. The fact that the word 'law' is .not used in Article 368 is of little significance. For than matlter Article\n\n110 also does not provide that a Bill when assented to by the President becomes law. The amendment of a Constitution is initiated by a Bill and itt goes through the procedure laid down tin Article 368, supplemented wherever necessary by the yrooedurc prescn1icd in Article 107;\n\nsoe Siznkari PrasaJ's case. The Billl when passed by both the Houses of Parliament and, in matters coming under the proviso to Article 368, after securing the necessary ra.6fication by the State Legislatures, is prescnt.ed to the President for his assent. The procedure adopted is the same as that adopt.ed in c:nacting an ordinary statlltc except to the extent provided in Article 368. Even if it had been different, there can be hardly any doubt that the amendment of a Constitution is 'law'.\n\nKESAVANANDA v. IWALA (Hegde &- Muk,.herjea, JJ.) 301\n\nIn Sank,.ari Prasad's case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling thaa the expression 'law' must ordinarily include 'constitutional law'. The same view was taken by all the judges in Saj; an Singh's case and also by most of the judges in Golak.. Nath' s case •\n\n• But the question still remains whether our Constitution makers by using the expression 'law' in Article 13(2) intended that that expression should also include the exercise of Parliament's amending ' power under Article 368. W c have earlier &plained the scope and E extent of Article 368. In understanding the meaning of the word 'law'; in Article 13(2) we should bear in mind the scope of Article 368. The two Arti.clcs w'ill have to be construed harmoniously. The expression 'law' may mean one of two things, namely, either those measures which are enumerated in Article 13(3) as well as staliUtcs passed by legislatures or in addition thereto constitutional laws (amendments) as wc!L In this connection reference may be made to a passage in Corpus Juris Secundum (Vol. XVI-Title Constitutional Law Article 1, p. 20), which says :\n\n\"The term 'Constitution' is ordinatily employed to designate the organic law in contradistinction to the terms 'law' which is\n\ngenerally used to dcsignaac statutes or legislative enactments.\n\nAccordingly, the term 'law' under this distinction does not include a constitutional amendment. However, the term 'law' may, in\n\naccordance with the context in which it is used, comprehend or include the Constitution or a constitutional provision or amendment.\"\n\nIi is true that Article 13(3) contains an inclusive definition of the term 'law' and, therefore, the question whether it includes constitutional amendment also cannot be answered with reference to that clause. All the same, since the expression 'law' can have two meanings, as mentioned earlier, we must take that meaning which harmonises with Articlle 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is ambiguous because of the fact that the word 'law' may or may not include const\\tutional amendment. Further, when we peak of 'law' we ordinarily refer to the exercise of legislative power. Hence, 'law' in Article 13(2) must be construed as referring to the exercise of an ordinary legislative power.\n\nAri. examination of the various provisions of our Constitution shows that it has made a distinction between \"the Constitution\" and \"the laws\". The two arc invariably treated separately-sec Article 60, 61, proviso to Article 73 ( 1), Article 75 ( 4) read with the Third\n\nSchdule, Article 76(2); Article 124(6) read wifu the Third\n\nScheduk, Article 148(5), Article 159 and Article 219 read with the\n\n20-36 S. C. India/73\n\n3()2 SUPREME COURT REPORTS (1973) Supp- SC.R.\n\nThird Schedule. These provisions clearly establish that the Constitutioners have not used the expression 'law' in the Constitution as indudmg constitutional law.\n\nMr. Palkhivala contended that the term 'law' in Article 13(1) includes constl:tutional law also. Wanchoo J. speaking for himself and on behalf of two otlher judges in Golaknath' s case held that on the day the Constitution came into force, no constitutional law was in force. Therefore in his view, the term 'law' in Article 13(1) can only refer to legislative measures or ordinances or bye-laws, rules, regulations, notifications, customs and usages. Mr. Palkhivala contended that the said finding is not correct. In that connection he referred to the treaties and agreements entered into between the former Rulers of the Indian States and the Central Government as well as to certain other measures which were in force when the Constitution came into force which, according to him, are 'constitutional law' and, on that basis, he contended that certain constitutional laws were in force on the day when the Constitution came into force. We are not satisfied that this contention is correct. Under Article 395, the Indian Independence Act, 1947 as well as the Government of India Act, 1935, were repealed. The laws whkh were continued under Article 372 after the Constitution came into force did not operate on their own strength. For their validity they had to depend on Arricle 372 and that Article made it clear that those laws will continue to be in force \"subject to the other provisions of .the Constitution\". Anyway it is not necessary to decide the question whether those laws are constitutional •laws. Article 13( 1) does not refer to 'laws' as such. It refors to \"laws in force in the territory of India immediately before the commencement of this Constitution\". It identifies certain laws and determines the extent of their validity. The scope of Article 13 ( 1) does not bear on the interpretation of the expression 'law' in Article 13(2).\n\nWe shall now examine the contention of Mr.' Palkhivala based on Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. He contended and we have no doubt that he did so rightly,-that the Constitution can be amended not only under Article 368 but alo under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Amendments under these provisions can be effected by Parliament by a simple majority vote of the members present in the House and voting, if the prescribed quorum is there. If the two Houses do not agree on any amendment under those provisions, the same has to be decided by a Joint sitting of the two Houses as provided in Article 108. That is\n\nbecause of the exprCM exclusion of the application of Article 368 to the amendments made under those provisions.\n\nAccording to Mr.\n\nPalkhiTala, by the exercise of its power under the aforementioned\n\nKESAVANANDA v. KERALA (Hegde & Mukhel'jea, JJ.) 303\n\nprnvisions, Parliament can in certain respects take away or abridge the Fundamental Rights of a section of the people of this country.\n\nHe painted a gloomy picture as to what can happen by the exercise of power by Parliament under those provisions. It is true that the power conferred under the aforementioned provisions is amending power but those provisions make it clear that the exercise of the power under those provisions shall not be \"deemed to be the amend ment of the Constitution for the purpose of Arlick 368\".\n\nThis brings us to a consideration, wha~ exacty is the intent of the expression \"No such law as aforesaid shall be deemed to be an\n\namendment of this Constitution for the purpose of Article 368\".\n\nThere can be little doubt that these words merely mean that the form and manner prescribed in Art:icle 368 need not be compiled with.\n\nOnce this position is accepted any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13(2).\n\nCounsel either side took us through the debates of the Constituent Assembly relating to Article 368. Naturally each one of them relied on those passages from the speeches of the various members who took part in the debate and, in particular, on the speeches of late Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported their contention. Having gone through those speeches, we feel convinced that no conclusive inference can be drawn from those speeches as to the intention of those speakers. Hence, we need not go into the question at this stage whether it is permissible for us to place reliance on' those speeches for finding out the true scope of Article 368.\n\nMr. Palkhivala placed a great deal of reliance on the stages through which the present Article 13 passed. It is seen from the Constituent Assembly records that when the Constituent Assembly was considering the provision which resulted in Article 13(2), Mr.\n\nSanthanam one of the members of the Constituent Assembly moved an amendment to make it clear that the expression 'law' in Article 13(2) does not include an amendment of the Consiitution under draft Article 304 (present Article 368) and that the amendment was accepted by Sardar Patel, Chairman of the Advisory Committee. On the basis of that deci&ion, Sir jl. N. Rau, the Constitutional Adviser redrafted the concerned provision by specifically excluding from its operation amendments of the Constitution. When this matter went before the Drafting Committee consisting of emient lawyers, they redrafted the clause thus :\n\n\"The State shall not make any law which takes away or abridges the rights conferred by this part and any Jaw made in contravention of this clause shall to the extent of contravention be void.\"\n\n304 SUPREME COURT REPGRTS (1973) Supp- S-0.Il.\n\nIn other words, the drafting committee deleted from Sir B. N.\n\nR:m's draft those words which specifically excluded from the operation of the clause amendments of the Constitution. From these circumstances, Mr. Palkhivala seeks to draw the inference that the Constituent Assembly finally decided to bring within the scope of Article 13(2) constitutional amendments also. We are unable to accept this contention. It is not ckar why the drafting .committee deleted the reference to the amendment of the Constitution in Article 13(2).\n\nIt is possible that they were of the opinion that in view of the plain language ot the provision relating to the amendment of the Constitution i.c draft Article 304, it was unnecessary to provide in Article 13(2) that the amendment of the Constitution does not come within its scope.\n\nIt is true that this Court has characterised the Fundamental rights as \"paramount\" in A. K. Gopalan v. Slate of Madras('), as \"sacrosanct'' in State of M.Jras v. Smt. Champakam Dorairaian,('), as \"rights served b¥ the people\" in Pandtt M. S. M. Sharma v. Shn\" Sri\n\nKnshna Sinha,( ) as \"inalicnabk and inviolable\" -in Smt. Uiiam Bhai\n\nv. State of U J'.(') and as \"transcendental\" in several other cases. In so descnbing the Fundamental Rights in those cases, this Court could not have intended to say that the Fundamentaf Rights alone arc the basic elements or fundamental features of the Constitution. Mr.\n\nPalkhiwala conceded that the basic clement;, and fundamental features of the Constitution arc found not merely in Pan III of the Constitution but they arc spread out in various other parts of the Constitution.\n\nThey arc also found in some of the Directive Principles set out in Part IV of the Constitution and in the provi&ons relating to the sovereignty of the country, the Republic and the Democratic character of the Constitution. According tx> the Counsel, even the provisions relating to tho unity of the country arc basic clements of the Constitiltion. ·\n\nIt was urged that since even amcndmcnll of several provisions of minor significance requires the concurrence of the legislatures of the majority of the States it is not likcliy that the Constitution makers would have made the amendment. of the provisions relating to Fundamental Rights a plaything of the Parliament. Th'.is argument, however, does not lead to any definite conclusion. It is not unli1'lv that the Constitution-makers thought that the states arc specially interested in the provisions mentioned in the proviso l'O . Article 368,\n\n( ') [ 1950] S.C.R. 88 at 198.\n\n( 2) (1951] S.C.R. 525. (') .[1959] Supp. 1 s.c.R. 806. (') [1963] 1 S.C.lt 778.\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 305\n\nso that the amendment of those provisions should require ratification by the legislatures of the majority of the States. When the language of Article 368 is plain, as we think it is, no question of construction of than Article arisei. There is no need to delve into the intention of the Constitution-makers.\n\nEvery Constitution is expected to endure for a long time. Therefore, it must necessarily be . elastic.. It is not possible to place the society in a straight jacket. The .society grows, its requirements change.\n\nThe Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come. Hence every Constitution wisely drawn up provides for its own amendment. We shall separatdy consider the contention of Mr.\n\nPalkhivala that our Constitution embodies certain features which arc so basic that no free and civilised society can afford to discard them and in no foreseeable future can those features become irrelevant in this country. For t'he present we shall keep apart, for later consideration. Mt. Palkhivala's contention that the Parliament which is only a constituted body cannot damage or destroy the essential features of the Constitution. Up till now we have merely confined our attention to the question as to the scope and reach of Article 368. This Court has always attached great importance to the Fundamental Rights guaranteed under our Constitution. It has given no less. imporotance to some of the Directive Principles set out in Part IV. The Directive Principles\n\nembodied in Part IV of the Constitution or at any rate most of them are as important as the rights of individuals. To quote the words of Graville Austin (The Indian Constitution-Corner Stone of a Nation, page 50) :\n\n\"The Indian Constitution is first and foremost a social document.\n\nThe majority of its provisions are either directly aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement yet despite the permeation of the entire Constitution by the aim of national renaissance, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience of the Constitution.\"\n\nTherefore to implement the duties imposed on the States under\n\nPart IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or individuals under Part III, as in the case of incorporation of clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Article 19(2) with a view to maintain effectively public order and friendly relations with foreign States. Hence we are unable to construe the amending power in a narrow or pedantic manner. That power,\n\n306 SUPREME COURT REPORTS (1973 j Supp. S.C.Il.\n\nunder any circumstance, must receive a broad and hbcral interpretation. How large it should be is a question that requires closer examination. Both on principle as well as on the language of Article 368, we are unable to accede to the contention that no right guaranteed by Part III can be abridged.\n\nThis Court is al'ways reluctant to overrule its earlier decisions.\n\nThere inust be compelling reasons for overruling an earlier decision of this Court. As seen earlier, there are already conflicting decisions as to the scope of Article 368. As far back as 1951, in Sankari Prasad' s case, thls Court took the view that the power of amendment conferred Wlder Arlicle 368 included withiin itself the power to abridge and take\n\naway the Fundamental Rights incorporated in Part III of the Constitution. The correctness of that view was not challenged in several other decisions. The same view was taken in Saiian Singh's case. That view was negatived in Golakhnath's case by a very narrow majority.\n\nBearing in mind the disastrous effect that decision would have had on many important laws that had been enacted by the Union and the States between the years 1951 to 1967, this Court by relying on the doctrines of prospective overruling and the doctrine of acquiescence did not invalidate those laws.\n\nOne other circumstance of great significance is that the !st Amendment to the Constitution was carried out by the provisional Parliament whlch consisted of the very members who were the members of the Const'ituent Assembly. It should be remembered that members of the Constituent Assembly continued as the members of the provisional Parliament till the General Election in 1952. They must have been aware of the intention with which Article 368 was enacted.\n\nThese are important circumstances. The interpretation we place on a constitutional provision, particularly on a provision of such great importance as Article 368 must subserve national interest. It must be such as to further the objectives intended to be achleved by the Constitution and to effectuate the philosophy underlying it. To quote the memorable words of Chief Justlice Marshall we !IlUSt not forget that we are expounding a Constitution.\n\nWe now come to the second contention of Mr. Palkhlvala that the word 'amendment' has a limited meaning and Article 368 docs not permit any damage to or destruction of the basic or fundamental features or essential elements of the Constitution. Mr. Palkhivala urged that the word \"amendment\" or \"amend\" ordinarily means 'to make certain changes or effect some improvements in a text'. Those words do not, according to him, except under special circumstances mean the widest power to make any and every change in a document, including a power to abrogate or repeal the basic features of\n\nKESAVANANDA v. llllALA (Hegde & Mukheriea, JJ.) 307\n\nthat document. The same,. he contended, is true of a power to amend a statute or a Constitution. In support of his contention, he invited our attention to the various meanings given to the word \"amendment\" or \"amend\" 'in several dictionaries. He further urged that in construing the meaning of the word \"amendment\" 'in Article 368, we must take into consideration the donee oo whom the power to amend the Constitution is granted, the atmosphere in which the Constitution came to be enacteci, the consequences of holding that power is unlimited in scope as well as the Sf:heme of the Constitution. He urged that in the final analysis, the duty of the Court is to find out the true intention of the founding fathers and therefore the question before us is whether the founding fathers intended to confer on Parliament, a body constituted under the Constitution, power to damage or destroy the very basis on which our Conscitution was erected. On the other hand it was contended on behalf of the Union of India, State of Kerala as well as the other States that the power of amend!J1ent conferred under Article 368 is of tho widest -amplitude.\n\nIt brooks no limitation. It is a power which can be used to preserve the Constitution, to destroy the Constitution and to re-create a new Cons'itution. It was contended that the society can never be static, social ideals and political and economic theories go on changing and every Constitution in order to preserve itself needs to be changed now and then to keep in line with the growth of the society. It was further contended that no generation can impose its w'ill permanently on the future generations. Wise as our founding fathers were, wisdom was not their sole monopoly. They themselves realised it. They knew that in a changing world, there can be nothing permanent and, therefore, in order to attune the Constitution to the changing concepts of politics, economics and social ideas, they provided in Article 368 a machinery which is neither too flexible nor too rigid and makes it possible to so reshape the Constitution as to meet the requirements of the time. According to them by following the form and manner prescribed in Article 368, Parliament can exercise the same power which the Constituent Assembly could have exercised. We have now to consider which one of the two contentions is acceptable.\n\nWhile interpretating a provision in a statute or, Constitution the primary duty of the court is to find out the legislative intent. In the present case our duty is to find out the intenfion of the founding fathers in enacting Article 368. Oridnarily the legislative intent is gathered from the language used. If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of construction and in particular, the history of the legislation-to find out the evil that was sought to\n\n308 SUPREME CXlURT ltBPORTS (1973] Supp. S.c.R.\n\nbe remedied and also in some cases the underlying purpose of the legislation-:-the legislative scheme and the consequences that may possibly flow from accepting one or the other of the interpretations because no/ legislative body is presumed to confer a power which is capable of misuse.\n\nIt was conceded at the bar that generally speaking, the word \"amendment\" like most words in English or for that matter. in any language, has no precise meaning. Unllke \"sale\" or \"exercise\", it is not a term of law. Ir is capable of receiving a wide meaning as well as a . narrow meaning. The power to amend a Constitution in certain context may include even a power to abrogate or repeal that Constitution.\n\nIt may under certain circumstances mean a power to effect. changes within narrow 1:1mits. It may sometime mean a power that is quite\n\nlarge but yet subject to certain lim1tations. To put it shortly, the word ., amendment\" without more, is a colourless word. It has no precise meaning. It takes its colour from the context in which it is used. It cannot be interpreted in vacuo. Few words in English language have .a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of the context. As observed . by Holmes J. in Towne v. Eiser.(') \"A word is not a crystal, transpa- . rent and unchanged; it is the skin of a f1ving thought and may vary , greatly in colour and content according to circumstances and the time :in which it is used\". We must read the word \"amendment\" in Article 368 not in isolaion but as occurring in a single complex instrument, Article 368 is a part of the Constitution. The Constitution confers vari- cius powers on legislatures as well as on other authorities. It also imposes duties on those authorities. The power conferred under Article 368 :is only one such power. Unless it is plain from the constitutional scheme\n\nthat the power conferred under Article 368 is a super power and is capable of destroying all other powers, as contended on behalf of the Union and the States, the various parts of the Constitution must be .construed harmoniously for ascertaining the true purpose of Article 368.\n\nIn our Constitution unlike in the Constitution of the United States -of America the words \"amendment\" and '.'amend\" have been used to\n\nconvey different meanings in different places: In some Articles they are used to confer a narrow power, a power merely to effect changes within prescribed limtts-see Articles 4, 107(2), 111, 169(2), 1%(2), 197(2) and 200. Under Paragraph 7 of the Fifth Schedule as well as Paragraph 21 of the Sixth Schedule to the Constitution, a much larger power to amend those Schedules has been conferred on Parliament.\n\nThat power includes power to amend \"by way of addition, variation or repea£''. Similar is the position under the repealed Article 243(2),\n\n( 1 ) 215 U.S. 418 at 425.\n\n\\ r.\n\n-.'~\n\nXESAVANANDA \"· XERALA (Hegde & Mukherjea, JJ.) 309\n\n.Article 252(2) and 350(5). !tis true that the power to amend con 'fcrred under the Fifth and Sixth Schedules is merely a power to amend\n\nth<ll!e Schedules but if the Constitution-makers were of the opinion that the word \"amendment'' or \"amend\" included within its scope, unless limited otherwise, a power to add, vary, or repeal, there was no pur- POl!C in mentioning in th= Articles or parts \"amend by way of addition, variation or repeal\". In this connection it may also be remembered that the Constituent Assembly amended s. 291 of the Government of India Act, 1935 on August 21, 1949 just a few days before it approved .Article 368 i.e. on September 17, 1949. The amended s. 291 empowered the Governor-General to amend certain provisions of the 1935 Act \"by way of addition, modification or repeal\". From these circumstances, there is prima facie reason to believe that our Constitution makers made a distinction between a mere power to amend and a power to amend by way of \"addition, modification or repeal\". It is one of the accepted rules of construction that the courts should presume that ordinarily the legislature uses the same words in a statute to convey the same meaning.\n\nIf different words arc used in the same statute, it is reasonable . to assume that, unless the context otherwise indicates, the legiislature intended to convey different meanings by those words: This rule of interpretation is applicable in construing a Consnitution as well.\n\nNow that we have come to the conclusion that the word \"amendment\" in Article 368 is not a word .of precise import and has not been used in the various Articles and parts of the Consti.tution to convey always the same precise meariing, it is necessary to take the aid of the other relevant rules of construction to find out the intention of the Constitution makers.\n\nThe question whether there is any impliied limitation on the amending power under Article 368 has not been decided by th'is Court till now. Tha~ question did not come up for consideration in Sankari\n\nPrasad's case.\n\nIn Sajjan Singh's case neither the majority speaking through Gajendragadkar C. J. nor Hidayatullah J; (as he then was) went into that question. But Mudholkar J. did foresee the importance <>f that aspect. He observed in the course of his judgment : ·\n\n\"We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executive to the State legislatures, erected a federal structure and distributed kgislative power between Parliament and the State Legislatures; recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office br affirmations which require those who subscribe\n\n310 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nto them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the Higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic fearut:es of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a premanency to the basic features of the Constitution ?\n\nIt is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, \\n effect, rewriting a part of the Constitlution ; and if the latter, would it be withfo the purview of Article 368\" ?\n\nFor the first time in Golak Nath's case, the contention that the power of amendment under Article 368 is subject to certain inherent and implied limitations was urged. Subba Rao C.J. speaking for himself and four of his colleagues, while recognising 'the force of that contention refrained from pronouncing on the same. Wanchoo J. (as he then was) speaking for himself and two other judges opined that the power under Art4cle 368 is a very wide power but it may not include a power to abrogate the Constitution. He did explain what he meant by \"abrogate the Constitution''. HidayatuLlah J. (as he then was) did not address himself to that question. Bachawat J. side-stepped that question by saying that the impugned amendments did not destroy any basic feature of the Constitution. The only judge who rejected the contention that there are 'inherent or implied limitations on the amending power was Ramaswami J. From the above discussion it is seen that in cases that came up for consideration before this Court in the past several judges did consider the possibility of having some limitation on the amending power under Article 368 though they did not definitely pronounce on that question.\n\nOne of the well-recognised rules of construction is the rule laid down 'in Heydon's case. What was the mischief that the Constitutionmakers intended to remedy? What was the purpose intended to be achieved by the Constitution? To answer this question it is necessary to make a brief survey of our Nationalist movement ever since 1885\n\nnd the objectives sought to be achieved by that movement.\n\nThe objectives underlying our Constitution began to rake their shape as a result of the forces that operated in the nati?nal struggk during the British rule when the British resorted to ab1t; ary acts of oppression such as brutal assaults on unarmed satyagrah1s, internments, deportations, detention without trial and muzzling of the press. The\n\nI \\\"\"-\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 311\n\nharshness with which the executive. operated its repressive measures strengthened the demand for constitutional guarantees of Fundamental Rights. As far back as 1895, the Const!itution of India Bill, prepared by some .eminent Indians, envisaged for India a Constitution guaranteeing to everyone of. our citizens freedom of expression, inviolability of one's ' house, right to property, equality before the law, equal opportunity of admission to public offices, right to present claims, petitions and complaints and right to personal liberty. After the publication of the Montague-Chelmsford Report, the Indian Nanional Congress at its special session held in Bombay In August 1918 demanded that the new Government of India Act should contain \"Declaration of Rights of the people of India as British citizens\". The proposed declaration was to embody among other things, guarantees in regard to equality before the law, protection in respect of life and liberty, freedom of speech and press and right of association. In its Delhi Session in December of the same year, the Congress passed another resolution demanding the immediate repeal of all' laws, regulations and ordinances restricting the free discussion of political questions and conferring on the executive the power to arrest, detain, intern, extern or imprison any British subject in India outside the process of ordinary Civil or Criminal law and the assimilation of the law of sedition to that of England. The Corrunonwealth of India Bill, finalised by the National Convention in 1926 embodied a specific declaration of rights visualising for every person certain rights in terms practicaUy identical with tbe relevant provisions of tbe Irish Constitution. The problems of minorities in India further strengthened the general argument in favour of inclusion of Fundamental Rights in the Indian Constitution. In its Madras Session in 1927, the Indian National Congress firmly laid down tht the basis of the future Constitution must be a declaration of Fundamental Rights. In 1928, the Nehru Committee in its report incorporated a provision for enumeration of such rights, recommending their adop-· Ilion as a part of the future Constitution of India. The Simon Commissiorn rejected the demand on the plea that an abstract declaration of such rights was useless unless there existed \"the will and the mean5 to make them effective\". In 1932, in its KaracHi Session, the Indian National Congress reiterated its resolve to regard a written guarantee of Fundamental Rights as essential in any future constitutional set up in India. The demand for the incorporation of 'the Fundamental R'ights in the constitutional document was reiterated by the Indian leaders at the Round Table Conferences. The Joint Select Committee of the British Parliament rejected those demands. The Sapru Committee (1944-45) was of the opinion that in the peculiar circumstances of India, the Fundamental Rights were necessary not only as assurance and guarantees to the minorities but also prescribing a standard of conduct for the legislatures, governments and the courts. The Committee felt that it was for the Constitution-making body to enumerate\n\n312 SUPIU!ME COURT IU!POllTS ( 1973 j Supp. S.CJl,\n\n fust the list of Fundamental Rights and then to undertake their further &vision into justiciable and non-justiciable rights and provide a suitable .machinery for their enforcement.\n\nThe atrocities committed during the Second World War and the , world wide agitation for human rights, the liberties guaranteed fn the Atlantic Charter, the U. N. Charter and the Declaration of Human Rights by the Human Rights' Commission strengthened the demand for the incorporation of Fundamental Rights in our Constitut.ic>n. The British Cabinet Mission in 1946 recognised the need for a . written guarantee of Fundamental Rights in the Constitution of India. It accordingly recommended the setting up of an advisory committee for reporting, inter alia, on Fundamental Rights. By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly , pledged itself to draw up for India's future governance a Cons.t'itution wherein \"shall be guaranteed and secured to alil the people of India\n\njustice, social, economic and political, equality of status, of opportunity :and before the law; freedom of. thought, expression, belief, faith, wor- • 'ship, vocation, assoc!.iation and action subject to law and public mora- . r. : ' lity and wherein adequate safeguard would be provided for minorities,\n\n\"'.';, backward and tribal areas and depressed and other backward classes\", ·· The close association between political freedom and social justice has 'become a common concept since the French Revolution. Since the end •of the first World War, it was increasingly recognised that peace in the world can be established only if it is based on social justice. The :most modern Constitutions contain declaratlion of social and economic\n\nprinciples, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper condition of omployment for its citizens. In evolving the Fundamental Rights and the Directive Prihciples, our founding fathers, in addition to the xperience gathered by them from the events tltat took :place in other parts of the world, also drew largely on their experience\n\n~,, .in the past. The Directive Principlos and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative dern<>- -cracies will have no meaning without economic and social justice to\n\n1 .the common man. This is a universal experience. Freedom from foreign ' ' rule can be looked \\lpon only as an opporl'Wlity to bril\\g about economic\n\n.and social advancement. After all freedom is nothing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution.\n\nThe Objectives Resolution passed by the Constituent Assembly in January 1947, is a definite landmark. It is a precursor to the preamble to our Constitution. It sets out in detail the objeclives .that were before\n\nKESAVANANDA ti. KERALA (Hegde & Mukheriea, JJ.) 313\n\nour Constitution-makers. Those objectives have now been incorporated in the preamble to our Constitution whlch reads : . . \"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens :\n\nJUSTICE, social, economic and political;\n\nLIBERTY of thought, expression, belief, faith and worship;\n\nEQUALITY of status and of opportunity;\n\nand to promote among them all :t.l\n\nFRATERNITY assuring the dignity of the individual and the unity of the Na ti on;\n\nIN.OUR CONSTJTI)ENT ASSEMBLY this twenty-sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE.\n\nTO OURSELVES THIS CONSTITUTION\".\n\nFrom the preamble it is quite clear that the two primary objectives. that were before the Constituent Assembly were (1) to constitute India into a Sovereign Democratic Republic and (2) to secure to its citizens the rigllts mentioned therein. Our founding fathers, at any rate, most of them had made immense sacrifices for tho; sake of securing those objectives. For them freedom from British rule was an essential step to render social justice to the teeming millions in this country and to. secure to one and all in this country the essential human rights. Their constitut'tonal plan was to build a welfare state and an egalitarian _ society.\n\nNow that we have set out the objectives intended to be achieved by our founding fathers, the question arises whether those very persons could have intended to empower the Parliament, a body constituted under the Constitution to destroy the ideals that they dearly cherished and for which they fought and saccificed.\n\nIf the nature of the power granted is clear and beyond doubt the fact that it may be misused is wholly irrelevant. But, if there is reasonable doubt as to the 'nature of the power granted then the Court has to take into consideration the consequences that might ensue by interpreting the same as an unlimited power. We have earlier come to the .conclusion that the word \"amendment\" is not an expression having a precise cannotation. It has more than one meaning. Hence it is necessary to examine the consequence of accepting the contention of the Union and the States. Therefore let us understand the consequences of conceding the power claimed. According to the Union and the States that power inter alia, includes the power to (1) destroy the\n\n314 SUPREME COURT REPORTS [1973] Supp- S-C.R.\n\nsovereignty of this country and make this count!I\"y a satellite of any other country; (2) substitute the democratic form of government by monarchical or authoritarian form of government; (3) break up the unity of this country and form various independent States; (4) destroy the secular character of this country and substil\\lte the same by a the<>- .cratic form of government; (5) abrogate completely the various rights conferred on the citizens as well as on the minorities; ( 6) revoke the mandate given to the States to build a Welfare State; (7) extend the life of the two Houses of Parliament indefinitely; and (8) amend the amending power in _such a way as to make the Constitution legally or at any rate pract:lcally unamendablt. In fact, their contention was that the legal sovereignty, in the ultimate analysis rests only in the amending power. At one stage, Counsel for the Union and the States had grudgingly conceded that the power conferred under Article 368 cannot be used to abrogate the Constitution but. later under pressure of questioning by some of us they ch:rngod their position and said that by 'abrogation' they meant repeal of the Constituliion as a whole.\n\nWhen they were asked as to what (hey meant by saying that tlhe power conferred under Article 368 cannot be used to repeal the Constitution, all that they said was that while amending the Constitution, at least one clause in the Constirution must be retained though every other clause or part of the Constitution including the preamble can be deleted and some other provlsions substituted. Their submission in short was this that so long as the expression the \"Constitution of India\" is retained, every other article or part of ot can be replaced. They tried to tone down the effect of their claim by saying that, though legally, there is no limitation on the amending power, there are bound to be political compulsions which make it impermissible for Parliament to\n\nexercise its amending power in a manner unacceptable to the people at large. The strength of polit'ieal reaction _is uni:ertain. It depends upon various factors such as the poliitical consciousness of the people, their level of education, strength of the various political organizations in the country, the manner in which the mass media is used and finally the capacity of.. the government to suppress agitations. Hence the peoples' will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra legal forces work in a different plane altogether.\n\nWe find it difficult to accept the contention tli:i.t our Constitutionmakers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must! have known that social, economic and political changes are bound to come with the passage of time and the Co!llltitution must be capa~ of boing so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political\n\nKESAVANANDA v. KEllALA (Hegde & Mukheriea, JJ.) 315\n\n<locument.\n\nIt is essentially a social document.\n\nIt is based <Jn a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change.\n\nThe core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or\n\ndestroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain 'the Constitution' which means the original Constitution. When we speak of the 'abroga.- tion' or 'repeal' of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed.\n\nIf all the basic features of the Constit!ution are repealed and some other provisions inconsistent with those features arc incorporated, it cannot still remain the Constitution referred t.o in Article 368. The personality of the Constitution must remain unchanged.\n\nIt is also necessary to bear in mind that the power to amend the Constitution is conferred on Parliament, a body constituted under the Constitution. The people as such are not associated with the amendment of the Constitution. From the preamble we get that it 'is the people of this country who conferred this Constitution on themselves. The statement in the preamble that the people of this country conferred the O;>nstitution on themselivcs is not open t.o challenge before this Coun. Its factual correctness cannot be gone into by this Court which again is a creature of the Constitution. The faats set out in the preamble have to be accepted by this Court as correct. Anyone who knows the composition of the Constituent Assembly can hardly dispute the claim of the members of that Assembly that their voice was the voice of the people. They were truly the representatives of the people, even though they had been elected under a narrow franchise. The Constitution framed by them has been accepted and worked by the people for the last 23 years and it is too late in the day now to quesfion, as was sought to be done an one stage by the Advocate-General of Maharashtra, the fact, that the people of th.is country gave the Con\"6tution to themselves.\n\nWhen a power to amend the Constitution is given to the people, its contents can be construed to be larger than when that power is given to a body constituted under that Consltution. Two-thirds of the members of the l!Wo Houses of Parliament need not necessarily represent even the majority of the peopk of this country. bur dcctoral system is such that even a minority of voter~ can elect more than two-thirds of the members of the either House of Parliament. That is seen from our\n\n316 SUPREME COURT REPORTS [1973 j Supp SC.R.\n\nexperience in the past. That apart, our Constitution was framed nn the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. It is well known that the representatives of the minorities in the Constituent Assembly gave up their claim for special protection which they were demanding in the past because of the guarantee of Fundamental Rights. Therefore the contention on behalf of the Union and the States that the two-thirds of the members in th'~ two Houses of Parliament are always authorised to speak on behalf of the entire people of this country is unacceptable.\n\nThe President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will \"to the best of llis ability preserve, protect and defend the\n\nConstitution\". Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the superior courts and other important functionaries. When the President of India is compelled to give assent to a constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to \"preserve, protect and defend the Constitution\" or does his oath merely mean that he is to defend the amendmg power of Parliament ? Can the amending power of Parliament be considered as the Constitution? The whole scheme and the \\ structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent.\n\nImplied limitations on the powers conferred under a statute constitute a' general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in generaV terms of even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the general scheme of the statute. Zn Re The Central\n\nProvinces and Berar (Central Provinces and Berar Act No. XIV of 1938(1 ), Sir Maurice Gwyer C. J. observed at p. 42 :\n\n\"A grant of the power In general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implicat; ons of the context, and even by considerations arising out of what appears to be the general scheme of the Act.\"\n\n( 1 ) [1939] F.C.R. p. 18.\n\nIClSAy,\\K~ ll .. ltEM.LA (Hegd' &-Mukherjea, JJ.) 317\n\n1.ord Wright in James v. Commonwetilth '1f Australia(') stated thelaw thus: •\n\n'.\", The questi<m, then,. is one of construction, and in the ultimdtC rc:oort must be determined upon the actual words . used, read not in t1QCt10 but as occurting in a Single complex instrument, in which one part may throw ]light on another. The Constitution has b~ described as the federal compact, . and the construction must hold\n\na balance between all its parts.\"\n\nSeveral of the powers conferred under. our Constitution have been held to be subject to implied limitations though thooc powers arc expressed in general -terms or even in absolute terms. The executive power of the Union is ves!M in the President and he is authorised to exercise the same either directil y or through officers subordinate to him in accordance with the Constitution. Under Art. 75, it is the PreSident who can appoint the Prime Minister and the Ministers are to hold office during his pleasµre. Despite this conferment ci power in general and absolute terms, because of the scheme of the Constitution, its underlying principh and the implications arising from the other provisions in the Constitution, this Court has held in several cases that the President is a constitutional head and the real executive power vests in the Cabinet.\n\nSimilarly though plenary powers of legislation have been conferred on the Parliament and the Stat.e legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the exercise of that power neither Parliament nor the State legisla1!Ures can delegate to other authorities their essential legislative functions nor could they invade on the judicial power. These limitations were spelled out from the nature of the J>OWer conferred and from the scheme of the Constitution. But, it was urged on behalf of the Union and the States that, though there. might be implied limitations on other powers conferred under the Constitution, there cannot be any implied limitations on the amending power. W c see no basis for this distinction. The amending power is one of the powers conferred under the Constitution whatC-Ver the nature of that power might be. That apart, during the course of hearing the learned Solicitor-General had to concede that there are certai.1' Implied limitations .on the amending power itself.\n\nThe. amending power of Parliament in certain respects is subject to the express limitations placed on it bythe proviso to Article 368. Article 368 -prescribes that if Parliament wants to amend Article 54, thr:\n\nArtl.cle dealing with the election of the President, the amendment in question must be ratified by the legislatures of not less than one half of the States. No such express limitation is placed on the amending power of Parliament in respect of Artide 52 which provides that there shall be a President of India. If it be held that Atticlc 52 can be amend•\n\n( 1) [1936] A.C. 578 at 613. 21-36 s.c.. Inclia/73\n\n318 SUPUME IJOUJ.T IU!POllTS ( 11/3] Supp. s.c.a.\n\n'al without romplying with the requirements of the proviso to A¢clc\n\n368, the ljmitation placed on Parliament in respect of the amendment of Article 54 betomes meaningless. When this incongruity was pointed out to the learned Solicitor-Genera~ he conceded that in view of the fact that before Article 54 can be amendetl, the forI!l and the manner laid down In proviso to Articlie 368 has to be followed, it follows as a matter of implication that the same would be the position for the amendment of Article 52. The only other alternative inference is that Article 52 can never be amended ar all. It is not necessary to go into the other implications that may arise from the language of Aiticle 368.\n\nFrom what has betn said above, it is clear that the amending power under Article 368 is also subjeot to implied limitations. The contentio.1 rhat a power to amend a Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in The Bribery Commissioner v. Rana Singhe.(1) The decision of the Judicial Committee in Liyange's case (supra) held that Ceylon Parliament was incompetent to encroach upon the judicial power also lends support to our conclusion that there can be implied limitations on the amending power. '\n\nIn support of the contention that there can be no implied limitations on the amending power, our attention was invited to writings of various jurists of eminence. Most of the writings rebte to the amending power under Article 5 of .the United States Constitution. It is true that in the United States most of the writers, are of opinion that there is no implied limitation on the amending power under the United States Constitution. The Supreme Court of the United States has not spccilicall.y pronounced oo th'is question. The only case in which the question of implied limitation on the amending power under the\n\nUnited States Constitution came up for consideration was Rhotle ls/and\n\nv. Palmer.(') In that case the Supreme Court of United States rejecting the contention that the 18th Amendment-National Prohibition Amendment-was outside the amending power under Article 5 because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did not discuss the question of jmplied limitations on rli.e amending power as such In fact the judgment that was rendered in that case gave no reasons. Only certain\n\nquestions were formulated and answered. It is not clear from the judgment whether the particular limitation pleaded was rejected. or whether the plea of implied limitation on the ameJ:i.ding power was rejected though writers of most text books have taken the view that the court rejected the plea of implied limitations on the amending power. It may be noted that in the United States not a single human\n\n( 1) [1965] A.C. 172. {') 64 L. Edn. 946.\n\nKESAVANANDA v. KllRALA (Hegtie :,- Mukherjea, JJ.) 319\n\nright has been taken away or even its scope narrowed. There the controversy centred round two questions viz. (1) abolition of slavery and\n\n(2) prohibition of sale and consumption of liquor. We w\"11 not be justified in expounding our Constitution on the basis of the controversies relating to those issues. Article 5 of the U.S. Constitution is not similar to Article 368 of our Constitution. In the former Article, there is an express limitation on the amending power i.e. regarding the representation of the States in the Senate. Further the amendment under Article 5 of the. United States Constitution can be proposed either by the Congress or by State Conventions. They may be ratified either by a minimum of 3/4th of the State Legislatures or by Conventions held in at least 3/4th of the States. Whother a particular amendment should be ratified by the State Legislatures or by the State Conventions is entirely left to the discretion of the Congress. As held by the United States Supreme Court, the deciSion of the Congress on that question is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or fundamental features of the Constitution to be ratified by\n\nState Conventions. The scheme of no two Constitutions is similar.\n\nTheir provisions are not similar. The language employed in the amending clauses differ from Constitution to Constiitution . The objectives\n\nlying behind them also are bound to differ. Each country has its own needs, its own philosophy, its own way of life and above all its own problems. Hence in our opinion, we will be clouding the issues, if we allow oursees ID be . burdened either by the writings of the various writers on other Constitutions or by the decisions rendered on the basis of the provisions of the other Constittuions, though Counset on either side spared no efforts to place before us various opinions expressed by various writers as well as the decisions renderod by several courts including the State Courts in United States of America.\n\nThe rule laid down by the Judicial Committee 'in R. v. Burah(') that \"'if what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any court of Justice to inquire further, or to enlarge constructively those conditions and restrictions\" was hcaviliy relied on by Mr. Seervai.\n\nThat decision, however, has been confined to the interpretation of conditional legislations and the rule that it laid down has not been applied while considering the question whether there are any implied limitations on any of the powers conferred under a statute or Constitution.\n\nIt was strenuously urged on behalf of the Union and the States that if we come to the conclusion that there are implied or inherent\n\n(1) (1878) LA. 178.\n\n320 . SUPREME COUR'i' Ui'OllTS [1973] Sup,!). s.c.ll,\n\nlimitafions on the amending power of Parli, iament under Article 368, it would.be: well nigh impossible for Parliament to decide before hand as to what' amendments it could make and what amendments it is forbidden to make. According to the Counsel for the Union and the States, the conceptions of basic elements and fundamental features are illusive conceptions and their determination may differ from judge to judge and therefore we would be making the task of Parliament impossible if we uphold the content>ion that there are implied or inherent limitations on the amending power under Article 368. We are unable to accept this contention. The broad contours of the basic elements. or fundamental features of our Constitution are clearliy delineated in the preamble. Unlike in most of the other Constitutions, it is comparatively easy in the case of our Constitution to discern and dett:rmine the basic clements or the fundamental features of our Constitution. For doing so, one has only to look to the preamble. It is true that there are bound to be border line cases where there can be difference of opinion. That is so in all important legal: questions. But the courts generally proceed on the presumption of constitutionality of all legislations. The presumption of the consoitutional validity of a statute will also apply to constitutional amendmenm. It is not correct to say that what is difficult to decide does not exist at all. For that matter, there are no clear guidelines before the Parliament to determine what arc essential legislative functions which cannot be delegated, what legislations do invade on the judicial power or what restrictions are reasonable restrictions in public interest under Article 19(2) to 19(6) and yet by arid large the legislations made by Parliament or the State slatures in those respects have been upheld by courts, No doubt, there were. occasions when courts were constrained to strike down some legislations as ultra vires the Constitution. The position as regard the ascertainment of the basic elements or fundamental features of the Constitution can by no means be more difficuh than the difficulty of the legislatures .to \"determine before hand the constitutionality of legislations made under various other heads. Arguments based on the difficulties hikely to be faced by the legislatures are of very little importance and they are essentially arguments against judicial review.\n\nLarge number of decisions rendered by collrts in U.S.A., Canada, Australia, United .Kingdom, C.cylon and Ireland, dealing with the question of 'implied limitations on the amending power and also as regards the meaning of the word \"amendment\" were read to us at the hearing. Such of those that are rclevan~ have been considered by the learned Chief Justice in the judgment just now delivered. We entirely agree with the views expressed by him and we cannot usefully add to the same.\n\nIt was contended on behalf of the Union and the States t.bat, the Constitution should not be treated as something sacred. It should be regarded just in the same way as we regard other human institlitions.\n\nKESAVANANDA I/, _KEJIALA (Hegde & Mukherjea, JJ.) 321\n\nIt should be possible tb alter every part of it from time to time so as to bring it in harmony with the new and changed conditions. In support of this contention we were invited to the writings of the various writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston\n\netc. It was further urged that the Constituent Assembly knowing that, it will disperse, had arranged for tho recreation of a Constituent A; sembly, under Article 368 in order to so shape the Constitution as to meet the demands of the time. However, al!tractive these theories may sound in the abstract, on a closer examination, it will be seen that they are fallacious, more part'icularly in a constitutionat set up like ours. We have earlier noticed hat under our electoral system, it is possible for a par'.y to get a 2/3rd majority in the two Houses of Parliament even if that party does not get an absolute majority of votes cast at the .electlion. That apart, when a party goes to election, it presents to the electoiate diverse programmes and holds out various promises. The programmes presented or the promises held out need not necessarily include proposals for amending the Constitution. During\n\nthe General Elections to Parliament in 1952, 1957, 1962 and 1967. no proposal to amend the Constitution appears to have been placed before the electorate. Even when proposals for amendment of. the Constitution arc placed before the electorate as was don~ by the Congress Party in 1971, the proposed amendments are not usually placed before the\n\n.. electorate. Under these circumstances, the claim that the electorate had\n\n.given a mandate to the party to amend the Constitution in any parti- .cular manner is unjustified. Further a Parliiamentary Democracy like ours functions on the basis of the party system. The n:iechanics of operation of the parry. system as well as the system of Cabinet government are such that the people as a whole can have little control in the matter of detailed law-making. \" ........ on practically every issue 'in the modern State, the serried millions of voters cannot do more . than accept or reject tl1e solutions offered. The stage is too vast to permit of the nice shades of quantitative distinction impressing themselves upon the public mind. It has rarely the lieisure, and seldom the .information, to do more than indicate the general tendency of its will.\n\nIt is. in the process of law-making that the subtler adjustments must be dfectcd.\" (Laski: A Grammar of Politics; Fifth Edn. pp 313-314).\n\nThe assertion t11at either the majority of. members of Parliament 'or even 2/3rd members of Parliament speak on behalf of t11e nation\n\nhas no basis in fact. Indeed 'it may be possible for the ruling party to carry through important constitutional amendments even after it has\n\nlost the confidence of the electorate. The members of Lok Sahha are ekcted for a term of five years. The ruling party or its membrs may -or may not enjoy the confidence of the electorate throughout their tm!'s\n\n<if office. Therefore it will not be correct to say that whenever Parha- .ment amends the Constitution, it must be held to have don~ it as desired by the people.\n\n322 sUPIU!Mll cou&T UPOJ.TS L1973] Supp. s.c.11.\n\nThere is a further fallacy in the contention that whenever Constitution is amended, we should presume that the amendment in question was made in order to adapu the Constitutlon to respond to the growing needs of the people. We have earlier seen that by using the amending power, it is theoratically p0ssible for Parliament to extend its own life indefinitely and also, to amend the. Constitution in such a manner as to make it cither legally or practically unamcndable ever afterwards.\n\nA power which is capable of being used against the people themselves cannot be considered as a power exercised on behalf of the people or in their interest. ·\n\nOn a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic clements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of' the country, the essential features of die individual freedoms secured to the citizens. Nor has the Parliamen11 'the power to revoke the mandate to build a Welfare State and egalitarian society.\n\nThese limitations arc only illustrative and not exhaustive. Despite these limitations, however, there can be no question that th~ amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligatiOhS imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a W e.lfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way.\n\nHuman freedoms are lost. gradually and impcrecpti\"bly and their destruction 'is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal.\n\nVigilance' is the price that we like every other democratic society ha\"re to pay to safeguard the democratic values enshrined in our Constitution.\n\nEven the best of governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once IPst is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our rorutirutional plan is to eradicate poverty without dcstructi-On of individual freedoms.\n\nIn the result we uphold the contention of Mr. Palkhivala that the word \"amendment\" in Article 368 carries with it certain limitation and, further, that the power conferred under Article 368 is subject to certain implied limitations though that power is quite large.\n\nKESAVANANDA 11. KEMLA (Hegtle & Muklier; ea, JJ.) 323\n\nNext, we shall take up for consideration the contentions of Mr. Palkhivala regarding the validity of the 24th, 25th and 29th Amendments.\n\nIt was contended on behalf of the petitioners that in enacting the 24th Amendment Aot, the Parliament has exceeded its powers. It has purported to enlarge its limited power of amendment into an unlimited power, by the exercise of which it can damage or destroy the basic clements or fundamental features of the Constitution. It was said that such an exercise is an unla..yfu\\ usurpation of power. Consequently, the 24th Amendment Act. is liable to be struck down. To pronounce on that contention, it is necessary to examine at the very outset whether the 24th Amendment Act has really enlarged the powers of the Pa11iament. If we come to the conclusion that it has not enlarged the power of the Parliament, as we think it has not, the various contentions of Mr. Palkhivala do not arise for consideration.\n\nNow let us sec what is the true effect uf the Constitution 24th Amendment Act, 1971. That Act amended Article 13 and Article 368.\n\nBy that Act one more sub-article has been added to Article 13 viz. sul>-article ( 4) which reads thus :\n\n\"Nothing in this article shall apply to any amendment of this Constitution made under Article 368\".\n\nSection 3 of that Act which amends Article 368 reads . \"Article 368 of die Constitution shall be renumbered as clause (2} thereof, and- ( a) for the marginal heading to. that article the following marginal heading shall be substituted, namely :- \"Power of Parliament to amend the Constitution and procedure therefor\".\n\n(b) before clause (2) as so-renumbered, the following clause\n\nshall be inserted, namely : \"Notwithstanding anything in the Constitution, Parliament\n\nmay in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitu'\n\ntion in accordance with the procedure laid . down in this article.\"\n\n(c) in clause (2) as so re-numbered, for the words \"it shall be\n\npresented to the President for his assent and upon such as..cnt being given to the Bill\", the words \"it shall be presented to the President who shall give his assent to the Bill and thereupon\" shall be substituted;\n\n.324 SUPREME couu REPOP.TS [1973] Supp. s.c.11..\n\n( d) after cbuse (2) as so re-numbered, the following clause shall be inserted, namely-\n\n\" (3) Nothing in article 13 shall apply to any amendment made under this Article.\"\n\nThe material changes effected under this Act are :\n\nl. Addition of clause ( 4) to Article 13 and clause (3) to Article\n\n368;\n\n2. Change in the marginal heading;\n\n3. Specific mention of the fact that the power is conferred on the Parliament to amend the Constitution;\n\n4. The power conferred on the Parliament is claimed to be a constituent power;\n\n5. That power is described as a power to \"amend by way of\n\naddition, variation or repeal of any provision of this Constitution\" and\n\n6. Making it obligatory for the President to give assent to the Bill amending the Constitution.\n\nIn our opinion the 24th Amendment has nor made any material change in Article 368 as it stood originally. It is true the original Article did not say specifically that the power to amend rested with Parliament.\n\nOn the other hand, while setting out the procedure of amendment, it referred to the functions of the two Houses of Parliament and the President. Because of the fact that Parliament was not specifically referred to in Article 368, as it originally stood, the learned Advocate General of Maharashtra wanted us to spell out that the power confefred under Article 368, as it originally stood was not conferred on Parliament as such but on the two Houses of Parliament. We have earlier rejected that contention. We agree with the learned Attorney General that the power in question had been conferred on Parliament.\n\nArticle 79 says that \"There shall be a Parliament for the Union, which shall consist of the President and two Houses to be knownrespeetively as the Council of States and the House of the People\". Whether an enactment refers to the three components of Parliament separately or whether all the three of them are compendiously referred to as Parliament, in law it makes no difference. In Sankari Pr1uad's case, in Sajja11 Singh's case as well as in Golak11ath's case, each one of the Judges who delivered judgments specifically mentioned that the power to amend the Constitution was vested in Parliament though there was difference of opinion on the question whether that power could be traced to Article 368 or Article 248 read with Entry 97 of List I. There is no ground for taking a different view. •\n\nKESAVANAN)>A 11. KEMLA (/;!egde & Mukherjea, JJ.) 325\n\nWe have already come to the conclusion that Article 368 as it originally stood comprehended both power as well as procedure to\n\n:imend the Constitution. Hence the change effected in the marginal note has no signilicance whatsoever. The marginal note as it stood earlier was in a sense incomplete. The expression 'constituent .power' is used to describe only the nature of the power of amendment. Every amending power, however large or however small it might be, is a fact of a constituent, power. The power, though described to be 'constituent power', still continues to be an 'amending power'. The scope irid ambit of the power is essentially contained in the word 'amendment'. Hence, from the fact that the !)CW article specifically refers to that power as a constituent power, it cannot be nnderstood that the contents of the power have undergone any change. The power conferred under the original Article being a limited power to\n\namend the Constitution, the constituent power to amend the Constitution referred to in the amended Article must :ilso be held to carry with it the limitation to which that power was '1!bject earlier. There is also no signilicance in the substitution of the expression \"amend by way of addition, variation or' repeal of any provision of. this Constitution\" found in the amended Article in th, e place of the expression \"amendment of the Constitution\" found in the. original Article. Every power to amend a statute must necessarily include within itself some power to make addition, variation or repeal of any provision of the statute. Here again, the power conferred under the original Article being a limited one, that limitation will continue to operate' notwitflstanding the change in the phraseolc:>gy. The words 'addition, variation or repeal' only prescribe the modes or . manner by' which an 'amendment' may be made, but they do not determine the scope of the . p0wer of 'amendment'. The original Miele 368 mentioned that after the bill for amendment of the Co.nstitution is passed. by the two HoUses of Parliament in the manner prescribed in Article 368 \"it shall be presented to the President for .his. assent and upon such assent being given io the Bill, the Constitution slµJJ stand amended in accordance with the terms of the bill\". The amended Article makes • change. It prescribes that when the Bill is presented to the Pred, ent, , he \"shall give his assent to the Bill\". Some comment was made t the bar abounhc inappropriateness of commanding ! the President to. give his assent. to the Bill. That is 'a question of propriety. The substance of the matter is that when the Bill is presented to. the President, he shall not withhold his assent. This change cannot be said to have damaged or destroyed any basic element of the ConstitutiGn. In fact Article 111 which deals with the assent to' the Bills specificall~ prescribes that when a money Bill, after having been passed by the HoUses of. Parliament is presented to the President he \"shall not withhold. assent therefrom\". Hence it cannot be said that the change made in. Article 368 relating to the assent of the Presicjenr\n\n 326 suPREME coullT J1.EPORTS [1973) Supp. s.cJt.\n\nhas any great importance in the scheme of our Constitution. In fact under our Constitution the President is only a constitutional head.\n\nOrdinarily he has to act on the advice of the cabinc-t. There is no possibility of the Constitution being amended in opposition to the wishes of the cabinet.\n\nThe only change that remains to be considered is as to the exclusion of the application of Article 13 to an amendment of the Constitution. We have earlier come to the conclusion that Article 13 as it stood earlier did not bar the amendment of the Constitution.\n\nArticle 13(~) and 368(3) make explicit what was implicit.\n\nIt was contended that by means of the 24th Amendment Parliament intended to and in fact purported to enlarge its amending power.\n\nIn this connection reliance was placed on the statement of objects and reasons attached to the Bill which resulted in the 24th Amendment.\n\nThe power of Parliament docs not rest upon its professed intention.\n\nIt cannot acquire a power which it otherwise did not possess. We are unable to accept the contention that clause ( e) to the proviso to Article 368 confers power on Parliament to enlarge its own power. In our judgment the power to amend the Constitution as well as the ordinary procedure to amend any pan of the Constitution was and is contained in the main part of the Article. The proviso merely placts further restrictions on the procedure to amend the articles mentioned therein. Clause ( e) to the proviso stipulates that Article 368 cannot be amended except in the manner provided in the proviso. In the absence of that clause, Article 368 could have been amended by following the procedure laid down in the main part. At best clause ( e) of the proviso merely indicates that Article 368 itself comes within its own purview. As we have already seen, the main part of Article 368. as it stood earlier, expressly lays down only the procedure to be followed in amending the Constitution. The power to amend is onl:r implied therei11.\n\nIt is difficult to accept the contention that an implied power was impliedly permitted to be enlarged. If that was so, there was no meaning .in limiting that power originally. Limitation on the power to amend the Constitution would operate even when Article 368 is amended. A limited power cannot be used to enlarge the same power into an absolute power. We respectfully agree with the observation of Hidayatullah J. (as he then was) in Golaknath's case that what Parliament cannot do directly, it also cannot do indirectly. We have earlier heW that the \"amendment of this Constitution\" means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but a part of the Constitution. Hence, the mere fact\n\nKESAVANANDA v. KllALA (Hegde & Mukner; ea, JI.) 327\n\nthat the mover of the Z4th Amendment Act, in the Statement of Objects and Reasons laid claim to certain power docs not go to show that Parliament either endorsed that claim or could have conferred on itself such a power. It must be deemed to have exercised only such power as it possessed. It is a well-accepted rule of construction that if a provision is reasonably capable of two interpretations the Court must accept that interpretation which makes the provsion valid.\n\nIf the power conferred on Parliament to amend the Constitution under Article 368 as it stood originally is a limited power, as we think it is, Parliament cannot enlarge the scope of that power-sec Attorney General for the State of New South Wales v. The Brewery Employees\n\nUnion of New South Wales;(1) Ex Parte Walsh and fohnson; In Re Yates;(\") and Australian Communist Party v. The Commonwealth.(')\n\nFor the reasons mentioned heretofore, the scope of Parliament's power to amend the Constitution or any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368.\n\nThe 24t11 Amendment made explicit, what was implicit in the unamended Article 368. In this view of the matter the .24th Amendment must be held to be valid.\n\nThis takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine the scope and effect of that Act for deciding the question whether that Act or any one of its provisions can be held to be outside the amending power of the Parliament. That Act has three sections. We are not concerned with the first section which sets out the short title. Clause (a) of the second section amends Article 31(2). Clause (b) of that section incorporates into the Constitution Article 31(2B). Sectibn 3 introduces into the Constitution a new Article viz. Article 31C.\n\nLet us first take up the newly substituted Artie.le 31 (2) in the place of the old Article 31(2) and examine its scope. To do so, it is\n\nnecessary to examine the history of that Article.\n\nArticle 31 (2) has undergone several changes.\n\nAs originally enacted it read thus :\n\n\"No property, movable or immovable, including any interest in,. or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or\n\n( 1) 6, C.L.R. 469.\n\n( 2) 37, CL.R. 36 at p. 67.\n\n( 1) 83, c.LR. p I.\n\n328 SUP:REME COURT Bl!PORTS (1973] Supp. S.c.tl.\n\nsuch acquisition, unless the law provides for compensation for the\n\nproperty taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.\"\n\nThat Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to compare Article 31 (2) as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment Act. Hence we shall quote them side by side.\n\nArticle 31 (2) as substituted by the 4th Amendment Act 1955\n\nNo pnperty shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for .compen\"1tion for the property so acquired or requisitioned and either\n\nfixes the amount of the compensation or specifics the principles on which and the manner in which, the compensation is to be dctcr- Iliined and given; andno such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.\n\nArticle 3 (2) as susbtituted by the 25th Amendment. Act 1971\n\nNo property hall be compul•orily acquired Or requisitioned save for a public purpose and save by authority of a law' which provides \"for acqui1ition Oi' reqtiisi tioning of the property for an amount which may be fixed by such iaw or which may be determined in accordance with ruch principles and given in suchmal)ner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is n0t adequate or that the whole or any part of such amount is to be given otherwise than in ash:\n\nProvided that in making any law providing for the compulsory acquisition of any property of an ed ... catioanl institution established an, d administered by i minority, referred to clause (I) of article SO, the State shall eusure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed uder that clause.\n\n.KESAtANAND.\\ fl. KERALA. (Htgdt & M•k~, JJ.) 32~\n\nFor finding out the true Scope of Atticle 31(2), as it stands now, the learned Advocate General of Maharashlra as wdl as the Solicitor General has taken \\Is duough the history of this Article. Accordllig to them the .Article as it stand~ nOIV truly represents the intr.ntiou ci the Constitution makers. In support of that contention.· we were asked to go through the Constituent Assembly debates relating to that article. In particul:u-, we were invitied to go through the speeches niade by Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambcdkar. In our opinion. it is impermissible for us to do so.\n\nIt is a wdl settled rule of construction that speeches made by members of a kgislaturc m the course of debates rdating to the enactment of a statute cannot be used as aids for. interpreting any of the provisions of the statute. The same rule is applicable when we arc called upon to interpret the provisions of a Constituticn. Court ruled in Stllte of Trtltlflllcort: Cochin (JfZd ors. v. Bombay Co. Ltd.(') that speeches made by the members of the Constituent Assembly in the coorsc of the debates on the draft Constitution cannot be used as aid for interpreting the Constitution. In the course of his judgment Patanjai Sastri C.J. speaking for the Constitution Bench observed at p. 1121 af. the Report :\n\n\"It remains only to point out that the use made by the learned Judges below of the speeches made l>y the members of the Constil; Ucnt Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian Statutes-sec Administrator-General of\n\nBengal v. Prem Nath Mallick [(1895 22 I.A. 107, 118]. The reason behind the rule was explained by one of us in Gopalan's case(') thus:\n\n\"A speech made in the course !If the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in\n\naccord\", or as it is more tersely put. in a American case-\n\nThose who did not speak may not have agreed with those who did; and those who spoke might differ from each other- U nited States v. Trans-Missouri Freight Association.\"(')\n\n( 1 ) [1952] S.C.R. 113.\n\n( 2 ) [1950] S.C.R. 88, at 144.\n\n(') 169. U.S. 290, 318.\n\n330 SUPREME COURT llP<>llTS [1973) Supp. s.~.\n\nNo deci; ion of this Coun dissenting from the view taken in the above case was brought to our notiec. But it was urged that this Court bad ignored the rule laid down in Bombay Co.'s case (supra) in Go/aknath's case as well as in what is popularly known as the Priuy\n\nPurse(') case. We do not think that this statement is accurate. In Golaknath's case, Subba Rao C.J. referred to certain portions of speeches made by Pandit Nehru and Dr. Ambedkar. But he made it clear at p. 792 of the Report, the specific purpose for which he was referring to those speeches. This is what he stated :\n\n\"We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not with a view to interpret the provisions of Art. 368 which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution.\"\n\nBachawat J. in the course of his judgment also referred to some -0f the speeches made during the debates on Article 368. But before doing so this is what he observed at p. 922 of the report :\n\n\"Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors. v. The Bombay Co. Ltd.\n\nAccordingly I do not rely on them as aids to construction. But I propose to refer to them, as Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambcdkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the speeches .. \"\n\nFrom these observations, it is cleai that the learned judges were not referring to the speeches as aids for interpretin~ any of the provisions of the Constitution.\n\nNow, let us turn to this Court's Judgment in the Privy Purse casi:.\n\nShah J. (as he then was) in the course of his judgment {at p. 83 of the report) quoted a portion of the speech of the Home Minister Sardar Patel not for the purpose of interpreting any provi- >ion of the Constitution but for showing the circumstances which necessitated the giving of certain guarantees to the former ruler.\n\nThat speech succinctly sets out why certain guarantees had to be given to the rulers. Hence it is not correct to say that Shah J. speaking for himself and six other Judges had used the speech of Sardar Patel\n\n( 1 ) (1971) 3, S.C.R. 9.\n\nKESAVANANJ>A tJ. KllALA (Hegde & Mukheriea, JJ.J 331\n\nin aid of the construction of any of the articles of the Constitution It is true Mitter J. in his dissenting judgment (at p. 121 of the report) used the speech of Shri T. T. Krishnamachari i.n aid of the con.struction of Art. 363 but the learned judge no where in his judgment discussed the question whether the speeches made by the members of the Constituent Asembly were admisible in aid of interpreting any provision of the Constitution.\n\nBefore concluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. H. S.\n\nDhillon.(') In that case this Court was called upon to decide whether the provision in the Wealth Tax Act, 1957 providing for the levy of tax on the capital value of agricultural property were constitutionally sustainable.\n\nBy a majority of four against three, this Court upheld the levy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity of the provision on an examination of the relevant provisions of the Constitution as well as the decided cases referred to some of the speeches made during the debates in the Constituent Assembly in support of the conclusion already reached by him. Before referring to those speeches this is what the learned judge observed at p. 58:\n\n\"We are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended.\"\n\nFrom this it is clear that the learned Judge did not seek any aid from the speeches for the purpose of interpreting the relevant provision. It is necessary to note that the learned judge did not dissent from the view earlier taken by the Court in Bombay Co. Ltd.'s case (supra).\n\nHence the law as laid down in Bombay Co.' s case is binding on us and its correctness was not challenged before us.\n\nThe learned Advocate General of Maharashtra is right in his contention that for finding out the true scope of Article 31(2), as it stands at present, it is necessary for us to find out the mischief that was intended to be i:emedied by the present amendment. In other words, we must find out what was the objective intended to be achieved by that amendment. The original Article 31 (2) first came up for consideration by this Court in State of West Bengal v. Mrs. Bela Bannerjee and ors.,( 2) wherein Patanjali Sastri C.J. speaking for the Court observed :\n\n\"While it is true that the legislature is given the discretionary power of laying down the principle which should govern the determination of the amount to be given to the owner for the\n\n( 1 ) [19721 2 S.C.R. 33.\n\n( 2) [1954) S.C.R. 558.\n\n332 suPREME OOOJ.T lll!POKTs [1973] Supp. s.c.1t.\n\nproperty appropriated, such principles must ensure that what is determined as payable niust be compensation, that is, a. just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the clements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable L.sue to be adjudicated by the Court.\n\nThis, indeed, was not disputed.\"\n\nWe are told that Article 31(2) came to be amended by means of the 4th Amendment Act in view of the decision of this Court in Mrs. Bela Banerjee's ease. The scope of the article as amended by the 4th Amendment Act was considered by this Court in P. Vazraydu Mudaliar v. Spedal Deputy Collect<>r, Madras and anr.(') Therein Subba Rao J. (as he then was) speaking for a bench consisting of himself, Wanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed (at p. 626) :\n\n\"The fact that Parliament used the same expressions namely \"compensation\" and \"Principles\" as were found in Article 31 before the Amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee' s case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of w~ the owner has been deprived of or specify the principles for the purpose of ascertaining the \"just equivalent\" of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for compensation so defined, it would have used other expressions like \"price\", '' coruideration\" etc.\"\n\nProceeding further the learned judge observed :\n\n\"The real difficulty is, what is the effect of ouster of jurisdiction of the court to question the law on the ground that the \"compensation\" provided by the law is not adequate ? It will be noticed that the law of acquisition or requisition is not wholly immune from scrutiny by the Court. But what is excluded from the court'• jurisdiction is that the said law cannot be questioned on the ground that the compensation provided by that law is not adequate.\n\nIt will further be noticed that the clause excluding the jurisdiction\n\n( 1 ) [1965] I S.C.R. 614.\n\n• .\n\nKESAVANANDA ti. KERALA (Hegde & Mukheriea, JJ.) 333\n\nof the Court also used the word \"compensation\" indicating thereby that what is excluded from the court's jurisdiction is the adequacy of the compensation fixed by the legislature. The argument that the word \"compensation'' means a just equivalent for the property acquired and, therefore, the court can ascertain whether it is a \"just equivalent\" or not makes the amendment of the Constitution nugatory. It will be arguing in a circle.\n\nTherefore, a more reasonable interpretation is that neither the principles prescribing the \"just equivalent\" nor the \"just equivalent\" can be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate ; a law is made to acquire a house, its value at the time of acquisition has to be fixed ; there arc many modes of valuation namely estimate by the engineer, value reflected by comparable sales, capitalisation of rent and similar others.\n\nThe application of different principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value.\n\nBut nonetheless they arc principles on which and the manner in :which compensation is determined. The court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the question of adequacy.\n\nOn the other hand, if a law lays down principles which are not relevant to the property acquired'\n\nor to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by Article 31(2) of the Constitution .... In such cases the validity of the\n\nprinciples can be scrutinized. The law may also prescribe a compensation which is illusory it may provide for the acquisition of a property worth lakhs of rupees for a paltry sum of Rs. 100. The question in that context does not relate to the adequacy of the compensation for it is no compensation at all The illustrations given by us are not exhaustive. There may be many others falling on either side of the line. But this much is clear. If the compensation is illusory or if the principles prescribed are irrelevant to the\n\nvalue of the property at or about the time of its acquisition, zt can be said that the legislature committed a fraud on power, and therefore, the law is bad. It is a use of the protection of Article 31 in a manner which the Article hardly intended.\" (emphasis supplied).\n\nThe principles that emerge from the decision in Vairavelu's case are: (I) compensation means iust equivalent of the value of the property acquired ; (2) principles prescribed must be principles which provide for compensation ; (3) adequacy of compensation fixed or to.\n\n22-36 s. c. India/73\n\n334 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.\n\nbe determined on the basis of the principles set out cannot be gone into by the court ; ( 4) the principles fixed must be relevant to the property acquired or to the value of the property at about the time it is acquired ; (5) the compensation fixed should not be illusory and\n\n(6) courts have power to strike down a law on the ground of fraud on power if the principles fixed are irrelevant or if tbe compensation granted is illusory.\n\nThe next decision cited to us is the decision of this Court in Union of India v. Metal Corporation of India Ltd. and anr.(1 ) It is a decision of a Division Bench consisting of Subba Rao C.J. and Shelat J. As that decision was overruled by this Court in State of Guiarat v. Shanti/al Mangaldas and ors.,(') it is not necessary to refer to its ratio.\n\nThis takes us to the decision of this Court in Shanti/al' s case. This case related to the acquisition of some landed property on behalf of the Borough Municipality of Ahmedabad for maloing town planning scheme under the Bombay Town Planning Act, 1955.\n\nSections 53 and 57 of that Act fixed certain principles for the determination of compensation for the land acquired. The High Court of Gujarat\n\ndeclred that those provisions were ultra vires in so far as they authorised the local authority to acquire land under a Town Planning Scheme and as a corollary to that view declared invalid the City Wall ImpNvm; tent Town Planning Scheme No. 5 framed in exercise of the powers conferred under the Act. In doing so they purported to follow the decis, ion of this Court in Vajravelu M uda/iar' s case. A Constitution Bench of this Court reversed the decision of the Gujarat High Court. In that case Shah J. speaking for the Court elaborately reviewed the earlier decisions of this Court bearing on Article 31(2).\n\nAfter doing so, he observed at p. 365 of the report :\n\n\"Reverting to the amendment made in cl. (2) of Article 31 by the Constitution (Fourth Amendment) Act, 1955, it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the Legislature for determination is not justiciable. It clearly follows from the terms of Article 31 (2) as amended that the amount ' of compensation payable if fixed by the Legislature, is not justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy of compensation. If compensation fixed by the Legislature-and by the use of the expression \"compensation\" we mean what the legfrlature\n\n(1) (1967) 1, S.C.R. p. 255.\n\n( 2) (1969) 3, S.C.R. 341.\n\nKESAVANANDA tJ. KERALA (Hegde & Mukheriea, JJ.) 335\n\niustly regards as proper and fair recompense for compulsory expropriation of property and not something which by abuse of legislative power though called compensation is not a recompense at all or is something illusory-is not justiciable, on the plea that it is not a just equivalent of the property compulsorily acquired is it open to the courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining compensation do not award to the expropriated owner a just equivalent ?\n\nIn our view, such an enquiry is not open to the Court under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensa(ion determined by the application of those principles is not a just equivalent. The right declared by the Constitution guarantees that compensation shall be given before a person is compulsorily expropriated of his property for a public purpose. What is fixed as compensation by statute, or by the application of principles specified for determination of compensation is guaranteed ; it does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be rega,.ded as compensation m11st be upheld by the Co11rts, for, to do so, would be to grant a charter of arbitrariness and permit a device to defeat the constitutional guarantee. But compensation fixed or determined on principles specified by the Legislature cannot be permitted to be challenged on the somewhat indefinite plea that it is not a just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of compensa- 1ion, but not on the plea that what is awarded as a result of the application of those principles is not iust or fair compensation. A challenge to a statute that the principles specified by it do. not award a just equivalent will be in clear violation of the constitutional declaration that inadequacy of compensation provided is not justicabk\". (emphasis supplied)\n\n. 'fhc Advocate Geera) of Maharashtra contended that if only this dec1s!On had not been md1rectly overruled by the Bank Nationalisation case (R. C. Cooper v. Union of India},(') there would have been no occasion to further amend Article 31(2). That being so, it is necessary to find out dearly as to what 'are µie pinciplcs enunciated in this\n\n( 1) [l!l'/O'J 3 S.c.R. 530.\n\n336 SUPREMF COURT REPORTS [1973] Supp. s.c.R.\n\ndecision. This decision firmly laid down that any arbitrary fixation of recompense is liable to be struck down by the court as an abuse of legislative power. It further laid down that the principles laid down may be challenged on the ground that they are not relevant for the purpose of determining the recompense payable to the owner of the property acquired. If the recompense fixed or determined is either not arbitary or illusory or if the principles fixed are relevant to the purpose of acquisition or requisition of the property in question, the courts cannot go into the question of adequacy of the payment.\n\nThen came the Bank Nationalisation case. The majority judgment in that case was delivered by Shah J. (~ he then was).\n\nIn that judgment he referred somewhat extensively to the decision in Shanti- /al Mangaldals case and other cases rendered by this Court. He did not purport to deviate from the rule laid down in Shantt'lrd's case.\n\nThe ratio of that decision relating to Article 31 (2) is found at p. 598 of the report. The learned judge observed :\n\n\"Both the lines of thought (in Vajravclu's case and Shantilal's case) which converge in the ultimtc result, support the view that the principle specified by the law for dC':l\"llllination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compcnsa.tion for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravclu Mudaliar's case or in Shaotilal Mangaldas' s case, the Act in our judgment is liable to be struck down as it fails to provide Ii<> the expropriated banks compensation determined according to relevant principles\".\n\nProceeding further the !carnal judge observed at p. 599 :\n\n''We arc unable to hold that a principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. If that view be expressed, the Parliament will be invested with a charter of arbitrariness and by abuse of legislative process, the constitutional guarantee of the right to compensation may be severely impaired. The principle specified must be appropriate to the determination of compensation for the particular class of property sought to be acquired.\n\nIf scvcral principics are appropriate and one is selected for determination of the value of. the property to be acquir.:d, sc:kction of that principle to the exclusion of other principles is not open to the challenge foe the selection must be left to the wisdom of the Parliament\"\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 337\n\nIt is clear from the passages we have quoted above that this case also emphasised that the power of the Parliament to fix the compensation for the property acquired is not an arbitrary power. Further, the\n\nprinciples prescribed for determining the compensation must be relevant to the subject matter of acquisition or requisition. That decision also laid down that both the questions whether the compensation has been fixed arbitrarily or whether the principles laid down. are irrelevant are open to judicial review.\n\nLet us now examine Article 31 (2) as it stands now in the light of the decisions already referred to. The only material changes made in that Article under the 25th Amendment Act are :\n\n(1) in place of the word 'compensation', the word 'amount' has been used and\n\n(2) an additional clause viz. \"or that the whole or any part oc\n\nsuch amount is to be given otherwise than in cash\" has been added.\n\nWe are not concerned in this case as to the effect of the additional clause. No arguments were advanced on that aspect. All that we are concerned with is as to what is the effect of the substitution of the word \"amount\" in place of the word \"compensation\". As seen earlier, the word \"compensation\" has been interpreted in the various decisions referred to earlier as \"just equivalent\" of the value of the property taken. That concept has now been removed. In other respects, the Article has not been altered. It remains what it was. We have earlier noticed that the decisions of this Court have firmly laid down that while examining the validity of law made under Article 31(2) as it stood after it was amended under the 4th Amendment Act, it was open to the Court to go into the questions whether the compensation had been fixed arbitrarily and whether the same was illusory. Those decisions further ruled that the Court can go into the relevant of the principles fixed.\n\nParliament would have undoubtedly known the ratio of those decisions.\n\nThat is also the lt'gal presumption. Hence if the Parliament intended to take away the judicial review in any respect other than relating to the adequacy of the amount fixed, it would have expressed its intention by appropriate words. We find no such words in the Article as it stands. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the concept of compensation. That this is the mischief which the 25th Amendment seeks to remedy by amending Article 31 (2) is also cle:ir from the language of the amended Article itself. It says that the law shall not be called in question on the ground that the amount fixed\n\n338 SUPREME COURT REPORTS (1973) Supp. S.C.Jt.\n\nor determined is not adequate. What is an adequate amount ?\n\nAD amount can be said to be adequate only when the owner of the property i.s fully compensated, that is when he is paid an amount which is equivalent in value to the property acquired or requisitioned. And that is also what is connoted by the concept of 'compensation' as interpreted by this Court. Therefore, stated briefly, what the 25th Amendment makes non-justiciable is an enquiry into the question whether the amount fixed or determined is an equivalent value of or 'compensation' for the property acquired or requisitioned.\n\nThe word \"amount\" is a neutral word. Standing by itself, it has no norm and is completely colourless. The dictionary meaning of the word appropriate to the present context is \"sum total or a figure\". We have to find out its connotation from the context. In so doing, we have to bear in mind the fact that Article 31 (2) still continues to be a fundamental right. It is not possible to accept the contention of the learned Advocate General of Maharashtra and the learned Solicitor General that the right of the owner at present is just to get whatever the Government pleases to give, whenever it pleases to give and however it pleases to give. A position so nebulous as that cannot be considered as a right much less a fundamental right, which Article 31 (2) still claims to be.\n\nIt is difficult to believe that Parliament intended to make a mockery of the fundamental right conferred under Article 31(2). It cannot be that the Constitution while purporting to preserve the fundamental right of the citizens to get an \"amount\" in lieu of the property taken for public purpose has in fact robbed him of all hit right.\n\nUndoubtedly Article 31 empowers the legislature to acquire or requisition the property of a citizen for an \"amount\". What does the word \"amount\" mean in that Article ? As we have already said, that word by itself does not disclose any norm.\n\nBut then the word \"amount\" is followed by the words \"which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate.\"\n\nIf the expression \"amount\" has no norm and is just what the Parliament stipulates, there can be no question of prescribing principles for determining that \"amount\" ; nor is there any scope for finding out its adequacy. The legislatures are pcrmitt.ed under the amended Article 31 (2) either to fix the \"amount\" to be paid in lieu of the\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 33~\n\nproperty acquired or to lay down the princi pies for determining that \"amount\". These two alternative methods must bring about nearly the same result. If the relevancy of the principles fixed can b~ )d1cially reviewed-as indee~ they must be-in viw of the \"d1c1S10~~ referred to earlier, we fail to see how the fixation of the amount which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review\n\nThe word \"fixed\" in Article 31 (2) connotes or postulates that there must be some standard or principle by the application of which the legislature calculates or ascertains definitely the amount.\n\nIn Bouviar's Law Dictionary (1946) at p. 421, the word 'fix' is defined thus : \"To determine ; to settle. A Constitutional provision to the effect that the General Assembly shall fix the compenS11tion of officers means that it shall prescribe or 'fix' the rule by which such compensation is to be determined\". (See also Fraser Henlein Pvy. Ltd. v.\n\nCody(') cited in Saunders, Words and Phrases: Legally Defined Vol. 2, p. 258 ( 1969). This being the meaning of the word 'fix' it would be necessary for the legi$lature to lay down in the law itself or otherwise indicate the principles on the basis of which it fixes the amount for the acquisition or requisitioning of the property. If this construction is placed on the first mode of determining the amount, then there would be no difference between this method, and the other method whereby the legislature lays down the principles and leaves it for any other authority to determine the amount in accordance with such principles. Whether the legislature adopts one or the other method, the requirement of Article 31 (2) would be the same, namely, there must be principles on the basis of which the amount is determined. Such an amount may be determined either by the legislature or by some other authority authorised by the legislature. The content of the right in Article 31 (2) is not dependent upon whether the legislature chooses one or the other method of determining the amount.\n\nThere is no contradiction between these two methods. It is true that in both cases, the judicial review is necessarily limited because it cannot extend to the examination of the adequacy of the amount fixed or to be determined. It was conceded on behalf of the contesting respondents that the court can go into the question whether the \"amount\" fixed is illusory. This very concession shows the untenability of the contention advanced on behalf of the Union. For determining whether the \"amount\" fixed is illusory or not, one has first to determine the value of the property because without knowing the true value of the property, no court can say that the \"amount\" fixed is illusory. Further, when Article 31 (2) says that it is not open to the court to examine wheter the \"amount\" fixed or determined is adequate or not, it necessanly\n\n( 1) (194;) 70, C.L.R. 100 at 128.\n\n340 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nmeans that the \"amount\" payable has to be determined on the basis or principles relevant for determining the value of the property acquired or requisitioned. There can be no question of adequacy unless the \"amount\" payable has been determined on the basis of certain norms and not arbitrarily, without having regard to the value of the property.\n\nFurther, Article 31 (2) provides for fixing or determining the amount for the acquisition or requisitioning of the property.\n\nThe\n\nSte action is still described as 'acquisition or requisition' and not 'confiscation'. Therefore, the principles for fixing or determining the amount must be relevant to the 'acquisition or requisition', and not to 'confiscation'. The amount fixed or determined should not make it appear that the measure is one of confiscation. The principles for fixing or determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned.\n\nFurther there is practical difliculty in accepting the contentiol\\ that the word \"amount\" in the context in which it is used, has no norm.\n\nThe amount has to be fixed by the legislatures which means by the members of the legislatures. When a law for acquisition of certain types of property is enacted, it is not as if the members of the legisla. turch and every one of them who participates in the making ol the law would first go and inspect the property to be acquired and then assess the value of that property. In the ., ery nature of thingw, the \"amount\" payable has to be determined on the basis of certain ·\n\nprinciples. If that be so, as it appears to us to be obvious, then the legislators must have some principles before them to determine the amount. In this connection the 'Advocate-General of Maharashtra tried to give an explanation, which appears to us to be unsatisfactory and unacceptable. His contention was that our democracy is worked on the basis of party system. The ruling party has the majority of the m=bcrs of the legislature behind it. Therefore, the members. of the opposition party need not know the basis of fixation af the value of the. property acquired. Even the members of the ruling party need not be told .about .the basis on which the value is fixed. The option before them is either to accept the amount fixed by the cabinet or by the ?dinistu concerned or to reject the proposal and face the consequences. If this is the true position, it is, in our opiion, a negation . of parliamentary ?cm?'racy. OUr dcmocraq µkc all\n\ntru~ parliamentary democracies ts ased , ~~ tc pnnc1ples of debate and discussion. As far as possible, decmons m the legislatures arc arrived at on the basis of consensus. Our Constitution docs not provide for one party rule where there is no room for opposition.\n\n- •\n\n, '\n\nKESAVANANDA v. KEM.LA (Hegde & Mukherjea, JJ.) 341\n\nOpposition parties have an important role to play under our Constitu tion •. Members belonging to the opposition parties have as much right to participate in making laws as the members belonging to the ruling party. Further the learned Advocate General is not correct in his assumption that the function of the members belonging to the ruling party is to blindly support a measure sponsored by the executive. They also have a right, nay, a duty to mould every measure by debate and discussion. If the question of fixation of \"amount\" under Article 31 (2) is considered as the exclusive function of the executive, then, not only the judicial review will be taken away, even the legislature will not\n\nhave the opportunity of examining the correctness or appropriateness of the \"amount\" fixed. A power so arbitrary as that can speedily dege nerate into an instrument of oppression and is likely to be used for collateral purposes. Our Constitution has created checks and balances to minimise the possibility of power being misused. We have no doubt that the theory propounded by the Advocate General of Maharashtra will be repudiated by our legislatures and the cabinets as something wholly foreign to our Constitution.\n\nIf we bear in mind the fact that the \"amount\" in question is to be paid in lieu of the property taken, then, it follows that it must have a reasonable relationship with the value of the property taken.\n\nIt may not be the market value of the property taken.\n\nThe market value of a property is the result of an inter-action of various forces.\n\nIt may not have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society such as improvements effected by the State in the locality in question or the conversion of a rural area into an urban area. It is undoubted! y open to the State to appropriate to itself that part of the market .value of a property which is not the result of any contribution made by its owners. There may be several other relevant grounds for fixing a particular \"amount\" in a given case or for adopting one or more of the relevant principles for the determination of the price to be paid. In all these matters the legislative judgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the value of the property acquired or that the \"amount\" to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for computing the value of the property is relevant to the acquisition in question or the amcunt fixed can be justified on any such basis, it is no more open to the court to consider whether the amount fixed or to be determined is adequate. But it is stilt open to the coun to consi der whether \"amount'' in question has been aribtrarily determined or whether the same is an illusory return for the property taken. It is\n\n342 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nalso open to the court to consider whether the principles laid down for the determination of the amount are irrelevant for the acquisition or requisition in question. To put it differently, the juclicial review under the amended Article 31 (2) lies within narrow limits. The court cannot go into the question whether what is paid or is payable is compensation. It can only go into the question whether the \"amount\" in question was aribtrarily fixed as illusory or whether the principles laid down for the purpose of determining the \"amount\" payable have reasonable relationship with the value of the property acquired or requisitioned.\n\nIf the amended Article 31 (2) is understood in the manner as laid down above, the right to property cannot be said to have been damaged or destroyed. The amended Article 31 (2) aceording to us fully protects the interest~ of the individual as well as that of the society. Hence its validity is not open to challenge.\n\nNow,- let us rum to Article 31(2B). It says that ''Nothing In sulxlause (£) of cl. (1) of Article 19 shall affect any such law as is referred to in cl. (2)\". This provision has no real impact on the right conferred under Article 31(2). Article 31(2) empowers the State to compulsorily acquire or requisition property for public purpose. When property is acquired or requisitioned for public purpose, the right of the owner of that property to hold or dispose of that property is necessarily lost. Hence there is no anti-thesis between Article 19(1}(f) and Article 31(2). That being so, the only assistance that the owner of the property acquired or rcquisitiioned would have obtained from Article 19(1)(f) read with sub-article (5) of that article would be the right to insist that the law made under Article 31 (2) as it stood before its recent amendment, should have to conform to some reasonable procedure both in the matter of dispossessing him as well as in the matter of determining the \"amount\" payable to him. In a way, those rights are protected by the principles of natural jwtice.\n\nFor the reasons mentioned above, we are unable to accept the £-Ontention urged on behalf of the petitioners that s. 2 of the 25th Amendment Act, 1971 is invalid.\n\nThis takes us to s. 3 of the 25th Amendment Act which now stands as Article 31C of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact law• giving elfect to, the policy of the State towards securing the principles •pecificd i'1 clause (b) or clause ( c) of Article 39, completely ignoring in the pracess, Articles 14, 19 and 31. Further it lays down that if the law in question contains a declaration that it is for giving effect to such policy, that law shall not\n\nbe called in question in any court on the ground that it does not give effect to such policy. The proviso to that Article prescribes that where\n\nsuch law is made by the legislature of a State, the provisions of Article\n\n; •\n\nKESAVANANDA v. KERALA (Hegde & M11kheriett, JJ.) 343\n\n31C shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. This Article has two parts. The first part says that laws enacted by Parliament as well as by the Local Legislatures for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall not be deemed to be void on the ground that it is in. consistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 notwithstanding anything contained in Article 13 and the second part provides that no law containing a declaration that is for giving effect to such poliy shall be called in question in any court on the ground that it does not give effect to such policy. Clauses (b) and ( c) of Article 39 do not prescribe any subject matter of legislation. They contain certain objectives to be achieved. The methods to be adopted to achieve those objectives may be numerous. Those clauses cover a very large field of social and economic activities of the Union and the States. Clause (b) of Article 39 says that the State shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and clause ( c) of that Article says that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These two provisions lay down a particular political philosophy. They in conjunction with some other provisions of the Constitution direct the State to build a Welfare State.\n\nNo one can deny. the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the 'conscience' of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all.\n\nThe purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of\n\nour society. It aims at making the Indian masses free in the positive sense.\n\nPart IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim \"Of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all. The Constitution visualizes our society as a whole and contemplates that every member d the society should participate in the freedoms guaranteed. To ignore Part IV is to\n\nignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is\n\n344 SUPl\\EME COURT l\\EPORTS [ 1973] Supp. s.c.R.\n\nnot possible to achieve the W clfarc State contemplated by the Constitu tion. A society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this country.\n\nAny Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its commitments.\n\nEqually, the danger to democracy by an over emphasis on duty cannot be minimised. Kurt Reizler, a German Scholar, from his experience of the tragedy of the Nazi Germany warned :\n\n\"If. . . . these duties of man should be duties towards the \"public welfare\" of the \"society\" and the State, and rights are made conditional on the fulfilment of these duties, the duties will uproot the rights. The rights will wither away ... (the) State can use the allegedly unfulfilled duties to shove aside rights.-Any Bill of Rights that makes the rights conditional on duties towards society or the State, however strong its emphasis on human dignity, freedom, God or whatever else, can be accepted by any totalitarian leader.\n\nHe will enforce the duties while disregarding the right\".\n\nIndeed the balancing process between the individual rights and the social needs is a delicate one. This is primarily the responsibility of the\n\n\"State\" and in the ultimate analysis of the courts as interpreters of the Constitution and the laws.\n\nOur founding fathers were satisfied that there is no anti-thesis between the Fundamental Rights and the Directive Principles. One\n\nsupplements the other. The Directives lay down the end to be achieved and Part III prescribes the means through which the goal is to be reached. Our Constitution does not subscribe to the theory that end justifies the means adopted. The Counsel for the petitioners urged that the Fundamental Rights are not the cause of our failure to implement the Directive Principles. According to him, it is not the Constituion that has failed as ; but we have failed to rise up to its expectaiions. He 1.1rged that the attack against Fundamental Rights is merely an alibi and an attempt to find a scape-goat on the part of those .. who . were µnable or willing to implement the Directives. These allegations are /denied on behalf of the Union and the States. It was urged on their behalf that interpretations placed by the courts on some of the Articles in Part III of the Constitution have placed impediments in the way of States, in implementing the Directives. These controversies arc not capable of being decided by courts.\n\nThere is no doubt that the power conferred under Article 31C, if in!'erpreted in the manner contended on behalf of the Union and . the\n\nStates would result in denuding substantially the contents of the nght\n\n~VANANDA v. XERALA (Hegde & Mukherjea, JJ.) 345\n\nto equality, the right to the seven freedoms guarantced under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article 31C is not confined to some particular subjects. It can take in a very wide area of human activities. The power conferred under it, is an arbitrary power. It is capable of being us.:d for collateral purposes. It can be used to stifle the freedom of speech, freedom to assemble peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquiie, hold and dispose of proprty and freedom to practise any profession or carry on any occupation, trade or business. The power conferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this country. That Article is wholly out of tune with our Constitution. Its implications arc manifold. There is force in the contention of the petitioners that this Article has the potentiality of shaking the very foundation of our Constitution.\n\nWhat is the nature of the power conferred under Article 31C? It is claimed to have empowered Parliament and the State Legislatures to enact laws pro tanto abrogating Articles 14, 19 and 31. A power to take away directly or indirectly a right guaranteed or a duty imposed under a Constitution, by an ordinary law, is a power to pro tanto abrogate the Constitution. If the legislature is empowered to amend the Constitution by ordinary legislative procedure, any law enacted by it, even if it does not purport to amend the Constitution, but all the same, is inconsistent with one or more of the provisions of the Constitution has the effect of abrogating the Constitution to the extent of inconsistency. That position is clear from the judgment of the Judicial Committee in McCawley v. The King.(') In other words, the power conferred under the Article is a power to amend the Consatution in certain essential respects while enacting legislations coming within the purview of that Article. It is a power not merely to abridge but even to take away the rights guaranteed under Articles 14, 19 and 31 by ordinary law. Further that power is conferred not only on the Parliament but also on the State Legislatures.\n\nArticle 368 specifically provides that amendment of the Constitution can be done only in the manner provided therein. It is true that there arc provisions in the Constitution under which the Parliament can amend some parts of the Constitution by ordinary law-see Article 2 to 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. But these provisions clearly provide that the laws enacted under those provisions \"are not to be deemed as amendments\n\n(~) [1920] A.C. 691.\n\n::146 SUPREME COUJl.T REPORTS [ 1973] Supp. s.c.R.\n\nto the Constitution for the purpose of Article 368\". There an: also some transitional provisions in the Constitution which can be changed by the Parliament by law. Leaving aside for separate consideration Article 31-A, which was first introduced by the 1st Amendment Act, 1951, there is no provision in the Constitution apart from Article 31 ( 4) which permitted the State Legislatures to enact laws contravening one or more of the provisions in Part III. Article 31(4) relates to legislations pending before the State Legislatures at the time the Constitution came into force. Their scope was known to the Constitution. rhakers. That provision was enacted to protect certain Zamindari Abolition laws which were on the anvil. But it must be remembered that the original provisions in the Constitution were not controlled by\n\nl\\rticle 368. That Article is as much a creature of the Constitution as the other Articles are. The form and manner prescribed in Article 368 did not govern the procedure of the Constituent Assembly. The mandates contained in Article 368 are applicable only to the amendments made to the Constitution. The power to amend the Constitutio11 was exclusively given to the Parliament and to no other body.\n\nThe manner of exercising that power is clearly prescribed. Article 31C gives a very large power to the State Legislatures as well as to Parliament to pro tanto amend . the Constitution by enacting laws coming within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by a simple majority vote of the members present and voting, if the rule regarding quorum is satisfied.\n\nIt cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear that the laws passed under those Articles are not to be deemed to be an amendment of the Constitution for the purpose of Article 368. Those laws cannot affect the basic features of the Constitu!ion. They operate within narrow fields.\n\nThe learned Advocate-General of Maharashtra contended that Article 31C lifts the ban placffioo the State Legislatures and Parliament under Articles 14, 19 and 31. It is true that there are several provisions in the Constitution which lift the ban placed by one or the other Article of the Constitution on the legislative power of the State Legislatures and Parliament e.g. Articles 15(4), 16(3), 16(4), 16(5), 19(2) to 19(6), 22(3), 22(6), 23(2), 28(2), 31(4), 31(6) etc. Each one of these Articles lifts the limitations placed on the legislative power of the legislatures by one or more of the provisions of the Constitution particularly those contained in Part III.\n\nBut when the limitation is so lifted, there will be no conflict between the law enacted and Article 13. In such a situation, there is no occasion for providing that the law enacted will not be deemed to be void notwithstanding anything contained in Article 13. The laws made under the\n\nKESAVANANDA v. KERALA (Hegde & Mukheriea, JJ.) 347\n\nprovisions set out earlier cannot in their very nature take away any of the fundamental features of the Constitution. They can merely modify one or other of those features. Article 31C proceeds on the basis that the laws enacted under that Article arc in conflict with Article 13 and ate prima facie void. Otherwise there was no purpose in providing in that Article \"Notwithstanding anything contained in Article 13, no law giving effect to the policy of the . State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any rights conferred by Article 14, Article 19 or Article 31 .... \" Hence the contention that limitations imposed by Articles 14, 19 and 31 on the legislative power of the Union and the States are lifted to the extent provided in Article 31C cannot be accepted.\n\nIt is true that there is some similarity between the laws made under Article 31A and those made under Article 31C. The fiCOpe of the latter article is much wider than that of the former. The character of the laws made under both those Articles is somewhat similar. It was urged that if laws made under Article' 31-A, withoqt more, are valid even if they take away or abridge the rights conferred under Articles 14, 19 and 31, for the same reason, laws made under Article 31C must also be held valid. It was contended, now that this Court has upheld the valiclity of Article 31-A, we should also uphold the validity of Article 31C. In that connection, reliance was placed on the following observations of Brandies J. of the United States Supreme Court in Lesser v. Garnett : (')\n\n''This Amendment (19th Amendment) is in character and phraseology precisely similar to the 15th.\n\nFor each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid .... has been recognised and acted upon for half a century ... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiescence cannot be entertained.\"\n\nThese observations do not lay down any principle of law. The validity of the 19th Amendment was upheld on various grounds and not merely because the 15th amendment was upheld.\n\nThe laws enacted under Article 31A by their very nature can hardly abrogate the rights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights guarant.eed under Articles i4, 19 and 31 only to the extent necessary for giving effect to them. The laws\n\n(') 66 L. Ed. p. 595(511)=258 U.S. 13.\n\n348 SUPREME COURT REPOllTS (1973] Supp. s.C.ll.\n\nmade must be those made under the topics of legislation mentioned in Article 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and 31 must necessarily be incidental.\n\nIf the encroachment is found to be excessive, the same can be struck down.\n\nIn this connection reference may be usefully made to the decision of this Court in Akadasi Padhan v. State of Oris; a.(') Therein the validity of a provision of a statute enacted under Article 19(6) (ii) i.e. law providing for State monopoly in Kendu Leaves, came up for amsideration. The question for decision before the Court was whether that Jaw can unreasonably encroach upon the right guaranteed under Article 19(1)(g). That question was answered by Gajendragadkar J. (as he then was) speaking for the Court, thus :\n\n\" \"A law relating to\" a State monopoly cannot, in the context include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential feature. If a law ls passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19( 6). In other words, the effect of the amendment made in Article 19( 6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6).\"\n\nThe same principle was reiterated by the full Court in the Bank Nationalisation ease.\n\nAs far back as in 1951 this Court ruled in State of Bombay and anr. v. F. N. Balsara(\") that merely because law was enacted to implement one of the Directive Principles, the same cannot with impunity encroach upon the Fundamental Rights. The ratio of Akadasi\n\n( 1) [1963] Supp. 2 S.C.R. 691\n\n(') [ 1951) S.C.R. 682.\n\nKESAVANANDA ti. KERALA (Hegd: & Mukherjea, JJ.) 349\n\nPadhan's case would be equally applicable in respect of the laws mad~ under Article 31A which speaks of the \"law providing for the\" topics mentioned therein. But that ratio cannot be effectively applied when we come to Jaws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into\n\nthe question whether the laws encted do give effect to the policy set out in Article 39(b) and (c). We were told on behalf of the Union and the States that it is open to the courts to examine whether there is a nexus between the laws made uncfer Article 31C and Article 39(b) , and ( c) and all that the courts are precluded from examining is the effectiveness of the law in achieving the intended purpose. But, such a power in its very nature is tenuous. There can be few laws which can be held to have no nexus with Article 39(b) and (c). At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in Article 39(b) and (c). Once that facade is projected, the laws made can proceed to destroy the very foundation of our Constitution. Encroachment of valuable constitutional guarantees generally begins imperceptibly and is made with the best of intentions but, once that attempt is successful further encroachments follow as a matter of course, not perhaps with any evil motives, and may be, out of strong convictions regarding the righteousness of the\n\ncourse adopted and the objectives intended to be achieved but they may all the same be wholly unconstitutional. Lord Atkin observed in Proprietary Articles Traders Association and ors. v. Attorney General\n\nfor Canada and ors.(')\n\n\"Both the Act and the sections have a legislative history which is relevant to the discussion. Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultea vires; nor will a history of a gradial series of advances till this boundary is finally crossed avail to protect the ultimate encroachment.\"\n\nThe observation of Lord Atkin \"nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment\" is extremely apposite for our present purpose. The First Amendment Act permitted enactment of Constitution breaking Laws in respect of one subject ; the Fourth Amendment Act enlarged that field and permitted the Legislatures to make laws ignoring Articles 14, 19 and 31 in respect of five subjects. Now the Twenty-Fifth Amendment has finally crossed the boundary.\n\n( 1) [1931] A.C. 311at317. 23-36 S. C. I ndi•/73\n\n350 SUPREME COURT REPORTS [ 1973 J Supp. s.C.R.\n\nIt cannot be said that under Article 31C Parliament me.rely delegated its own amending power to State Legislatures and such a delegation is valid. The power conferred on Parliament under Article 368 in its very nature is one that cannot be delegated. It is a special power to be exclusively exercised by Parliament and that in the manner pmcribcd in Article 368. The State Legislatures arc not institutions subordinate to Parliament. Parliament as well as State Legislatures in their respective allocated fields arc supreme.\n\nParliament cannot delegate its legislative powers-much less the amending power-to the State Legislatures. The question whether the legislatures can confer power on some other independent legislative body to exercise its legislative power came .up for consideration before the Judicial Committee in re The Initiative and Referendum Act(') Therein Viscount Haldane speaking for the Board observed:\n\n\"Sction 92 of the Act of 1867 (British North American Act) entrusts the legislative power in a Province to its legislature and to that legislature only.\n\nNo toubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Tavcrnes ; but it docs not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise.\"\n\nIn Queen v. Burah,(8 ) the Judicial Committee observed :\n\n\"Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Councils' Act.\"\n\nWe respectfully agr<e with these observations.\n\nFrom these observat ons it follows that Parliament was incompetent to create a new power-a power to ignore some of the provisions of the Constitutionand endow the same on the State Legislatures.\n\nThat power was exclusively conferred on Parliament so that the unity and integrity of this country may not be jeopardised by parochial considerations. The Constitution make.rs were evidently of the opinion that the sovereignty\n\n(') [1919] A.C. p. 935 at 945 P.C. (\") 19 App. Cas. 117. (') (1878) 5 I.A. 178 at 194.\n\nKESAVANANDA v. KEMLA (Hegde & Mukhn; ea, JJ.) 351\n\nof the country, the democratic character of the polity, and the individual liberties etc. would be better safeguarded if the amending power is exclusively left in the hands of the Parliament. This exclusive conferment of amending power on the Parliament is one of the basic features of the Constitution and the same cannot be violated directly or indirectly. Article 31A made a small dent on this feature and that went unnoticed. That provision is now protected by the principle of stare decisis. Public interest will suffer if we go back on these decisions and take away the protection given to many statutes, Now, to use the words of Lord Atkin in the Proprietary Articles\n\nTraders Auociation's case, the 'boundary line has been crossed' and a challenge to the very basic conceptions of the Constitution is posed.\n\nHence the neglect or avoidance of the question in previous cases cannot be accepted as a sound argument.\n\nIn Queen v. Kirby and ilrs. (') Dixon C. J. observed :\n\n\"These cases, and perhaps other examples exist, do no doubt add to the weight of the general con.siderations arising from lapse of time, the neglect or avoidance of the question in previous cases and the very evident desirability of leaving undisturbed assumptions that have been accepted as to the validity of the provisions in question. At the same time, the Court is not entitled to place very great reliance upon the fact that, in cases, before it where occasions might have been made to raise the question for argument and decision, this was not done by any member of the Court and that on the contrary all acceptcd the common assumption of the parties and decided the case accordingly. Undesirable as it is 'that doubtful questions of validity should go by default, the fact is that, the court usually acts upon the presumption of validity until the law is specifically challenged.''\n\nSimilar was the view expressed by Viscount Simonds speaking for the Judicial Committee in Attorney-General of Commonwealth t1f Australia v. The Queen and ors.(')\n\n\"It is therefore asked and no one can doubt that it is a tormidable question, why for a quarter of a century no litigant has attacked the validity of this obvwusly illegitimate unions. Why in\n\nAlcxanndc~'s case (1918) 25, C.L.R. 434) itself was no challenge made ? How came it that in a series of cases, which arc enumerated in the majority and the dissentient, judgments it was assumed without question that the provisions now impugned were valid ?\"\n\n( 1) (1956) 94, Cl.R. 295.\n\n(') 95, Cl.R. 529 at 547.\n\n352 SUpJIEME COURT REPORTS ( 1973) Supp. S.C.R.\n\nlt is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provision could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far reaching constitutional importance they would imperatively require the assistance of the High Court itself. But here no such question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act whlch for a number of years went unchallenged, so far a greater number of years an invalidity whlch to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression, in the appropriate judgment.\"\n\nThe contention that Article 31C may be considered as an amendment of Article 368 is not tenable. It does not purport to be so. That Article does not find a place in Part XX of the Constitution. It is not shown as a proviso to Article 368, the only Article which deals with the amendment of the Constitution as such. Article 31 C does not say that the powers conferred under that Article are available \"notwithstanding anything contained in Article 368\" or \"notwithstanding anythlng in this Constituion\". There is no basis for holding that the Parliament intended that Article 31C should operate as an amendment of Article 368. We have earlier come to the conclusion that the State Legislatures cannot be invested with the power to amend the Constitution.\n\nIf the purpose of Article 31C is to secure for the Government, the control of means of production in certain economic spheres exclusively or otherwise, the same can be achieved by the exercise of legis-.\n\nlative power under Article 31 (2) or under Article 31 (2) read with Article 19(6) (ii). I£ on the other hand, the object is to reduce the existing economic disparity in the country, that object can be achleved by exercising the various powers conferred on the legislatures under the Constitution, in particufar by the exercise of the power to tax, a power of the largest amplitude. That power can be exercise4 withot discriminating against any section of the people. One of the baste underlying principles of our Constitution is that evry governmental power, which includes both the power of te executives as well .as of the legislatures, must be so exercised as to give no room for !eg1t1matc complaint, that it was exercised with an evil eye or an uneven hand.\n\nKESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 353\n\nFor the reasons mentioned above, we hold that Article 31C pcrmi!I the destruction of some of the basic features of our Constitution and consequently, it is void.\n\nLastly, we come to the validity of the 29th Amendment Act, 1972.\n\nContentions relating to the 29th Amendment Act of. the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment A't does . not satisfy the requirements of Article 31A(l)(a), the said provision docs not get the protection of Article 31-B.\n\n& a result of. the 29th Amendment Act, tire Kcrala Land Reforms (Amendment) Act, 1969, (Kcrala Act 33. of 1969) and Kerala Land Reforms (Amendment) Act, 197°1 (Kcrala Act 25 of 1971) were added as ittms 65 and 66 in the IXth Schedule of the Constitution.\n\nThe IXth Schedule is an appendage to Article 31-B, which says :\n\n\"Without prejudice to the generality of the provisions contained in . article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such A.ct, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each-of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.\"\n\nThe learned Counsel for the petitioners did not challenge the validity of Article 3IB. Its validity has been accepted in a number of cases decided by this Court. His only contention was that before y Act or any provision in an Act, included in the !Xtb Schedule\n\ncan get the protection of Artide 31B, the A.ct or the provision in question must satisfy the requirements of one or the other of the provisions in Article 31A. For this contention of his, he relied on the opening words of Article 31B namely \"without prejudice to the gen~ rality of the provisions contained in Article 31A\". He urged thot, if Article 31B had been an independent provision having no connection whatsoever with Article 31A as contended on behalf of the conte1ting respondents, there was no occasion for using the word~ referred t? earlier in Article 31B. He also attempted to trace the history of Articles 31A. and 31B and establish that there is link between those two Articles. Though there is some force in those contentions, the qustion of law raised is no more res integra. It ls concluded by a series of decisions of this Court and we see no justification to reopen that question.\n\n3 54 SVPJEME COUJ.T UPORTS [ 1973] Supp. s.c.Jt.\n\nIn Sta~ of Bihar v. Maharajatlhiraja Sir Kamethwar Singh of Darbhanga_ and orJ.(') a contention similar to that advanced by Mr. Palkh1vala was advanced by Mr. Somayya. That contention was rejected by Patanjali Sastri C.J. speaking for the Court with th= observations :\n\n~Mi. Somayya, however, submitted that the opeAing words of Article 31-B, namely \"Without prejudice to the generality of the\n\nprovision~ contained in Article 31A\" showed that the mention of particular statutes in Article 3L-B read with the Ninth Schedule was only illustrative, and that, accordingly, Article 31-B could not be wider in scope.. Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerp's case\n\n(1945) F.C.R. 195). I cannot agree with that view.\n\nThere is nothing in Article 31-B to indicate that the specific intention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anythi\"ng contained in Article 31-B and arc in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition ot \"estates\".\n\nIn Vishweshwar Rao v. The State of Madhya Pradesh(') Mahajan J. (as he then was) reiterated the same view. He observed:\n\n\"It was contended that Article 31-B was merely illustrative of the rule stated in Article 31-A and if Article 31-A had no application, that article also should be left out of consideration ..... .\n\nOn the basis of the similarity of the language in the opening part of Article 31-B with that of sub-sectiOn (2) of section 2 of the Defence of India Act \"without prejudice to the. generality of the provisions contained in Article 31-A'', it was urged that Article 31-B was merely illustrative of Art. 31-A and as the latter was limited in its application to estates as defined therein, Article 31-B was also so limited. In my opinion, the observations in Sibnath\n\nBannerjee's case far from supporting the contention raised, negatives it. Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A, but stands independent of it. The impugned Acts in this situation qua the acquisition of the eight malguzari villages cannot be questioned on the ground that it contravenes the provisions of article 31(2) of the Constitution or any of the other provisions of Part Ill.\"\n\n(I) II 9521 S.C.R. 889.\n\n(') (1952) S.C.R. 1020.\n\nKESAVANANDA \"· KEMLA (Hegde & Mul(/1erjea, JJ.)\n\n3SS\n\nA similar view was cxpresed by this C.Ourt in N. B. /eeieebhoy v.\n\nAssi!Pant Colkct<>r, ThatA:J Prant, Thana(') Therein Sobba Rao J. (as he then was) speaking for the C.OUrt observed thus :\n\n\"The learned Attorney General contended that Article .3lA and Article 31-B should be read together and that if so read Article\n\n31-B would only illustrate cases that would otherwise fall under Article 31.A and, therefore, the same construction as put upon\n\nArtU:le 31-B should also apply to Article 31-A of the Constitut'on ..\n\nThis COl1$truction was sought to be based upon the opening words\n\nof Article 31-B, namely \"without prejudice to the generality of the provisions contained in Article 31.A\". We find it difficult to accept this argument. The words \"Without prejudice to the generality of the provisions\" indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act in the 9th Schedule would be covered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the 9th Schedule, do not appear to relate to estates as defined in Article 31-A(Z) of the Constitution. We, therefore, hold that\n\nArticle 31-B is not governed by Artkle 31A and that Article 31B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the C.Onstitution . .. \"\n\nSeveral other decisions of this Court proceed on the basis that ArtiCle 31-B is independent of the Article 31A. It is too late in the day to reopen that question. Whether the Acts which were brought into the IXth Schedule by the 29th Amendment Act or any provision in any of them abrogate any of the basic elements or essential features of the C.Onstitution can be examined when the validity of those Acts is gone into.\n\nFor the foregoing reasons, we reject the contention of the petitioners that before an Act can be included in the !Xth Schedule, it must satisfy the requirements of Article 31-A.\n\nIn the result we hold:\n\n(1) The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the C.Onstitution. ---------·-\n\n(') [1965] I, S.C.R. 636.\n\n356 sUPllMI! cou:u REPO!lTS (1973] Supp. s.c.a.\n\n(2) The expression \"law\" in Article 13(2) even be.tore Article\n\n13 was amended by the 24th Amendment Act, did not include amendments to the Constitution.\n\n(3) Thgh the er to amend the Constitution under ,\\rticl~ 368 1s a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.\n\n(4) The 24th Amendment Act did not enlarge the amendmg power of the Parliament. It mcrdy made explicit what was implicit in the original Article. Hence it is valid.\n\n(5)(A) The newly substituted Article 31(2) does not destroy the right to property becau\"-\n\n(i) the fixation of \"amolll'lt\" under that Article should have reasonable relationship with the value of the property acquired or requisitioned ;\n\n(ii) the principles laid down must be relevant for the purpo1c\n\nof ardving at the \"amount\" payable in respect ii the property acquired or requisitioned;\n\n(iii) the \"amount\" fixed should not be illusory and\n\n(iv) the same should not be fixed arbitrarily.\n\n5(B) The question whether the \"amount\" in question has been\n\nfixed arbitrarily or the same is illusory or the principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition at about the time when the property in question is acquired or requisitioned are open to judicial review. But it is no more open to the court to consider whether the \"amount\" fixed or to be determined on the basis of the principles laid down is adequate.\n\n(6) Claus, Z(b) of the 25th Amendment Act which incorporated Article 31 (2B) is also valid as it did not damage or destroy any essential features of the Constitution.\n\n(7) Clause (3) of the 25th Amendment Act which introduced into the Constitution Article 31C is invalid for two reasons i.e. ( 1) it was beyond the amending power of the Parliament in so far as the amendment in question permits destruction of several ba:sic clements or fundamental features of the Constitution and (2) it empowers the Parliament and the State\n\nLegislatures to pro tanto amend certa!n human. free?oms guaranteed to the citizens by the exemse of their ordinary legislative power.\n\n• _,\n\nUSAVANANDA V, llRALA (Ray, J,) 357\n\n(8) The 29th Amendment Act is valid but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abroaatc any of the basic clements or essential features of the Constitution will have to be aamincd when the validity of those Acts is gone into.\n\nIn the circumstances of the case we direct the parties to bear their own costs in these cases uptill this stage.\n\nRAY, J.-The validity of the Consti.tution 24th, 25th and 29th .Amendment Acts is challen,.•ed. The Constitution 24th Amendment Act amended Article 368. Article 368 in the unamended form siieaks -0f \"Amendment of this Constitution\" and how the Constitution shall $tand amended. The Constitution 24th Amendment Act enacts that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in that Article. The other\n\npart of the amendment is that nothing in Article 13 shall apply to .any amendment under Article 368. The Constitution 25th Amendment Act has amended Article 31 (2) and also Article\n\n31 (2A ).\n\nThe effect of these two amendments with regard to Articles 31(2) .and 31(2A) is two-fold. First, no property shall be compulsorily\n\n.acquired or requsitioned save for a public purpose and save by authority of law which provides for an amount which may be fixed by law or which may be determined in accordance . with such principles.\n\nSecondly, nothing in Article 19(1) (f) shall affect any law as is reterred to in Article 31(2). The second pan of the Constitution 25th Amendment Act is introduction of Article 31C which enacts that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing principles prescribed in clauses (b) and ( c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any -of the rights conferred by Articles 14, 19 and 31; and no law containing a _declarat!on _that it is for giving effect to such policy shall be called m question m any court on the ground llhat it does not give effect to such policy, By the Constitution 29th Amendment Act the Kerala Land Reforms Amendment Act 1969 and the Kerala Land Reforms Amendment Act 1971 have been introduced into the Ninth Schedule of the Constitution.\n\nThe principal question which falls for determination is whether the power to med is _under any express limitation of Article 13(\").\n\nnother question 1s whether there are implied and inherent limitation on the power of amendment.\n\nCan there be any implied or inherent limitation in the face of any express power of amendment\n\n358 SUPREME COURT ItEl'OllTS [1973} Supp.: LC.II..\n\nwithout' any exception? Question have been raised that esscnl fca-· tures of the Constitution cannot be amended. Does the Constitution admit of distinction between essential and non-essential features ?\n\nWho is to determine what the essential featw-es arc? . Who is the authority to pronounce as to what features are essential?· The preeminent question is whether the power of amendment is to be cil- \\ ed or restricted, though the Constitution does not contain any exception to the power of amendment. The people gave ihe Constitution to the people. The people gave the power of amendment to Parliament. Democracy proceeds on the faith and capacity of the people to elect their representatives and faith in the representatives to represent the people. Thoroughout the history of man-kind if any motive power . has been more potent than another it is that of faith in themselves. The ideal of faith in ourself is of the great.est help to us.\n\nGrote the historian of Greece said that the diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispcnsible condition of a government at once free a11d peaceful. By constitutional morality Grote meant a paramount reverence for the forms of the Constitution, with a perfect conlidcnee in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of opponents than in his own. The question is \"He that planted the car, shall he nor hear? or he that made the eye, shall he no sec''.\n\nThe real question is whether there is any power !P amend the< Constitution and if so whether there is any limitation on the power.\n\nThe answer to this question depends on these considerations. First, what is the correct ratio and effect of the decision in I. C. Golak Nath & Ors. v. State af Punjab & Anr. (1967) 2 S.C.R. 762. Second, should that ratio be upheld. Third, is there any limi!tltion on the power to amend the Constitution.\n\nFourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended.\n\nThe scope and power under Article 368 as it stood prior to the Constitution (24th) Amendment Act to amend the Constitution folk for consideration.\n\nTwo principal questions arise. First, is the Constitution as well as an amendment to the Constitlltion law within the meaning of Article 13(2). Second, is there any implied and inherent limitation on the power a{ amendment apart from Article 13(2).\n\nMr. Palkhivala contends that the unamended Article 368 was subject to Article 13(2). It is said that amendment of the Constitution is law, 3nd, therefore, any law which contravenes fundamental\n\nI '\n\nr I\n\nKESAVANANDA V, KEllALA (Ray, J.) 359\n\nrights is void. It is also said that Article 368 does not prevail over or override Article 13. The four bars under Article 13 arc said to be these. The bar is impoocd against the State, that is to say the totality of all the forces of the State. Second, all categories of law arc covered by the bar, whether they are constitutional amendments or bye-laws or executive Orders <111d Notifications. Third, all laws in force under Article 372 and all laws to be brought into force at any future date arc brought within the scope of this bar. Fourth, the effect of the bar is to render the law void.\n\nMr. Palkhivala said that the preamble makes it clear that the object of the Constitution is to secure basic human freedom, and this guarantee will be meaningless if the Legislature against whom the guarantee is to operate is .ak' liberty to abrogate the guarantees. It is id that law is comprehensive enough t.o include both ordinary law and constitutional law. The various forms of oath in the Third\n\nSchedule of the Constitution refer 1!o \"constitution as by law established\". It is, therefore, submitted by the petitioner that the Constitution itself was originally established by law and every amendment has likewise to be established by law in order to take effect. It is emphasised that the constitutional amendment is a law, and, therefore, the word \"law\" in Article 13(2) includes constitutional amendments.\n\nThe Attorney General and Mr. Scervai said that the Constitution is the supreme higher law. An amendment to the Constitution is in exercise of constituent power. The amending power is not a legislative power. Law in Article 13(2) embodies the doctrine of ultra vires to render vaid any law enacted under the Constitution.\n\nThis Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar (1952) S.C.R. 89 and Sajjan Singh v. State of Rajasthan ( 1965) 1 S.C.R. 933 examined the power to amend the Constitution.\n\nIn Shankari Prasad case the Constitutipn First Amendment Act was challenged. The principal contention was that the First Amendment in so far as it purported to take away ar abridge the rights conferred by Part Ill of the Constitution fell within the prohibition of Article 13(2) of the Constitution.\n\nThe unanimous view of this Court in Shankari Prasad case was thnt although law must ordinarily include constitutional law there is a clear demarcation between ordinary law which is made in exercise of legislative power and constitutional law which is made in exercise of constituent power. In the absence of a clear indication\n\n36'0 SUPREME COURT REPORTS [1973] Supp. s.c.11.\n\nto •he contrary it is difficult to hold that the framers of the Oonsti\" tution intended to make the fundamental rights immune of constitutional amendment'.. The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) oonstrued in the context of Article 13 means Uhat law in Article 13(2) would be relateable to exercise of ordinary legislative power and not amendment to the Constitution.\n\nThe Constitution Fourth Amendment Act came mo existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into llorce on 20 June, 1964. By the Seventeenth Amendment Act Article 31A clause (1) was amended by inserlling one more proviso.\n\nA fresh sul>-clause (a) was substituted for original sub.clause\n\n(a) of clause (2) of Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of the Seventeenth Amendment was challenged before this Court in Saijan Singh case.\n\nThe main contention in Sajjan Singh case was that the power prescribed by Article 226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was necessary that the special procedure laid down in the proviso to Article 368 sliould have been followed. The Seventeenth Amendment Act was said to be invalid because that procedure was not followed.\n\nThe majority view of this Court in Sajjan Singh case was that Article 368 plainly and unambiguously meant amendment of all the\n\nprovisions of the Constitution. The word \"law\" in Article 13(2) was held not to take in the Constitution Amendmenn Acts passed under Article 368. It was also said that fundamental rights in Article 19 could be regulated as specified in clauses (2) to ( 6) and, t!herefore, it could not be said to hav~ been assumed by the Constitution makers that fundamental rights were static and incapable of expansion. It was said that the concept of public interest and other important considerations which arc the basis of clauses (2) to ( 6) in Article 19 \"may change and may even expand\". The majority view said that \"The Constitution makers knew that Parliament could be competent to make amendments in those rights (meaning thereby fundan1ental rights) so as to meet the challenge of the problem which may arise in the course of socio economic progress and the development of the country\".\n\nThe minority view in Sajjan Singh case doubted the corrctncss of the unanimous view in Shankari Prasad case. The doubt was on a question as to whether fundamental rights could be abridgeJ by\n\nKESAVANANDA v. KERALA (Ray, J.) 361\n\nexercise of power under Article 368. The minority view in Sajjan Singh case was that the rights of . society are made paramount and\n\narc placed above those of the individual. But the minority view was abo that though fundamental rights could be restricted under clause\n\n(2) to (6) of Article 19 there could be no \"removal or debilitation\" of such rights.\n\nIn Golak Nath case the Punjab Security of Land Tenures Act, 1953 was challenged as violative of fundamental rights and as not being protected by the Constitutikm. First Amendment Act, 1951, the Constitution Fourth Amendment Act, 1955 and the Constitution Seventeenth Amendment Act, 1964. The validity of the Mysore Reforfus Act, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The Punjab Act and the Mysore Act were included in the Ninth Schedule. It was common case that if the Seventeenth Amendment Act adding the Punjab Act and the Mysore Act in the Ninth Schedule was valid the two Acts could no~ be impugned on any ground.\n\nThe majority decision of this Court in Golak Nath case was that an amendment of the Constitution was law within the meaning of Article 13(2). There were two reasonings in the majority view arriving at the same conclusion. The majority view where Subba Rao, C.J., spoke was as follows : The power to amend the Constitution is derived from Articles 245, 246 and 248 of the. Constitution and not from Article 368. Article 368 deals only with procedure. Amendment is a legislative process. Amendment is law wilthin the meaning of Article 13. Therefore, if an amendment !lakes away or abridges rights conferred by Part III of the Constitutiion it is void. The Cons- tiitution First Amendment Act, the Constitution Fourth Amendment Act and the Constitution Seventeenth Amendment Act abridged the scope of fundamental rights. On the basis of earlier decisioos of this Court the Constitution Amendment Acts were declared oo be valid.\n\nOn the application of the doctrine of prospecllive over-ruling the amendments will continue to be valid.\n\nParliamen~ will have no power from the date of this decision (meaning thereby the decision in G.olak Nath case). to amend any of the prov1).ions of Part III of the Constitution as o:i take away or abridge the fundamental rights.\n\nThe Constitution Seventeenth Amendment Act holds the field. Therefore, the .Punjab Act and the Mysore Act cannot be questioned.\n\nThe concurring majority view of Hidayatullah, J. was this. The fundamental rights arc outside the amcndatory proccS& if the amendment seeks to abridge or take away any of the rights. The First, the Fourth and the Seventh Amendment Acts being Part of the Constitut'Oll by acquiescence for a long time cannot be chcllcngcd. These\n\n362 SUPREME COURT REPORTS (1973) Supp. S.CJI,\n\nOxistitution Amendment Acts contain authority for the Seventeenth Amendmei; it Act.\n\nAny further iinroad into fundamental i; ights as they exist on the date of the deci.ion will be illegal and unconstitutional unless it complies with Part Ill in general and Article 13(2) in particular. The constituent body will have oo be convened for abridging or taking away fundamental rights. The Punjab Act and the Mysore Act are valid not because they are included in the Ninth Schedule of the Cpnstitution but because they are protected by Article 31A and the assent of the President.\n\nThe two views forming the majority arrived at the same conclusion that an amendment of the Constitution being law within Qhe meaning of Article 13(2) would be unconstitutional if such an amendment abridged any fundamer.tal right. The leading majority view did not express any final opinion as to whether fundamental rights could be abridged by Parliament exercising its residuary power and calling a Constituent Assembly \"for making a new Constitution . or radically changing it\". The concurring majority view held that the fundamental rights could be abridged by suitably amending Article 368 to convoke Constituent Assembly. The concurring majority view was that a Constituent Assembly could be called by passing a Jaw under Entry 97 of List I and llhen that Assembly would be able .to abridge or take away fundamental rights.\n\nThe minority view of five learned Judges expressed n 3 judgments as against the majority view of six learned Judges in Golak Nath case was this.\n\nWanchoo, J. spoke for himself and two com:urring learned Judges -as follows.\n\nArticle 368 contains both the power and the pro- .ccdure for amendment of the Constitution. It is incomprehensible\n\nthat the residuary power of Parliament will apply to amendment of the Constitui:icm when the procedure for amendment speaks of amendment by ratification by the States. When an entire part of the Constitution is devoted to amendment it will be more appropiate to read Article 368 as containing the power to amend because there is no specific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without .express power to affect change legislative power cannot effect any change in the Constitution. Legislative Acts are passed under ihe power conferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the pro- ,_ visions of the Constitution.\n\nIf, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be acrciscd subject to the Constitution and it can1*Jt change the Constitution which is the fundamental law. It is because of the\n\nKESAVANANDA V. KERALA (Ray, J.) 363\n\n<lilference between the fundamental law and the legislative power under the Constitution that the power lP amend cannot be located in the Residuary Entry which is law making power under the Constitution.\n\nArticle 368 confers power on Prliament subject lP the procedure provided therein for amendment of any provision of the Constitution, It is impossible to introduce in the concept of amendment, any idea of improvement. The word \"amendment\" must be given its full meaning. This means . that. by amendment an existing Constitution or law can be changed. This change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether. An amendment of the Cons:itution is not an ordinary law made iinder the powers conferred und, er Chapter I of Part XI of the Constitution, and therefure, it cannot be subject to Article 13(2). It is strange that the power conferred by Article 368 will be limited by putting an interpretation on the word \"law\" in Article 13(2) which will include constitutional law also. The possibility of the abuse of any power has no relevance in considering the question about the existence of the power itself. The power of amendment is the safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary.\n\nThe two other supporting minority views were these. Bachawat, J. arrived at these conclusions. No limitation on the amending power can be gathered from the la!lgllllge of Article 368. Therefore, each and every part of the Constitution may be amended under Article\n\n368. The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as a law or a legislative Act. It is because a Constitution Amendment Act can amend the Constitution that it is not a law a•, d Article 368 avoids all reference to law making by Parliament. As soon as a Bill is passed in cqnformity with Article 368 the Constitution stands amended in accordance with the terms of the Bill. Amendment or change in certain Articles does not mean necessarily improvement.\n\nRal)laswami, J. expressed these views. The definition of law in Article 13(3) docs include in terms a constitutional amendnent though it includes any ordinance, order, bye-law, rule, regulation, norilica.t:ion, custom or usage. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatever. If it had been intended by the Constitution maken that the fundamental righas guaranteed under Part III should be completely outside the scope of Article 368 it. !s reasonable to assume that they would have made an express proviSwn to that effect.\n\n364 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nThe expression \"fundamental\" does not lift the fundamental rights above the Constitution illself.\n\nIn a matter of constitutional amendment it is not permissible to assume that there will be abuse of power and then utilise it as a test for finding out the scope of amending power.\n\nThe majority view in Golak Nath case was that au amendment of the Constirution pursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an amendment of the Constirution abridging fundamental rights will be void. The majority view was on the basis that there was conflict between Article 13(2) and Artit1e 368 and this basis was the result of the narure and quality of fundamental rights in the scheme of the Constitution.\n\nIt is, therefore, to be seen at the threshold as to whether there is any conflict between Article 13(2) and Article 368, namely, whether amendment of Constitution is law within the meaning of law in Article 13(2). Article 368 provides in clear and unambiguous terms that an amendment bill after compliance with the procedure stated therein and uppn the President giving assent to such bill the Constitution shall stand amended in accordance with the terms of the bill.\n\nThis constitutional mandate does not admit or provide any scope for any conflict with any other Article of the Constitution. This is the fundamental law. No other Artick of the Constitution has limited its scope. The moment the President gilves his assent to an amendment bi:ll the amendment becomes a part of the Constitution.\n\nThere cannot be a law before the assent of the President. Therefore, the validity of any such supposed law cannot arise. An amendment of the Constitution becomes a part of the fundamental law. The legality of an amendment i!s no more open to attack than of the Constitution itself. The opening part of amended Article 368, l!i11., \"An Amendment of this Constitution may be initiated\" and its concluding part before the proviso, vi111., \"The Constitutlion shall stand amended\" show clearly that the whole Constitution can be amended and no part of the Constirution is excluded from the amendment.\n\nHerein lies the vital distinction between the ConstitlUtion and the ordinary law. ·\n\nThe distinction lies in the criterion of validity. The ~111idity of an ordinary law can be questioned. When it is questioned it must be justified by reference to a higher Jaw. In the case of the Constitution the validity is inherent and lies within itself. The validity of constitutional law cannot be justilied by reference to another higher law.\n\nEvery legal rule or norm owes its validty to some higher legal rule or norm. The Constitution iS the basic norm. . The Constirution\n\nKESAVANANDA V, KERALA (Ray, J,) 365\n\ngenerate$ its own validity. It is valid because it exist!!. The Constitution is binding because it is the constitution. Any other law is binding only if and in so far as it is in conformity with the Constitution. The validity of the Constitution lies in the social fact of its acceptance by the community. The constitutional rules are themselves the basic rules of the legal system. The Constitution pre- . vails over any other form of law not because of any provision to that\n\neffect either in the Constitution or else where bug because of the underlying assumption to that effect by the community. If Parliament passes a law under any of the items in the Union List :bridging a fundamental right and also provides in that law itself that it shall not be invalid notwithstanding anything in Article 13 or Part\n\nIII of the Constitution, yet the law made by Parliament will be invalid to the extent of: its inconsistency with Part III of the Constitution. It will be invalid because Arti!; le 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid notwithstanding the Constitution.\n\nThe real distinction is that Constitutional law is the source of al1' legal. validity and is itself always valid. Ordinary law on the other hand must derive its validity from a higher legal source, which is ultimately the Constitution. Law in Article 13(2) of the Constitution could only mean that law which needs validity from a higher source and which can and ought ID be regarded as invalid when it comes in conflict with higher law. It cannot possibly include a law which is self validating and which 1, never invalid. The definition al: law in Article 13 enum.eralles more or J.css exhaustively all forms of law which need validation from higher source and which arc invalid when they arc in conflict with the Constitution. The dcfinitim docs not mention constitutional amendment. In is because an amendment being the Constitution itself can never be invalid. An amendment is made if the procedure is complied with. Once the procedure is complied With it is a part of the Constitution.\n\n!'he expression \"I.aw\" has been used in several Articles in Part III cl. the Constitution. These a:re Articles 17, 19 clauses (2) to (6),. 21; 22, 25, 26, 31; 33, 34 and 35. To illustrate, Article 17 states that\n\nuntouchability is abol!)!hcd ap~ its practice in any form is furbiddcn.\n\nAtr; icle 17 also states that the enforcement of any disability arising\n\nout oE untouchability shall be an offence punishable iii accordance with I.aw. The word \"I.aw\" in Article 17 docs not mean the Constitution. The Constitution leaves the mat1ICr cf enforcement and punishment to I.aw,\n\nThe foundation. of the majority view in Golak Nlllh case that Article 13(2) takes in constitu~ law within its purview is that an amendment is a legjsl.ative process and is .an exercise of legislative power. The majority relied on the decision in McCawley v. The King\n\n24-36 S. C. Indla/73\n\n366 SUPR.EME COUP.T JtEpORTS [1973] Supp. s.c.R.\n\n(1920) A.C. 69! and the Bribery Commissi®er v. Pedrick Ranasinghe 1965 A.C. 172 in suppon of the view that there is no distinction between ordinary legislation and constitutional amendment. The basis of the unanimous decision in Shankari Prasad case was on the distinction between legislative power and the . constituent 'power.\n\nTherefore, the majority view in Golak Nath case overruled the view in Slwnkari Prasad case. Article 13(2) expressly d!clares that law taking away or abridging the rights conferred by Part Ill shall be void. This principle embodies the doctrine of ultra vires in a written Constitution. The observation of Kania, C.J. in A. K. Gopalan v. The State of Madras 1950 S.C.R. 88 that Article 13(2) was introduced ex maiore cautela because even if Article 13 were not thre any law abridging or taking away fundamental rights would be void to the extent of contravention or repugnancy with fundamental rights in Part Ill refers to the doctrinie of ultra vires which i5 a necessary implication of our Constitution. Therefore, there is no distinction between Article 13(2) which expressly affirms the doctrine of. ultra oires and the necessary impliCation of the doctrine of. ultra llires which has been applied to every part of our Constitution.. If the express doctrine of ultra vires prevented an amendment of Part III of the Constitution contrary to its terms, equally an amendment oE other parts of the Constitution contrary to their terms would be prevented by the implied doctrine of 14/tra vires. The result would be that an amendment of the Constitution which contravened the tCll'JDS oE the -existing Constitution would be void. This would result in absurdity.\n\nThat is why Article 368 expressly provides for the amendment of the Constitution.\n\nMr. Palkhivala on behalf of the petitioner submitti:d that C90stitution amendment was law. within Article 13(2) . and was void to the extent to which it contravened the fvnd:ltncnta! rights aud Article 368 did not prevail oer or override Article 13 for these reawns. Reference was made to the form of oath in the Third Schedule which uses the words \"Constirotion as by law established\". This is said to mean that our Constitution was originally established lif l:lw and, therefore, every amendment thereto was likewise to be established by law. Article 13(1) is also said to rover constitutionallav( because though Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act 1935 the constitutional laws or the Indian Princely States or some other constitutional. laws cf llritish\n\nIndia were in existence. Therefore, the word \"Law'~ in' Article 13(2) will also include constitutional law. The word \"law\" in Article 13(2) will in its ordinary sense embrace constitutional -law, and there is no reason for reading the word \"law\", in a restricted sense io confine it to ordinary laws. The real question i$ not whether there arc any words of limitation in Articles 36&-but whether .there arc any .\n\nIWAVANANDA V. !WALA (Ray, J,) 367\n\nwords of limitation in Article 13(2). It was amplified to mean if a limitation has to be read in either .of the two Articles 368 and 13(2) there is no reason why it should be read in such a way as to enable parliament to take away or abridge fundamental rights.\n\nIn Article 368 the word \"law\" is not used at all. Chnsequently the language of Article 368 raises no question about the applicability of Article 13(2). It is inconceivable that constitutional laws of Indian Princely States or Constitutional laws of British India exist as constitutional laws after the coming inl!l existence of our Constitution. Our Constitution is the only fundamental law. All other laws which continue under our Constitution are ordinary laws. The fundamental error in including amendment of the Constitution in law under Article 13(2) is by overlooking the vital difference between the constituent and the legislative powers and in wrongly equating these powers. The definition of \"State\" in Article 12 includes Parliament. Part V of the Constitution cont.ailns provisions relating to the powers of the three organs of the Union Government, Chapter II of Part V relates to the legislative power of Parliament. Under Article 79 Parliament is the Union Legislature provided fior by the Constituti'on. Therefore, law in Article 13(2) must mean a w of Parliament functioning under Chapter II of Part. V; It cannot 111ean the Constitution itself or an amendment of the Constitution.\n\nThe reason is that the Constitution with its amend=nt is the supreme authority and the three organs of the State derive their powers from this supreme authority.\n\nThe word \"law\" when used in relation to constitutional law which is fundamental law and ordinary law is not a mqe homonym.\n\nIf the word \"law\" here .is not a mere homonym then it is a mistake to, think that all the instances. to which it . is applied must possess\n\neither a single quality or a single set of qualities in c0mmon. There is some general test or criterion whereby the rules of the fundamen tal law or the rules of the system of ordinary laws are tested and identified. When the word \"law\" is spoken ;111 connecti'on with ronstitutional law it cannot have the same meaning as ordinary law. It is not trary to use the WIOrd \"law\" in relation to constitutional Jaw in spite of itlS difference from ordinary law ..\n\nMr. Palkhivala contended that coostitutional laws o{ Princely States and of British India prior tn our Constitution survived as laws in force under Article '572. Article 372 became necessary to make a provision similar to section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947. The purpose of Article 372 is to negative the possi~ bility of any existing law in India being held to be no longer in force by reason of the repeal of the. law authorising its enactment.\n\n368 SUPREME COURT REPORTS (1973 j Supp. S.C.R,\n\nA saving clause of the type of Article 372 is put in to avoid challenge to laws made under the repealed Constitution. The total volume of law in the then British India had the legal authority up to 14 August 1947 by reason of the Government of India Act 1935. The Government of India Act 1935 with adaptations and the Indian Independence Act 1947 preserved the authority of those laws upto 25 January\n\n1950. In so far as it iis indisputable that the Government of India Ar.t, 1935 and the Indian Independence Act, 1947 were repealed, the repeal of those Acts was repeal of the constitutional law represented by\n\nthose Acts. By our Constitution there was a repeal of all other oonsti tutional laws operating in our country. There was repeal of \"Constitu• tion\" in Princely States.\n\nA distinction arises between the provisions of a Constitution which are described as constitutional law and provisions of a statute dealing with a statute which is treated to have constitutional aspects.\n\nAn example of the latter type is a statute which proviides for the judicature. Mr. Seervai rightly said that the two distinct senses of constitutional law are mixed up in the contention of Mr. Palkhivala. In the first sense, constitutional law is applicable to a provision of the Constitution, and in the second sense, to a law enacted under the Constitution dealing with certain classes of subject matter.\n\nLaws of the second class fluctuate. An amendment of the Constitution becomes a part of the Constitution itself. Mr. Scervail rightly contended that in order to show that law in Article 13(2) includes amendment of the Constitution it is also necessary tn show that the expression \"laws in force\" in Article 13( 1) includes constitution amendment or the Constitution itself. It is impossible to accept the submission that the word \"law\" in Article 13(2) includes the Constitution. The Constitution itself cannot include the Constitution. It is the Constitution which continues the laws in force. Therefore, law in Article 13 is law other than the Constitution and a fortiori it is other than amendment to tl1e Constitution.\n\nIn non-British territory on the Constitution coming into force the Constitution of Princely States lost its character as constitutional law in the strict sense. 'It is in that strict sense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution coming into existence no other constitutional law survived. Article 393 of our Cons. titution says that the Constitution may be called the \"Constitution of India\". The Preamble recites that the People in the ConstitucnO Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution.\n\nAll other laws whatever their previous status as swict constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Artiicle m .\n\nKESAVANANDA V. KEllALA (Ray, J.) 369\n\nIn a broad sense law may include 11he Constitution and the law enacted by the legislature. There is however a dear demarcation between ordinary law in exercise of legislative power and constitutional law which is made in exercise of constituent power.\n\nTherefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to inake law and constituent power is the power to make or amend constitutional law and since law in its ordinary sense, includes constitutional law the legislative power is the genus of which the constituent power is the species. The difference between legislative and constit~nt power in a flexibk or uncontrol\\ed Constitution is conceptual depending upon the subject matter. A Dog A!Ot in England is prima facie made in exercise of legislative , power. The Bill of Rights was made in the exercise of constituent power as modifying the existing <i>nstitutional arrangement.\n\nBut this conceptual difference docs not produce different legal consequences, since the provis'ions of a Dog Act inconsistent with the earlier provisions of the Bill of Rights would repeal those provisions pro tanto. In a rigid or controlled Constitution the distinction between legislative power and constituent power is not only conceptual but material and vital ' in introducing legal consequences. In a aontrolled Constitution it is not correct to say that legislatiye p0wer is the genus of which constituent power is the species. The queston immediately arises as to what the differentia is which distinguishes that species from other species of the same genus. It would be correct to say that the law making power is the genus of which leglative power and constituent power are the species. The differentia is found in the different procedure prescribed for the exercise of const'tuent power as distinguished from that prescribed for making ordinary laws. The distinction between legislative power and constituent power is vital in a rig'd or controlled Constitution, because it is that distinction \"'.hich brings ; n the doctrine that a law ultra vires the Constitution is void, since the Constitution is tlx touchstone of validity and that no provision of the Constitution can be ultra vires.\n\nThe legislatures constituted under our Constitution have the power to enact laws on the topics indicated in Lists I oo III in the Seventh Schedule or embodied specifically in certain provisions of the Constitution. The power to enact laws carries with it the power to amend or repeal them. But these powers of legislatures do not include any power to amend the Constitution, because it is the Costi rucnt Assembly which enacted the Constitution and the status g11en by Article 368 to Parliament and the State legislatures, is the status of a Constituent Assembly. The distinction between the power ta\n\n370 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\namend the Constitution and the ordinary power to enact laws is fundamental to all federal Constitution. When Parliament is engaged in the amending process it is not legislating. It is exercising a particular power which is ; ui generi; bestowed upon it by the amending clause in the Constitution. Thus an amendment of the Constitution under Article 368 is constituent law and not law within the meaning of Article 13(2) and law as defined in Article 13(3)(a).\n\nThe procedure that Bill for amendment of the Constitu:ion has to be introduced in either House of Parliament and passed by both Houses does not alter the sta11us of Parliament to amend the Constitution as a Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Comtituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Co1tstituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions not as a legislature but as a Constituent Assembly. In Australia when a Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the process is not' ordinary legislative process of the Commonwealth Parliament. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amenclment must be ratitie.J by at least one half of the State legislatures and the process is radicaHy different from ordinary legislative procedure. The Union legislature acting under Chapter II of Part V has no connection with the State legislatures. Therefore, when amendment is affected under the proviso to Article 368 Parliament does not act as a Union legislature. The feature that in the passage of the bill for amendment of the Constitution the Hlouse of Parliament has to adopt the procedure for ordinary legislation has little bearing. If the intention of the framers of the Constitution was to leave to the Union legislature the power to effect amendments of the Constitution it would have been sufficient to insert a provision in Chapter II of Part V in that behalf without enacting a separate part and inserting a provision therein for amendment of the Constitution.\n\nUnder clause (e) of Article 368 the Article itself can be amended. Therefore, an amendment of Article 368 providing that provisions in Part III can be amended will be constitutional. If it was intended by Article 13(2) ro exclude Part III altogether from the\n\nKESAVANANDA V. KERALA (Ray, J.) 371\n\noperation of Article 368 clause (e) would not have been enacted. The Constituent Assembly thus enacted Article 368 so that the power tD amend should not be too rigid nor too flexible. Clause ( s) of Article 368 requires an amendment to be ratified by not less than half the nti, mber of States. The title of Part XX and the opening words of Article 368 show that a provision is being made for \"amendment of .Ws Constitution\" which in its ordinary sense means every part of the Constitution. This would include Article 368 itself.\n\nThere is no limitation imposed upon or exception made to the amendments which can be made. I~ is not permissible to add to Article 368 words. of limitation which are not there. ' The initiative for an amendment of the Constitution is with Parliament and oot with the States.\n\nA bill for amendment is to be introduced in either House of Parliament.\n\nAgain, a bill must be passed by each House by not less than two thirds of the members present and voting, the requisite quorum in each House being a lll:!jority of its total membership. In cases coming under the proviso the amendment must be ratified by the legislatures of not less rhan\n\nhalf the number of States. Ordinary legislative process is very different; A bill initiating a law may be passed by majority of members present nd voting at a sitting of each House and at a joint sitting of. House, the quorum for the meeting of either House being one tenth .of the total members of the House.\n\nThe legislative procedure is prescribed in Articles 107 to 111 read with Article JOO.\n\nArticle 100 states \"save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shali be determined by a majority of votes of the members present and voting\". Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words \"the amendment shall also require to be ratified''. The first part of Article 368 requires that a bill must be passed in each House (I) by majority of the total membership of that House and (2) by a majority of not less than two thirds of the members of that House present and voting.\n\nThese provisions rule out a joint sitting of either House under Article 108 to resolve the disagreement between the two Hlouses. Again the majority required to pass a bill in each House is not a majority of members of that House present and voting as in Article 100 but a majority of the total membership of each House ancl a majority 10f\n\nnot less than two thirds of the members of that House present and voting.\n\nThese provisions are not only important safeguards when amending the Constitution, but also distinguishing features of C'.onstituent power as opposed to legislative power. U n<ler the first part of unamended Article 368 when a bill is passed bv requisite majority of each House the bill must be presented for the President's assent.\n\n372 SUPREME COURT REPORTS [1973] Supp. S.C.R.\n\nParliament's power to enact laws is not dependent on State legislature, nor can it be frustrated by a majority of State legislatures.\n\nThe provisions in the proviso to Article 368 for ratification by the legislatures of the State constitute a radical departure from the ordinary legislative process of Parliament, State legislative process of ratification cannot possibly be equated with ordinary legislative process. If the bill is not ratified the bill fails. If it is ratified it is to be presented to the President for his assent. If the President assents the procedure prescribed by Article 368 comes tX> an end and the consequence prescribed comes into operation that the . Constitution shall stand amended in accordance with the bill. But the result is not law, but a part of the Constitution and no court can pronounce any part of the Constitution to be invalid.\n\nThe exercise of the power of ratification by the State legislatures is constituent power and not ordinary law making power. It cannot be said that Article 368 confers constituent power under its proviso but not under the main part. If the procedure has been followed the invalidity of an amendment cannot arise.\n\nThe provisions in Article 4, 169, paragraph 7(2) of the Fifth Schedule and paragraph 21(2) of the Sixth Schedule were referred to for the purpose of showing that the word \"law\" is used in those. provisions relating to amendments ro the Constitution. It is, therefore, said that similar result will follow ih the case of all amendments.\n\nThese four provisions confer on Parliament limited power of amendment. There are two features common to all these provisions. First, they confer on Parliament a power to make a law which inter alia provides for the specific class of amendments. Second .. each of these provisions states that \"no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose ot Article 368\".\n\nThe power to amend under any of these four provisions is a specific power for specific amendments and not a legislative power contained in the Legislative List or Residuary Legislative List.\n\nThe amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment . of Schedules I and 4 and it is necessary to make amendments which are supplemental, incidental and consequential.\n\nIn making such a law in so far as it affects the State but not Union territory a special procedure has to be followed.\n\nUnder Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessary law on a resolution being passed by the State Legislative Assembly for such abolition or creation by a majority of the membership\n\nKESAVANANDA V. KERALA (Ray, J.) 373\n\nof the Assembly and by majority of not less than two thirds of the members present and voting. It Parliament makes snch a law that law must make the necessry amendments to the Consti<tution.\n\nSchedules 5 and 6 pmvide for the administration of the Scheduled and Tribal areas which are governed by Part X and not by Part XI by which the Union and States are governed. The Scheduleds provide a mode of governance of those areas which is radically different from the Government of the Scates and the Union. Part X of the Constitution unlike Part XI is not \"subject no the provisions of this Constitution\". Paragraph 7 of Schedule 5 and paragraph 21 of Schedule 6 confer on Parliament a power to amend the schedules by law but no special procedure is prescribed for making such a law.\n\nNo question relating to those four provisions, however arises in the present case. In Article 368 the word \"law\" is not based at all.\n\nThese four provisions for amendment deal with matters in respect of which it was considered desirable not to impose requirements of Article 368, and, therefore, it became necessary expressly to provide that , such amendments shall not be deemed to be amendments of the Constitution for the purpose of Article 368. These four provisions indicate the distinction between the constituent power and the legislative power. If the power of amendment was located in the residuary Entry No. 97 in the Union List it would not have been necessary to grant that power of amendment again in these four provisions. These four provisions indicai.: that the Constitution makers intended to confer on Parliament power to make amendments in the. provisio11s of the Constitution and having provided for a particular procedure to be followed in respect of matters covered by those four provisions it conferred a general power on Patliament to make an amendment to the other Articles after complying with the requirements of Article 368.\n\nThe majority view in Golak Nath case said that Parliament could rail a Constituent Assembly either directly under the residuary power <>r pass a law under the Residu•ry Entry to call a Constituent Assembly for amendment of fundamental rights. Of the two views forming the majority one view did not express any opinion as to whether such a Constituent Assembly could take away or abridge fundamental rights but the other view expressed the opinion that such a Constitu ent Assembly oould abridge fundamental rights. The majority view in Golak Nath case was that Parliament is a constituted body and not a constituent body and a constituted body cannot abridge or take .away fundamental rights. The majority view indicates that a comtituent power was required to amend the fundamental rights.\n\nThe majority view has totally ignored the aspect that constituent power is located in Article 368, and, liherefore, amendment under the\n\n374 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nArticle is not a law within the meaning of Article 13(2). If Parliament is a constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body could bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have a strange and startling result.\n\nIn the scheme of the Constitution containing Article 368 a Constituent Assembly will be called extra constitutional means and oot one under the Constitution. A constitution can be amended only in accordance with the process laid down in the Constitution. No other method is constitutionally possible than that indicated in the provision for amendment of the Constitution. Once the Constitution has vested the power to amend in the bodies mentioned therein that is the only body for amending the Constitution. The people who gave the Constitution have expressed how it is to be changed.\n\nThe distinction between constituent and legislative power is brought out by the feature in a rigid Constitution that the amendment is by a different procedure than that by which ordinary laws may be altered. The amending power is, therefore, said to be a re-creation of the Constituent Assembly every time Parliament amends. re-creation in accordance with Article 368.\n\nThe two decisions in McCawley v. The King Im A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in Golak Nath case relied II'.) hold that amendment to the Constitiut1on is an ordinary legislative process do not support that conclusion. The difference between flexible or uncontrollr.d and rigid or controlled Constitutions in regard to amendment is that there may be special methods of amendment in rigid or ' controlkd Constitution. In a rigid Constitution amendment is not b1' exercise of ordinary legislative power. The power to amend is, therefore, described in a rigid Constitution as constituent .power because of the nature of the power. In a flexible Constitutron the pr<>- cedure for amendment i; the same as that of making ordinary law. :\\ Constitution being uncontrolled the distinction between legislativeand constituent powers gets obliterated because any law repugnant to the Constitution pro tanto repeals a Constitution as wa> held in McCawley case. Dicey in his Law of the Constitution (10th Ed.)\n\nKESAVANANDA V. KER.ALA (Ray, J,) 375\n\nillustrates the view by his opinion that if the Dentisrs Act said anything contrary to the Bill of Rights which can be described as constitutional document the Dentists Act would prevail. In a flexible or unwritten Constitution the word constitutional law is imprecise as it is used in respect of subject matter of law, e.g. a law dealing wi:th the legislature. In a rigid or written ConstitutiPn whatever is in the Constitution would be the law of the Constitution.\n\nIn M cCawley case the validity of the appointment of Mccawley as a Judge of the Supreme Coun of Queensland was challenged as void on the allegation that section 6 sub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of the Constitution of Queensland\n\n1867. The Industrial Arbitration Act of 1916 by section 6 sub-section ( 6) authorised the Governor to appoint any Judge of tl1e Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge c>f ilie Supreme Coun during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Counci<l by commission reciting section 6 sub-section (6) appointed Mccawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good behaviour. By sections 15 and 16 of the Oonstitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The oontention was that the appointment of Mccawley under the Industrial Arbitration Act 1916 for a limited period of seven years was invalid since the Act was inconsistent with the Constitution Act 1867 and further that the Act of 1916 could not repeal or modify the provisions of the Constirution Act.\n\nThe Privy Council held that the Legislature of Queensland had power both under the Colonial Laws Validity Act 1865 section 5 and apan therefrom under clauses 2 and 22 of the Order-in-Council of , 1859, section 7 of the Act 18 & 19 Viet. c. 54 and sections 2 and 9 of the Constitution Att of 1867 to authorise the appointment of a Judge of the Supreme Court for a limited period. Section 7 of the Act 18 & 19 Viet. c. 54 intended an order in Council to' make provision for the government of ilie Colony and for the establishment of a legislature. The Order-in-Council 1859 by clause 2 gave full power to ilie legislature of the Colony to malce further provision in iliat bee\n\nhalf. The Order-in-Council of 1859 by clause 22 gave the legislarure full power and auiliority from time to time to make laws altering or repealing all or any of ilie provisions of this Order in the same manner as any other laws for the good Government of the colnny.\n\n376 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nSection 5 of the Colonial Laws Validity Act gave the legislature full power to alter the Constitution.\n\nSection 2 of the Constitution Act of 1867 gave the legislature power to make laws for the peace, welfare and good government of the Oolony.\n\nSection 9 of the Constitution required a two thirds maiority of the legislative Council antl Legislative Assembly as a condition precedent of the validity of legislation altering the Constitution qf the Legislative Council. Section 6 sub-section (6) which authorised an appointment as a Judge of the Supreme Court only during the period during which the person appointed was a Judge of the Court of Industrial Arbitration was found to be valid legislation. It was found that the Constitution of Queensland was a flexiable as distinct from rigid Constitution. Power to alter the Constitution by ordinary law was also said to exist both in virtlUe of the Colonial Laws Validity Act, 1865 section 5 and independently of that Act in virtue of dause 22 of the Order in Gouncil 1859 and sections 2 and 9 of the Constitution Act of 1867.\n\nThe decision in McCawlay case shows that unless there 1.s a special procedure prescribed for amending any part of the Constitution tht Constitution is uncontrolled and can be amended bv the manner prescribed for enacting an ordinary law and therefo; e a subsequent law inconsistent with the Constitution would pro tanto repeal the Coustitution. The decision also established that a Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed.\n\nThe legislature of Queenslaml was found to be master of its own household except in so far as its powers were restricned in special cases. No such restriction was established in the case before the Privy Council. The legislature had plenary power there. The legislature was not required to follow any particular procedure or to comply with any specified conditions before it made any law inconsistent with any of the provisions of constitutional document.\n\nThe contention of the respondent in Mccawley case was that the Constitution of Queensland was controlled and that it could not be\n\naltered merely by enacting legislation inconsistent with its Articles but tlut it could be altered by an Act which in plain and unmistakable intention of the legislature to alter consequently gave effect to that intention by C1perative provisions.\n\nThe Judicial Committee thought this Constitution would amount to a Constitution which was neither\n\nKESAVANANDA V. KERALA (Ray, J.) 377\n\ncontrolled nor uncontrolled. It was not controlled because the future generation could by a merely formal Act correct it at pleasure.\n\nIt was said to be not uncontrolled because the framers prescribed to their successors a particular mode by which they are allowed to effect constitutional changes. Section 22 of the Order in Council conferred power and authority in legislature from time to time to make laws altering or repealing all or any of the provisions of the Order in Council in the same manner as any other laws for the good government of the country. The Constitution Act of 1867 was contended to enact certain fundamental organic provisions of such a nature as to render the Constitutioo controlled. It was found impossible to point\n\nto any document or instruction giving or imposing on the Constitution of Queensland such a quality. The decision in McCawley case related to uncontrolled Constitution which gave the legislature full power to make laws except on one subject and, therefore, a law made by the legislature under such a Constitution could pro tanto conflict with and repeal the Constitution. That is not our Constitution.\n\nIn Ranasinghe case the validity of the appointment of Bribery Tribunal was challenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was not appointed by the Judicial Service Commission in accordance wicli the provisions of section SS of the Ceylon Constitution Order in Council. It was, therefore, not lawfully appointed. It was common ground that the appointment of the Bribery Tribunal was not in accordance with section SS of the Ceylon Constitution Order in Council, 1946. Section SS vested in the Judicial Service Commissioner the appointment, dismissal and disciplinary control of JudiciaU Officers, viz., Judges of lesser rank. The removal of Judges of the Supreme Court could be by the Governor General on an address of the Senate and the House of Repesentatives.\n\nSection 29 of the Ceylon (Ooostitution) Order in Council provided in sub-sections (1), (2), (3) and (4) as follows:-\n\n\"29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.\n\n(2) No such law shall-(a) prohibit or restrict the free exercise of any religion;_\n\n(3) Any law made in contravention of sub-section (2) of this section shall, to the extent of such contravention, be void.\n\n( 4) In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of\n\n3 78 SUPREME COURT REPORTS [1973 j Supp. S.C.L\n\nany other Order of Her Majesty in Council in its application to the I.sland:\n\nProvided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a cercificatie under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present).\n\nEvery certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in arw court of law\".\n\nThe Judicial Committee found that there was a conflict betwe{n section 55 of the Ceylon Constitution Order and section 41*1the.\n\nBribery Amendment Act. The Privy Council found that section (4) of the order was attracted but the requirements of section 29 had not been complied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of the Speaker under .the proviso to section 29(4) of the Ceylon Constitution Order was an essential part of the legislative process. There was no such certificate in the case of the legislation under which the appoinltmcnt of the impugned Tribunal was made. The Judicial Commiee said that .a legislature has no I\".>wer to ignore the conditions of law niaking\n\nthat are imposed by the regulating instrument. This restriction exists independently of the question whether the legislature is sovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as happened in M cCawley case with regard to the Constitution d Queensland.\n\nThe Judicial Committee said \"A Constitution can, indeed, be altered or amended by the legislature, i£ the regulating instrument so provides and if the terms of those provisions arc complied with; and the alteration or amendment may include the change or abolition of these provisions. But the proposition which is not acceptable i~. thar .a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution d a bare majority which its own constituent instrument has s:iid shall not be valid law unless made by a different type of maj()rity or by a different legislative process\".\n\nIt was contended that just as the legislature of the Colony of Queensland had power by mere majority voile to pass an Act that was inconsistent with the prpvisions of the existing Constitutiol). of. that Colony as oo the tenure of Judicial Office so the legislature of Ceylon had no less a power to depart from the requi'rcments of a section such\n\nKESAVANANDA V. KERALA (Ray, J.) 379\n\nas section 55 of the Ceylon Omstitution, notwithstanding the wording of sections 18 and 29(4). Section 18 in effect says that a legislation can be passed by a majority of votes subject to the provisions in section 29(4) ri. the Constitution. The Judicial Committee said that in\n\nA..-Cawley case the legislature had full power to make laws by a majority except upon one subject that was not in question and the legislation was held to be valid because it was treated as pro tanto an alternation llf the ConstitutilOO which was neither fundamental i,, the sense of being beyond change nor so constiltUted as to require any special process to pass a law upon the topic dealt with. The word .. \"fundamental\" in the sense of \"being beyond change\" refers to express limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are fundamental features of the Constitution which cannot be amended.\n\nThe legislature purwrted to pass a law which being in conflict with section 55 of the Order in Council must be treated if it is to .be valid; as an implied alteration of the constiutional provisions about the appointment of judicial officers. Such alterations could only he made by laws which complied with the special legislative procedure laid down in section 29( 4). The provisions in section 29( 4) were found not to confer on the Ceylon legislature the general power ti>\n\nlegMature so as to amend the Constitution by ordinary majority res<>- lution which the Queensland legislature was found to have under section 2 of the Queensland Constitution Act.\n\nRantuinghe case shows that Parliament which by its own Act imposed procedural conditions upon the legislative process is no more limited or non-sovereign than a legislature which has such conditions imposed on it by the constitutional instrument. A constitutional instrument which places procedural restraints upon the forms of law making places the legislature under a compulsion to obey them. In\n\nMcCawley case it was said that the Colonial Legislature with plenarv powers could treat the constitutional document which defined its powers as if it were a Dog Act. This proposition as a result of Ranasinghe case is narrowed to the extent that where provisions for procedural special majority are laid down in the constitutional document they cannot be treated as a provision in the l)()g Act might be.\n\nThese decisions indicate the distinction between procedural and .substantive limitations on the legislative process. In Ranafinghe case the issue was one of personal liberty in the sense that the respondent claimed the right not to be imprisoned except by a valid law. No question was raised about the right of religion protected by sections 29(2) and (3) of the Ceylon Constitution. It was also not the respondent's case there that any provision was unamendable. It would be\n\n380 SUPREME c; ouRT REPORTS (1973] Supp. S.C.R.\n\nunusual for the Privy Council to say by way of an obiter dictum that a provision was not amendable contrary to the respondent's submission. Though the Privy Council did nl>o use the words \"legislative and constituent\" in distinguishing ordinary law from law amending the Constitution, the Privy Council in referring to. the Ceylon Constitution instrument showed that the familiar distinction is the basis of the judgment.\n\nThe Privy Council is dealing with section 29 took note of the special heading under which section 29 appears in the Constitution.\n\nThat special heading is \"legislative power and procedure\". The opening words of section 29 are that subject to the provisions of this order Parliament shall have powers to make laws. These are similar to the opening words in Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the ordinary legislative procedure for making laws by a bare majority unless otherwise provided for by the Constitution, which I.< to be found in section 29( 4) of the Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29(2) confers rights of freedom of religion and section 29(3) states that no laws shall be made prohibiting or resoricting such freedom. Part III of our Constitution contains among other fundamental rights, rights to freedom of religion. Section 29(3) expressly makes laws in contravention of section 29(2) void to the extent of contravention. Article 13(2) of our Can, titution expressly makes law which takes away or abridges fundamental rights void to the extent of the QC>n!'ravention.\n\nSection 29( 4) of the Ceylon Constitution dealing with the amendment of the Constitution does not expressly make void a law amending the Constitution.\n\nIt follows from McCawley case and Ranasinghe case that a legislature has no power to ignore the conditions of law making imposed upon it which regulate its power t.o make law. The Ceylon legislature had no general power to legislate so as IKl amend its general power by ordinary majority resolution such as Queensland legislature was found to have under section 2 of the Queensland Constitution.\n\nPe>ce, order and good government in sectibn 29(1) of the Ceylon Constitution is not the same as amendment contemplated in section 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social compact. The compact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the footing that the various rights conferred, liabilities imposed and duties prescribed under the law cannot be altered in the ordinary course of legislation by a bare majority. But if all these were to be changed then such a change could only be made under the strongest safeguard of the amending process which in the case of Ceylon was not less\n\nKESAVANANDA fl. KERALA (Ray, J.) 381\n\nthan two-third of the absolute membership. These rights arc the solemn compact. These valuable rights are conferred on the people.\n\nUnder ordinary law by ordinary majority they cannot be taken away.\n\nThe absence of an express provision in section 29(4) of the Ceylon Constitution that an amendment of the Gmstitution in contravention of the terms of that sub-section shall be void need not support the conclusion that such an amendment was valid. Section 29(1) of the Ceylon Constitution is expressed to be \"subject to the provisions of\n\nthis Order\" and any power under section 29(4) is expressly subject to the proviso there. The Privy Council held that the opening words of section 29 introduced into the Constitution of Ceylon the necessarily implied doctrine of ultra virefi The proposition will apply directly to the same opening words of our Article 245. The Privy Council accepted the distinction made in McCawlay case between controlled and uncontrolled Constitutions by emphasising the observation in McCawley case with reference to section 9 of the Queensland Constitution.\n\nThe description of section 29(2) of the Ceylon Constitution as an entrenched provision means that it can be amended bun only by special procedure in section 29(4). That is the meaning of the word \"entrenched\". This meaning alone is consistent with the clear language of the amending power and also with the decision. Section J:l( 4) docs not limit the sovereignty of the Ceylon legislature because the legislature can always pass the amendment after getting tw<>-thirds majority and the certificate.\n\nC'..ounsel for the respondent in Ranasinghe case stated that there was no limitation except the procedure and even that limitation could be removed by amendment complying with sub-section ( 4). The Privy Council affirmed that position. There is nothing to prevent by appropriate amendment a deletion of section 29( 4) of the Ceylon Constitution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29(1) is not legislative power alone but a composite power when read along with section 29( 4) in the context of the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections ,(2) and (3) of section 29 ace not. the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to sub-sections (2) and\n\n(3) , of sectibn 29. If section 29(1) is a composite legislative and constituent power and sub-section (2) and (3) arc a restraint on legislative power the constituent power under sub-section ( 4) remains unaffected. The seqni\n\nter is that section 29( 4) is consisrcnt ooly with the view that so far as amendment of sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under section 29( 4). The Privy Council took the widest view of the amending power. In fact the narrower view was not argued.\n\n2S-36 S. C. India/73\n\n382 SuPUME COUllT Jll!POllTS [ 1973] Supp. s.c.ll.\n\nOur Constitution in Article 13(2) by its express declaration with reference to law and the State widely defined has no higher dlicacy in rendering a law in contravention of its terms void than the opening words of Article 245 have in rendering a Jaw void in contravention of term mentioned therein. Therefore, in treating Article 13(2) as having that effect in regard to constitutional amendment the majority judgment in Golak Nath case was inept. In rejecting the distinction between legislative and constitutent powers the leading majority view in Gola!( Nath case was induced by the absence of the use of the labels but the same concept.- were clearly indicated by the Privy Council by wholly describing the characteristic features of legislative and constituent powers.\n\nIf Article 368 had begun with a non-0bstantc clause it could not have been said that amendment under Arti<:le 368 would be law within the meaning of Article 13(2). The Attorney General rightly said that there is no non-0bstante clause in Arti<:le 368 because of the quality of amending power and because the amending power is a constituent power and not ordinary legislative power. This is the position of the amending clause in a written Constitution. When the power under Article 368 is exercised Parliament acts as a recreation of Constituent Assembly. Therefore, such power cannot be restricted by or widened by any other provi.<ion. As soon as an amendment is made it becomes a part of the Constitution. An amendment prevails over the Article or Articles amended. The fact that Article 368 confers constitutent powers is apparent from the special conditions prescribed in the Article. Those conditions are different from ordinary Jaw making process. Article 368 puts restraints on the ordinary law making process and thus confers constituent power. The Constituent Assembly was fully aware that if any limitation was to be put on the amending power the limitati<Jn would have to be expressly provided foi.- Arti<; Je 305 ., f the Draft Constitution provided reservation of seats for certain sections of people in the legislature for 10 years. This reservation was not accepted by the Constituent Assembly. This shows that if the Drafting Committee or the Constituent Assembly wanted to exclude fundamenal rights from the operation of Article 368 corresponding to Article 304 jn the Draft Constitution they could have expressly done so. .\n\nIn Ghulam Sarwar v. Union of India (1967 2 S.C.R. 271 it was $aid there was a distinction between deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by President in exercise of a power conferred on him under constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was not a law within the meaning of Article 13(2). In Mohd. Yakub v. State of fammu & Kashmir (1968) .2 S.C.R. 227 the majority view of the Constitution Bench was that an\n\nKESAVANANDA V, KERALA (Ray, J.) 3&3\n\norder of clie President under Article 359 was not Jaw within the meaning of Article 13(2). There is no distinction between Article 358 nd Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by tbe President declaring suspension of tbe enforcement of any fundamental right during the period of emergency. In Mohd.\n\nY akub case it was said that it could not mean tha.t an order under Article 359(1) suspending the enforcement of a particular fundamental right had still to be tested under the vary fundamental right which it suspended. Mohd. Yakttb case establishes that tbe expression \"law\" in Article 13(2) is not all embracing in spite of the exclusive definition of law in Article 13(3) (a).\n\nThe word \"law\" appears in various Articles of our Constitution but not in Article 368. The reason is that the power under Article 368 is not a power to make ordinary laws under the Constitution but is the constituent power. There could be no law within tbe meMing of Article 13(2) at any stage before the amendment became a part of the Constitution under Article 368. There is no hiatus between an amendment being a law and thereafter a part of tbe Constitution. Immediate ly upon the passage of the Bill for tbe amendment the Constitution stands amended.\n\nThe historical background of Article 13(2) throws some light on the question as to whether Article 13(2) prevails over Article 368. On\n\n17 March, 1947 tbe Constitutional Advisor Sir B. N. Rau had addressed a letter to the members of Central and Provincial legislatures. A questio1U1aire was annexed to that letter. Question No. 27 was \"What provisions should be made regarding amendments to the Constitution\". A note was appended to that question which will be found in Shiva Rao Framing of India's Constitution referred to as Shiva Rao Vol. II pp. 44~451. The methods of amendment of Constitution in the United Kingdom, Canada, Australia, United States of America, Switzerland and Ireland were elucidated in that note. The note also drew attention that the fact that in various Constitution express limitations were put on amending certain provisions of tbe Constitution. The portion of the note relating to the Constitution of Australia indicated such limitations.\n\nThe draft report of the sub-Committee on fundamental rights dated 3 April 1947 contained an annexure which dealt with fundamental rights. See Shiva Rao Vol. II p. 137 seq. Clause 2 of the annexure was as follows :\n\n\"Any law or usage in force within tbe territories of the Union immediately before the commencement of this Constitution and anv law which may hereafter be made by the State inconsistent witb\n\n384 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nthe provisions of this Chapter/Constitution shall be void to the extent of such inconsistency\".\n\nThe Constitutional Adviser suggested that the word \"Constitution\" was preferable to the word \"chapter\" because the entire Constitution was to prevail over law.\n\nOn 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim repon addressed to the President of the Con. f'tituent Assembly containing an a.nnexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that repon was as follows :\n\n\"All existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this pan of the Constitution shall stand abrogated to the extent of such inconsistency nor shall the Union or any unit may make any law taking away or abridging any such right\".\n\nClause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to clause 2. The amendment was as follows : In clause 2 for the words \"nor shall the Union or any unit make any law taking away or abridging any such right\" the following be substituted: \"Nor shall any such right be taken away or abridged except by an amendment of the Constitution\". The amendment was accepted as will appear in Constituent Assembly Debates Vol. III p. 416.\n\nIn October, 1947 the Draft Constitution was prepared by the Constitutional Advi:SOr. Clause 9(2) of the said Draft Constitution which later on corresponded to Anicle 13(2) of our Constitution was as follows:\n\n\"Nothing in this Constitution s)lall be taken to empower the State to make any Jaw which cunails or taking away any of the right~ conferred by Chapter II of this Pan except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to die extent of the Contravention, be void''.\n\nIt will be seen that clause 9(2) in the Draft Constitution included the qualification \"except by way of amendment of the Constitution under 6C(:tion 232\". Clause 232 in the Draft Constitution prepared by the Constitutional Advisor became Article 304 in the Constitution prepared by the Drafting Committee and eventually became Article 368 of our Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on 30 October, 1947 at a meeting gave a note\n\nKESAVANANDA V. KERALA (Ray, J.) 385\n\nforming the minutes of that meeting that clause 9(2) should be revised as follows :-\n\n\"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this sub.section shall, to the extent of the contravention, be void\".\n\nNo reason is recorded in these minutes as to why the resolution adopted by the Constit!Uent Assembly by passing Shri Santhanam's amendment was disregarded. No indication was given in the forwarding letter of Dr. Ambcdkar in the Note appended thereto as to why the amendment of Shri Santhanarn which had been accepted by the Constituent Assembly was deleted. Nor docs the Draft Constitutron indicate either by sidelines or in any other manner that the decision of the Constituent Assembly had been disregarded.\n\nThis history of the formation and framing of Article 13(2) shows that the intention of the Constitutent Assembly was that Article 13(2) does not control the Article relating to the amending of the Constitution. It must be assumed that the Drafting' Committee consisting of eminent men considered that an expres.< exclusion of the amending Article from the operation of the clause corresponding to Article 13(2) was u=cssary and the fear that that Article would cover the amending Article was groundless. It also appears that no discussion took place after the Draft Constitution had been presdlted to the Constituent Assembly by Dr. Ambcdkar o~ the deletion or disregard of Shri Santha nam's amendment. The history of Article 13(2) shows that the Constituent Assembly clearly found that it did not apply to an amendment of the Constitution.\n\nThe distinction between constitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the C..onstitution can be declared void because the Constitution is the touchstone of validity. There is no touchstone of validity outside the Constitution. Every provision in a controlled Constitution is essential or So thbught by the frers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The histnrical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the constituent power to authoritic$ mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 which provided for a limitation as to time for amendment of certain matters was eventually dted. If the framers of the Constitution wanted to forbid something they .would say so.\n\n386 SUPREME COURT llEPOllTS [ 1973] Supp. s.c.a.\n\nThe vitality of the constituenr power not only indicates that the Constitution is in the words of Maitland the suprema potestas but also the fact that the amending power is put in a separate Article and Part of the Constitution establishing that it deals with a topic other than legislative power and the power is meant to be exhaustive leaving nothing uncovered. The vary fact that amending power is not put in any legislative power or is not attached to a subject which is the subject matter of legislative power leaving aside the four sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21 Schedule 6 containing specific power of amendmenr shows that that amending power was meant to be exhaustive and plenary. If a power of amendment without any express limitation was given it was because a legal constitutional way of bringing a change in the Constitution was desirable or necessary. Otherwise there would be no legal way of effecting the change, It cannot be attributed to the framers of the Constitution that they intended thar the Constitution or any part of it could be changed by unconstitutional or illegal methods.\n\nIf an amendment of the Constitution is made subject to Article 13\n\n(2) the necessary conclusion then is that no amendment of the Constit11tion is possjble. The opening words of Article 245 which deals with legislative power indicate that any law made under Article 246(1) read with List I of the Seventh Schedule is subject to the limitations on legislative power imposed by all the Articles in the Constitution. These limitations cannot be altered or amended in exercise of legislative power, if the power of amendment is ..aid to be located in the Residuary Entry 97 in List I. The history of residuary power in the Government of India Act, 1935 whose scheme was adopted in the Constitution shows that the topic of amendment was not only present to the mind of the Constitutent Assembly but also that the Constituent power could not reside in the residuary power.\n\nI The conclu.ions on the question as to whether Article 13(2) overrides Articles 368 are these. Article 13(2) relates to laws under the Constitution. Laws under the Constitution arc governed by Article 13 (2). Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self cxo. cuting. Article 13(2) does not override Article 368. Article 13(2) is not a fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in Gola!{ Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and. an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn atiractcd the provisions of Article 13(2). Parliament took notice of the two conflicting\n\nKESAVANANDA ti, KEllALA (Ray, J.) 387\n\nview$ which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Saiian Singh case and the minority views of live learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament. Wanchoo, J~ rightly said in Golak Nath case that the power under Article 368 is a constituent power to change_ the fundamental law, that is to say, the Constitution and is distinct from ord.inary legislative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitution and what Parliament does under Article 368 is not ordinary law making which is subject to Article 13(2) or any other Article of the Constitution. This view of W anchOO, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliament has the constituent power to amend this Constitution.\n\nIn order to appreciate and assess Mr. Palkhivala's other contention of implied and inherent limitations on the amending power, it is necessary to find out the necessity and importance of die amending power to arrive at the true meaning of the expression \"amendment\".\n\nMr. Palkhivala made these submi.s.<ions. The word \"amendment\" mea;1s on the one hand not the power to alter or destroy the essential features and on the other there are inherent and implied limitations on the power of amendment. It is imperative to consider the consequences of the plea of limited power and also of the pica of limitless power.\n\nThe test of the true width of a power is not how probable it is that it may be exercised, but what can possibly be Jone under it. The hope and expectation that it will never be used is not relevant. Reliance is placed on the observations in Maxwell on the Interpretation of Statutes, 12th Ed. (1969) pp. 103-106 that it is important to consider the effect• or consequences which would result from it, for they often point out the real mean.ing of the words, before adopting any proposed construction of a passage susceptible of more than one meaning. The reasonablcncis of the consequences which follow from a particular construction on the one hand and the unreasonable result on the other are the two alternatives in the quest for the true intention of Parliament. Crawford Construction uf Statutes (1940 Ed.) pp. 286-290 was referred to for the proposition that where the statute is ambiguous or susceptible to more than one meaning, the construction which tends t'I make the statute unreasonable should be avoided. Uncertainty, friction or confusion on a construction is to be avoided becall,!C preference is to be given to the smooth working of the statute. The Court adopts which is jmt\n\nreasonable and sensible rather than that which is none of these things.\n\n388 SUPREM!. COURT REPORTS [1973] Supp. s.c.R.\n\nIt is not to be presumed that the legWarure intended the legislation to produce inequitable results. Usurpation of power contrary to the Constitution is to be avoided,\n\nReliance was placed by Mr. Palkbivala on American Jurisprudenc~ 2d. Vol 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions.\n\nFirst, questions of constitutional construction are in the main governed by thc same general principles which control in ascertaining the me'dning of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of a Constitution are of uncertain value and should be used with hesitation and circumspection.\n\nSecond, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays a very important part in constitutional construction.\n\nWhat is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the particular powers, duties and rights in question with all the light and aid&\n\nof the contemporary history. Fourth, proceedings of conventions and debates are of limited value as explaining doubtful phrases. Similarly, the opinions of the individual members are seldom considered as of material value.\n\nMr. Palkhivala said that the word \"amend\" may have three meanings. First, it may mean to improve or bettJcr to remove an error, the quality of improvement being considered from the stand point of the basic philosophy underlying the Constitution. Second, it may mean to\n\nmake changes which may not fall within the first meaning but which do not alter or destroy any of the basic essential or any of the essential fcarures of the Constition. Third, it may mean to make any changes in the Constitution including changes falling outside the second meaning. The first meaning was preferred: The second was said to be a possible construction. The third was ruled out.\n\nThe crux of the matter is the meaning of the word \"amendment\" The Oxford Dictionary meaning of the word is to make professed improvements in a measure before Parliament; formally, to alter in detail, though practically it may be to alter its principle, so as to thwart it.\n\nThe Oxford Dictionary meanings are also alteration of a bill before Parliament; a clause, paragraph, or words proposed to be substituted for others, or to be inserted in a bill (the 'result of the adoption of which may even be to dcfeam the measure). In Words and Phrases Permanent Edition, Volume 3 the meaning of the word \"amend\" and \"amendment\" arc change or alteration. Amendment involves an alteration or\n\nif\"\"• ,...,_\n\n' '\n\nKl!SAVANANDA V. Kl!llALA (Ray, J.) 389\n\nchange, as by addition, taking away or modification. A broad defirution of the word \"amendment\" ; vill include any alteration or change.\n\nThe word \"amendment\" when used in connection with the Constitution may refer to the addition of a provision on a new independent subject, complete in itself and wholly disconnected from other provisions, or to some pai:ticular article or clause, and is then used to indi- an addition to, the striking out, or some change in that particular article or clause.\n\nThe contention that the word \"amendment\" iq Article 368 should bear a limited meaning in view of the expressioo \"amend by way of addition, variation or repeal any of the provisions of this Schedule\" occurring i.n paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons.\n\nFirst, the power of amendment conferred by the four pravisions, namely, Article 4 read with Articles 2 and 3, Artie! ! 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limil:ed to specific subjects. The exercise of the power of amendment under those four\n\nprovisions, if treated by Articles themselves,. is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368.\n\nArticle 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part \"Amendment of the Constitution\" is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is not only a matter of procedure.\n\nSecond, these four provisions which are in the same terms, namcl y, \"no such law shall be deemed to be an amendment of this Constitution\n\nfor the purpose of Article 368\" show that but for these terms the ; amendment would have fallen within Article 368 and was being taken out of it. This is an important consideration particularly in connection with Schedules 5 and 6 which provide that Parliament may, from time to time by law, amend by way of addition, variation or repeal my of the provisions of this Schedule. These provisions show that an amendment by way of addition, variation or repeal will also fall within the amendment of the Constitution provided for in Article 368 but is being taken out of Article 368. This express exclusion contains intrinsic evidence that the meaning of the word \"amendment\" in Article 368 includes amendment by way of addition, alteration or repeal.\n\n390 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nThird, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may from time to time by law, amend by way of addition, variation or repeal indicate the necessity of amendments from time to time. The expression \"by way of\" does not enlarge the meaning of the word \"amendment\" but clarifies. The expression \"by way of\" shows that the words addition, variation or repeal are substitutes of the word \"amendment\" and are forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or by paragraph 21, because Article 244 provides for the administration of Scheduled Areas and tribal areas on the applica, tion of the two respective Schedules. The words \"from time to time\" also indicate that because of subject matter amendments may be from time to time. The history behind the two Schedules originates in section 91 and 92 of the Government of India Act. 1935 dealing with excluded areas and partially excluded areas.\n\nFourth, reference was made to section 9(1)(c) of the India Jn. dependence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the Government of India Act, 1935. The Government of India Third Amendment Act 1949 amended section 291 of the 1935 Act and empowered the Governor General to make such amendments as he con- $iders necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did not use the cxpressicm \"by way of addition, modification or repeal\" the word \"amendment\" in Article 368 will have a narrower meaning. The expression \"amendment\" has been used in several Articles of the Constitution.\n\nThcie are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2),\n\n274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or rqpeal. Again, different expression have been used .in other Articles. In Article 35(b) the words ate alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Article 372(1) the words are altered or repealed or amended. In Article m\n\n(2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modifica6on, addition or commission. Again, in Article 241(2) the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370(l)(d) and (3) the words arc modifications and exceptions. Again, in Schedule 5 para.. graph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(l)(a) the words used are exceptions or modifications. Modifications in Article 370(1)>\n\n(d) must be given.the widest meaning in the context of a Constitution\n\nK.ESAVANANDA V. K.ERALA (Ray, J.) 391\n\nand in that sense it includes an amendment and it cannot be limited to such modifications as do not make any radical transformation.\n\nThe several Constitution Amendment Acts show that amendments to the Constitution arc made by way of addition, substitution, repeal.\n\nThe Attorney General is right in his submission that the expression \"amendment of this Constitution\" has a clear substantive meaning in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition of repeal. ·\n\nThe words \"Amendment of this Constitution may be initiated\" and the words \"Constitution shall stand amended in accordance with the terms of the Bill\" in Article 368 indicate that the word \"amendment\" is used in an unambiguous and clear manner. The Attorney General said that our Constitution is not the first nor is the last one to\n\nu:>'!! the word \"amendment\". The American Constitution in 1787 used. the word \"amend\". Several Constitutions of other countries have used the word \"amend\". The word \"amend\" is used in a Constitution to mean any kind of change. In some Constitutions the words alteration or revision have been used in place of the word amend or along with the word amendment. Some times alteration and revision of the Constitution arc also spoken of as amendment of the Constitution.\n\nConstitutional provisions are presumed to have been carefully and deliberately framed. The words alterations or amendments, the words amendments or revisions, the words revision and alteration arc used together to indicate that these words have the same meaning in relation to amendment and change in Constitution.\n\nThe qieaning and scope of amending power is in the object and necessity for amendment in a written. Constitution. •.\n\nThe various amendments which have already been carried out to our Constitution indicate that provisions have been added, or varied or substituted. The Attorney General gave two correct reasons for ' the object and necessity of the power of amendment in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise\n\nthere will be no necessity to give that importance to the high amending power to avoid revolution.\n\n392 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.\n\n1he object of amendment is to see that the Constitution is prescrv ed. Rebellion or revolution is an illegal channel of giving expression to change. The \"con.sent of the governed\" is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for corresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared that the National Assembly shall never entertain a proposal for abolition of the republican form of Government. The United States Constituti!)ll provided that no amendment could be made prior to 1808 affecting the First and Fourth Clauses of\n\nsection 9 of Article 1 relative to .the prohibition of the importation of slaves, and that no State without its consent shall be deprived of equal suffrage in the Senate. These are examples of limiting the sovereign power of the people to change the Constitution.\n\nAn unarnendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has a right to determine a law under which it Lives. The eartlh belongs in usufruct to the living; the dead have neither powers nor.rights over it. The machinery of amendment -is like a safety valve. Ir should nor be used with tbo great faciliry nor should be too difficult. That will explode and erode the Constitution.\n\nMost Constitutions are rigid in .the sense that they are amendable only by a different process than t!hat by which ordinary laws may be 'lltered. Thus they distinguish cl.early between the constituent power :and the legislative power, each being exercble by different organs according to different processes. Chief Justice Marshall said that the -0pponents of change want changes just as much as any one else. They want however to determine what the 'changes shall be.\n\nAmendment is a form of growth of the Constitution inasmuch_ as amendment means fundamental changes. The Constitution devises special organs or special methods to amend or change the fundamental principles thar cre,,.te the Government. The methods of amendment may be by ordfuary law making body as in Great Britain or by the ordinary law making body with special procedure or. unusual majority or loy special organs of government created for the purpose such as constitutional convention or by the electorate in the form af referendum or cof initiating a referendum. In case a written Constitution makes no provision for amendment it is usuallyheld that the national law making body by ordinary procedure may amend the Constitution. If a Constitution provides the method of amendment that method alone is legal. Any other method of amendment would be a revolution. The\n\nKESAVANANDA ti. KJ!RALA (Ray, J.) 393.\n\ndeliberative and restrictive processes and procedure ensure a change in the Constitution in an orderly fashion in order ro give the expression to social necessity and to give permanence to the Constitution.\n\nThe people expressed in the Preamble to our Constitution gave the Constitution including the power o amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people.\n\nThe method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example convening Constituent Assembly -or Referendum will be extra constitutional or revolutionary. In our Constitution Article 368 restricts only rhe procedure or the manner and form required for amendment J:me not the kind or the character of the amendment that may be made. There are no implied limitations to the amending powet_ The Attorney General summed up pithily that tho Constitution Acts not only for the people but on the people.\n\nThe Attorney General relied on several American decisions in support of these propositions. First, the word \"amendment\" does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was not accepted in Edwards v Lesseur South Western Reporter Vol. 33, p. 1130.\n\nSecond, ratification by people of States would be void when a federal amendment proposed by Congress is required to be ratified by the legislatures of the States. Ex-pa.rte Dillon Federal Reporter No. 262 p. 563.\n\nThe legi<lature is a mere agency for ratification of a praposed amendment. Ex-parte Dillon did not accept the view of the learned single\n\nJudges in Livermore v Waite that amendment means only improvement. Third, the argument that the word \"amendment\" carries its own Jimitatioll5 regarding fundamental principles or power of State or control of the conduct of the individuals by devising a method .of referendum by State legislatures is adding a new method of amendment. This is not permissible. Feigenspan v Bodine 264 Federal Reporter 186. The only method of amendment is that prescribed by the Constitution. The theory of referendum by State legislatures is not valid. Fourth, the assumption that ratification by State legislatures will voice the will of the people is against the prescribed method of amendment and grant of a, uthority by the people to Congress in the manner laid down in Article V of the American Constitution. It is not the function of Courts or legislative bodies to alter the method which the Constitu.tion has fixed. Ratification is not an act of legislation. fo derives its authe>- rity from the Constitution. Hawke v Smith 253 U.S. 221; Dillon Y\n\nGloss 256 U.S. 358, Leser v Garnett 258 U.S. 130. Fiftli, the powet of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity .,[ . a convention expressing the irupreme will or the sovereign poople and.\n\n394 SUPREME COURT REroRTS [ 1973] Supp. s.c.R.\n\nis unlimited in its power save by the Constitution. Ex-parte Mrs. D. C.\n\nKerby American Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that amendments which touch rights of the people must be by convention is rejected by Supreme Court in American Article V of the American Constitution is clear in statement and meaning and contains no ambiguity. Where the intention i.'l clear there is no room for construction. Rhode Island v Palmer 253 U.S. 350; U.S. v Sprag11e 282 U.S. 716. Seventh, principles of the Constitution can be changed under Article V Schneiderman v United States of America 320 U.S. \"\n\n118. Eight, the Constitution provides the method of alteration. While the procedure for amending the Constitution is restricted here is no restraint on the kind of amendment that may be made. W hiteh11ll v Elkins 389 U.S. 54.\n\nExcept for special methods of amendment in a rigid or controlled Cowtimtion although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms.\n\nThe flexible Constirution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution .are called constitutional because they refer to subjects supposed to affect\n\nthe fundamenal inst.1'tutions of the State, and not because they are legally more sacred or difficult to change than other laws.\n\nA rigid Constitution is one under which certain laws gencrally known as cowtitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting iii its ordinary capacity to modify or repeal definite laws termed constitu- J:ional or fundan1ental. In a rigid Constitution the term \"Constitution\"\n\nmeans a particular enactment belongi]Jg to the Articles of the Constitution which cannot be legally changed with the same ease and in the same manner as ordinary laws.\n\nThe special machinery for constitutional. amendment is the limitation of the power of the legislature by greater law than by the !aw of the ordinary legislation. The Constituent Assembly knowing that it will disperse and leave the actual business of legislation to another bodv, attempts to bring into the Constitution that it proulgates as many guides to future action as possible. It attempts to arrange for the \"recreation of a constituent assembly\" whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. There may be some elements of the Constitution which the constituent assembly wants\n\nKESAVANANDA ti. KERALA (Ray, J.) 395\n\nto remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that no State without its own consent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly said that just as there are no implied limitation in flexible Constitutions similarly there are no implied limitations in a rigid Constitunion. The difference is only in the method of amendment. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special convention.\n\nIn a rigid Constitution the legislatures by reason of their well matured long end deliberate!iy formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amendment of the organic law by the will of the minority. In ase where the requisite majority is not obtained by the minority thwarting an amend- )nent, there is just as much danger to the State from ; evolution and violence as there is from what is said to be the caprice of the majority.\n\nThe safeguards against radical changcy thus represent a better way alld a natural way of securing deliberation, maturity and clear consciousness of purpose without antagonising the actual source of power in the democratic state.\n\nThe term \"amendment\" connotes a definite and formal process of constitutional change. The force of tradition and custom and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution.\n\nThe background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment.\n\nOn 12 November, 1946 Sir B. N. Rau Constitutional Adviser prepared a brochure containing Coruititution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what .constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental. rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution.\n\nOn 17 March, 1947 a questionnaire was circulated under the subject as to what provisions should be made regarding the amendment of ..he Constitution. The draft clause of amendment to the Constitution\n\n396 SUPREME COURT REPORTS [1973] Supp. S.C.R.\n\nprepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by a majority of not less than two thirds of the total number of members of that House and is ratified by the legislatures of not less than two thirds of the units of the Union, excluding the Chief Commissioners' Provinces, it sha11 be presented to the President for his assent; and upon such assent being given the amendment shall come into operation. There were two explanations to that clause.\n\nOn 29 April, 1947 Shri Santhanam' s amendment to the draft clause was accepted. The amendment was \"that this clause also if necessary may be amended in the same way as any other clause in the Constitution\". In June, 1947 the drafting of the amending cla= started.\n\nOriginally it was numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amendment clause was given by Sir B. N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladt Krishnaswami Ayyar and Sir Gopalswamt Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On .21 February, 1948 the draft Constitution w311 ready. Draft Articles 304 and 305 related to amendment. Article 305 provided for reservation of seats.for minorities for ten years unless continued in operation by an amendment of the Constitution.\n\nThe following features emerge. First, the Constituent Assembly made no distinction between essential and non, essential features.\n\nSecondly, no one in the Constituent Assembly said that fundamental\n\nrigh1\"1 could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change or amendment of fundamental rights. At no stage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic i~ should be flexible and for a period it should be possibae to make necessary changes with relative facility.\n\nCertain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was 1X> be passed in two Houses by a clear majority of the total membership of each House.\n\nAnother proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the plll'pOl'ilC of carrying out the Constitution in\n\nKESAVANANDA V. KERALA (Ray, J.) 397\n\npublic interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to propertv or otherwise, shall be permissible and any amendment which is or is Ekely to have such an effect sholl be wid and ultra\n\nvires of any legislature. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665.\n\nIn the first category the framers devised amendment by Parliament by .a simple majority. These are Articles 2 and 4 which deal with States.\n\nAs far as creation or re-constitution of States is concerned, it is left to Parliament to achieve that by a simple majority. Again, draft Article 148A which eventually became Article 169 dealing with Upper\n\nChambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that connection that the statement of Dr. Ambedkar \"If the future Parliament wishes to amend any particular Article which is not mentioned in Part Ill or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it\" was i11\\'0ked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally _ misreading the speech. The speech shows that some Articles wou1d be amendable by bare majority, others would require two thirds majority and the third category would require two thirds majority plus ratification by the States.\n\nProceedings in the Constituent Assembly 'how that the whole Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirdsmajority or two thirds majority and ratification by the States. Thesediiferent procedures were laid down to avoid rigidity:\n\nThe Constitution First Amendment Act which added Article 15 (4), substituted words in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and econdly that the Government was trying to take more power to itself. The answers are that a Constitution which is responsive to the people's will and their ideas and which can be varied here and there, will command respect and people will not fight against change. Otherwise, if people feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing.\n\n26-36 S. G. lndia/73\n\n398 SUPREME COURT REPORTS [J973] Supp. s.c.R.\n\nIn. this background there is no doubt about the meaning and scope of Article 368. The Attorney GeneraL rightly said that if there be any doubt contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. In Mopherson v. Blacker 146 U.S. 1 = 36 L.Ed. 869 it is said that where plain and dear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Raiasthan) Ltd. v. The State of Raiasthan tr Or,.\n\n(1%3) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and constitutional problems of other countries.\n\nMr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to the widest possible amplitude of powers must be adopted. A strict construction applicable tP penal or taxing Statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the a!Iocated specific power. If there are no limitations on the wwer it is the whole power. Grant of power df amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted.\n\nThe contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word \"amendment\" would preclude the power to alter or destroy the essential features and the basic element); and the fundamental principles of the Constitution. This contenvion was amplified as follows. The Ooostitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is a creature of the Constitution. Article 368 does not start with the non-obstante clause. Article 368 uses the word \"amendment\" simpliciter. Less significant amendment powers in others parts of the Constitution use the words \"add, alter, repeal or vary\" in addition to the word \"amendment\", as will appear in Articles 31B, 25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does not extend the amending power to \"all or any of nhe provisions of this Constitution\". On a wide construction of the word \"amendment\" all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the concurrence of at least half the States under the proviso to that Article.\n\nKESAVANANDA V. KEllAl.A (Ray, J.) 399\n\nThe basic human freedom are all of the most fundamental importance to all the States and all the citizens. Arlicle 32 is no less important to the citizens of States than Article 226. The Preamble is not a part or provision of the Constitution. Therefore, the Preamble cannot be a)llended under Article 368. The nature and the contents of the Preamble are such that it is incapable of being amended. If the Preamble is unalterble it necessarily follows that those features of the Constitution which are necessary to give effect 110 the Preamble are unalterable. Fundamental rights are intended tlO give effect to the Preamble. They cannot, therefore, be abridged or taken away.\n\nThe provisions of Artide 368 themselves can be amended under that very Article. If the word \"amendment\" is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any constitutional amendments possible by bare majority, Parliament <:an provide that hereafter the COnstitution shall be unamendable. Parliament can reduce India to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence.\n\nMr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems frc-m\n\nthree basic features.\n\nFirst, the ultimate legal sovereignty resides m the people. Second, Parliament is only a creature of the Constitution.\n\nThird, power to amend the Constitution m destroy the essential features of the Constitution is an application of ultimate legal sovereignty.\n\nMr. Palkhivala enumerated 1:1 essential features. These were as follows : (I) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life.\n\n(5) The republican form of Government. (6) The guarantee of basic human right:s elaborated in Part III of the Constitution.\n\n(7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States.\n\n(10) The balance between the legislature. the executive and the judiciary. (11) a Parliamentary form of Government as distmct from the presidential form of Government. ( 12) Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make tlhe Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, confer the power of amendment either expres- . sly or in effect on the State Legislatures , and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad area1.\n\n4(J( SUPREME COURT REPORTS [19731 Supp. S.C.R.\n\nT'ie GJnstitution 24th A .nendment Act was impeached by Mr.\n\nPalkhivala un three grounds. First by substituting the words ·•amenJ by way of addition, variaticn 01 repeal\" in place of the word \"amendment\" in Article 368 the power was widened. Second, the 24th Amendment made explicit that when Parliament makes a constitutional amendment under Article 368 it acts in exercise of constituent power.\n\nT!urd, it had provided by amendment in Articles 13 and 368 that the power in Article 13(2) agamst abridging or taking away af the fundamental rights shall not apply to any amendment u:ider A acle 36S.\n\nThe Constitution 24th Amendment Act is, therefore, to ]e construed as empowering Parliament to exercise full constituent power of the peoole and to vest in Parliament the ult\\imate legal sovereignty of the people as authorising Parliament tci alter or destroy all or any of the essential features, basic elements and fundamental principles of the Ooinstitution. Likewise, Parliament is construed by the Constitution 24th Amendment Act to be authorised to damage or , stroy the essence of all or any of the fundamental rights. Therefore, the amendment must be illegal and invalid.\n\nIn the alternative it was submitted on behalf of the petitioner that if the Constitution 24th Amendme11t is valid it cap. be only on a reading down of the amended provisions of Article 13 and 368 which reading would preserve the angina! inherent and implied limitations.\n\nEven after the Constitution 24th Amend\"ment Act Parliament will have no power to alter or destroy the essential features of the Constitution and secondly, fundamental rights are among the essential features of the O>nstitution and, therefore, the e ; sence of any of the fun, damental rights cannot be altered or destroyed or damaged even when they are sought to be abridged.\n\nThe Attorney General stressed the background in which Article 368 was enacted by the Constituent Assembly to show tliat any li\"mitation on the amending powei was never in cont:roversy. The only controversy was regarding the degree of flexibility of an amendmem of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Gert, in provisions of the Constitution may be amended by a simple majority in Parliament.\n\nOthers may b~ amended by tw0-thirds majority. The third category relates to provisions where amendments must be ratified by o'lc half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder c:/ the Constitutio'l easy to amend. Of the three ways of amending the Constitution tWC> are laid down m Article 368 itself and the third is provided for in about 24 other Articles.\n\nThe Constitutional Adviser incorporated in his draft Constitution prcnared by lum in October, 1947 a recommendation contained in the suppleme'ltary Report of •he Union Gonstitutien Committee.\n\nI I I\n\nKESAVANANDA V. KERALA (Ray, J.) 401\n\nFollowing the recommendauon of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, nhe Scheduled Castes, the Scheduled Tribes, the rndian Christians and the Sikhs, either in the Federal Parliament <Yr in any Provincial Legislatu, e, should not be amended before the expiry of ten years from the commencement of the Constitution.\n\nThe Drafong Committee in Februory, 1948 considered the provi s1ons for amendme.ot. It made three n 4terial changes in the provisions made by the Constitution Adviser. First, the Committee framed a self contained and independent Art1clr regarding the reser.vation of seats in the legislatures fo.r minorities. These provisions could not be amended for a period of ten years an<l would then cease to have effect unless continued in operation by an amendment of the Constitution.\n\nThe sec,, nd proposed change gave a limited power of initiating constitutional amendments ro the State legislatures. This power related to two matters. Thece were the methods ol choosing Governors and the establishment or abolition of Legislative Councils in the States. The third amendment suggested was that chonges in any of the legislative lists (not merely federal List) should receive ratification of at least <me half of the Provincial leislatures and one third of the legislatures of Indian States.\n\nThe entire history of the power of amendment of 1he Constitution shows first that the Draft Constitution eliminates the elaborate and difficult procedures such as a decision by convention °or a reterendum. The powers of amendments are left with the legislatures of the Union and the States.\n\nSecondly, it is only for amendments of specific matters that the ratification by the State legislatures is required.\n\nAll other Articles are left to be amended by Parliament with only limitation of majority of not less than a two-thirds of the members of each House prsent and voting and the majority of the total membership of each Bouse. Thirdly, the provisions for amendment of the Constitution were made simple and not difficult when comparison is made with the American and the Australian Constitutions.\n\nThe theory of inherent and implied limitations on the amending power is ba<ed on the assumption of a narrow and restricted meaning of the word amenciment to suggest that the basic features or the essential features and the democratic republican character of the Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of the Constitution to suggest that inherent and implied limitations all spring from the Preamble. The .Preamble is said not\n\n402 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.\n\nto be a part of the Constitution. The Preamble is said to be unalterable.\n\nTherefore, it is contended that other provisions which gave effect to the Preamble cannot be amended.\n\nReliance is pllleed on the decision of this Court in Berubari case\n\n(1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not a part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any , ubstantive power, because such powers arc expressly granted in the body of the Constitution. This Court said \"what is true about the powers is equally true about prohibitions and limitations\". In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of clie Government the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amendment. The Preamble was invoked to cut down the power to cede territory either by ordinary law or by amendment of the Constitution. This Court said that the Preamble is, in the words of Story \"a key to open the minds of the makers, but nevertheless the Preamble could not be said to postulate a limitation on one of the very important attributes of sovereignty\". This Court rejected the theory that the Preamble can impose serious limitations on the essential attribute of sovereignty. The suggested limitation that the Preamble affirmed the inviolability of the territory of India so that the power of amendment should be implied limited to exclude the ceding territory, is negatived by this decision.\n\nThe petitioner's contention that the Preamble is not a part of the Constitution is nullified by the petitioner's reference ta and reliance on the Preamble as the source of all inherent limitations. The Berubari case held that Article I could be amended under Article 368 and a part of the territory of India could be ceded by such amendment. The Preamble did not limit the power to cede territory by amendment of Article I.\n\nIn the Berubari case there is an observation that the Preamble is not a part of the Constitution. The Preamble was taken up by the Constituent Assembly at the end as it had to be in conformity with the Constitution. The Preamble was debated and voted upon and the motion \"The Preamble stand part of the Constitution\" was adopted. Therefore, Mr. Seervai rightly contended that the Preamble is an integral part of the status. The Preamble can be repealed (See Craics on Statute 6th Ed. page 200 seq. and Halsbury Laws of England, 3rd Ed. Vol 36 p. 370).\n\nKESA<VA'NANDA V. KERALA (Ray, J.) 403\n\nIn Gopalan case (1950) S.C.R. 88 an argument was advanced on the Preamble that the people gave themselves guaranteeing to the citizens fundamental righ11S, and, therefore, the provisions of Part III must be construed as beirig paramount to the legislative will as otherwise the fundamental rights to life and personal liberty would have no protection against legislative action. Patanjali Sastri, J., said that th¢ high purpose and spirit of the Preamble as well as the constitutional significance of a declaration of Fundamental Rights should be borne in mind. The language of the provisions, in was said there, could not be stretched in disregard of the cardinal rule of interpretation of any enactment, constitution or other, that its spirit no less than its intendment should be collected primarily from the natural meaning of the words wed. The words \"procedure established by law\" in Article 21 must be taken to refer to a procedure which had a statutory origin. The word \"law\" was said not to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was \"no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice\". This Court in Gopalan case refused to read due process as an implication of the Constitution.\n\nJn the K<ra/a Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said \"to implement and fortify the $Upreme purpose set forth in the Preamble, Part Ill of our Constitution has provided for us certain fundamental rights\". In the same case, Das, C.J. said \"so long as the Constitution stands as it is and is not altered, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority community who are of our own\". This observation shows that fundamental rights can be amended and the Preamble does not stand in the way.\n\nIn Basheshar N<Jth v. The CJ.T. Delhi (1955) Supp. 1 S.C.R. 528 Bhagwati, J. referred to the Preamble i:n discussing the question -Of waiver of fundamcrual right and compared our Preamble to the Preamble ta the United, Sta'P.· Constitution;. The. Prcamhle to the. erican Constitution is without the Bill of Righu and the Bill of Blghts which bec pan of the United States Constitution substan tially altered .its ehara£r and. broadly speaking, diJfered. in no way, in principle, from our fundamental right&.\n\nThe Prcamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words arc clear and unambii!JOUS, there is little room for interpretation, except the cases leading to an obvious absurdity, or IX> a direct overthrow of\n\n404 SUPREMJ! COURT REPORTS [1973] Supp. s.c.R.\n\nthe intention expressed in the Preamble. Tills is the view of Story.\n\nThe Pr=ble can never be resorted to eplarge the powers confided to the general government. The Preanible can expound the nature, extent and application of the powers actually conferred by the Conti tution and not substantively create them.\n\nThe decision of this Court in Gopalan case, the Coal Bearing t1.reas Act case (1962) 1 S.C.R. 44, and S/Jate of Rajasthan v. Leela Jain\n\n(1965) 1 S.C.R. 276 are that if the language of the enactment•is clear the Preamble cannot nullify or cut down the enactment. The Judicial Committee in The Secretary of State for India in Council v. Maharajah of Bobbili I.L.R.. 43 Mad. 529 8aid that the legislature may well intend that the enacting part should extend beyond the apparent ambit of the Preamble or the immediate mischief. See also Attorney General v. Prince ErneJt Augustus of Haneyar 1957 A.C. 436. The American decision in Henning /acobsan v. Commonwealth of Massachusetts 197 U.S. 11 indicates that power is not conferred by the Preamble but must be found in the Constitution.\n\nThe Preamble may be relevant in the case of an ambil!'lity in an enactment in a statute. A statute does not contain an amending power for the .simple reason that the statute can be amended under legislative power. The Attorney General tightly said that the Prear:ible in a Constitution refers to the frame of the Constitution at the time of the Preamble, and, therefore, it can possibly have no relevance to the constituent power in llhe future, when that Constitution itself can be changed. The position. would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of section 128 of the Australian Constitution.\n\nCanaway in the Failure of Federalism in Australia in discussing section 128 of the Australian Constitution under the heading \"Alteration of the Constitution\" expresses. the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section pi no way de-, tracts from the amplitude of that power.\n\nCanaway further says that it is not permissible ro refer to the Preamble in connection with the effect of section 128 and if nevertheless such reference is made there is nothing adverse to the collclusion that there is full power of amendment. The Preamble recires a preliminary agreement to unite in one indissoluble Federal Commonwealth. Section 128 of the Australian Constitution forms an integral part o£ the Constitution •.\n\nKEOAVANANDA V. KERALA (Ray, J.) 405\n\nAs from the time o! the agreement it mt have been contemplated that the Constitution should be alterable to the full extent of power conferred by that section. Therefore, the word \"alter\" in section 128 of the Arntralian Constitution is not restricted by any reference to the\n\nPreamble.\n\nWynes in Legislative, Executive and Judicial Powers in Australia 4th Ed. at pp. 505-506 expresses the view that apart from the rnle which excludes the Preamble generally from consideration in statutory interpretation it is clear that, when all is said and done, the Preamble at the most is only a recital of a present intention. The insertion of an express reference to an amendment in the Constitution itself is said tJo operate as a qualification upon the mere recital of the reasons for its creation.\n\nAt the second reading of the Draft Constitution in the Constituent Assembly a res0lution was adopted that the Preamble do form part of our Constitution. The Preamble is a part of the Constitution. On 26 November, 1949 certain Articles of the Constitution were brought into force.\n\nArticle 393 did come into force on 26 November, 1949.\n\nTherefore, the Preamble did oot come into force on 26 November, 1949.\n\nAs regards general laws the position is that the Preamble has been treated as part of the statute.\n\nClear constitutional provisions are imperative both on the legislatures a11d the Courts. Where a constitutional provision is comprehensive in scope and leaves no oom for interpretation the Court i! without power to amend, add to or detract from a constitutional provision or to create exceptions thereof by implication (See Corpus Juris Secumdum Vol. 16 p. 65). Where rhe people express themselves in carecul od measured terms in framing the Constitution and they leave as little as possible to implications, amendments or cli.anges in the existing order or conditions cannot be left to insert; ng implications by reference to the Preamble which is an expression of the intention at the time of the framing •Of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.\n\nThe contention that essential features are not amendable under Article 368 as it stood before the Constitution 24th Amendment Act is not only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutarv principles of construction of a statute is to be found in R . .V B''.\"a(' 3 A. C. 889. It was a case to determine whether the prescnbed hm1tations of a colonial legislature had been exceeded.\n\nT.he Judicial Committee said that a duty must be performed by looking to the\n\n406 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nterms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. \"If what has been done is legislation within the geheral scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it i.• not for, any aoort of justice to enquire further or to tnlarge constructively those conditions and restrictions\". The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The clieory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment.\n\nL'Oi'd Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power to make laws it was difficult to see how the power was taken away. The power is alvyays sufficient for the pW'- pose. Lord Dunedin in Whiteman v. Sadler 1910 A.c; 514 said \"express enactment shuts the door to further implication\".\n\nIt was said that the essential features could be amended by way of improvement but could not be damaged or destroyed. It was said India could not be converted into a totalitarian dictatorship. The entire approach of the petitioner to the power of amendment contained in Article 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people, India is a sovereign democratic republic which means that Parliament and State legislatures are elected on adult u~ versa! suffrage, The country is governed by the Cabinet sym of government with ministries responsible to the House of the People and ro the Legislative Assemblies respectively. In a democracy the determination of policies to be pursued can only be determined by a majority vote cast at election and then by a majority o£ the elected representatives in the legislature, Holmes, J., said \"In a acy the people have the right to embody their opinion iD law\".\n\nThe argument that if unbridled power were conferred the.. Coi:wii tution could be subverted or destroyed is not supported by actual ex perience in India Mr. Scervai cmpha.siscd that sim; c 1951 when Shankari Prasad cas¢ rcoognised. 11nlimited power of amendmcDt till Golak Nath case in 1967 die normal dcmocr~ proceu ci W: departments of the State functioned as provided. by the Constiucion. Elec tions have been held as provided by the Constitution. Ii allJ' .bad¥ or organised party were bent upon subverting our free Canst:i&til'.'n, then even if there were no power af amendmel!l.t, Parliament has powers which would enable such Jestruction to be brought about Great and wide powers are conferred for the governance of great\n\nKESAVANANDA V, KERALA (Ray, J.) 407\n\nsovereign countries and such powers cannot be withheld on the ground that they may be used externally or oppressively. Well settled principles of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social concepts independently of the language of the Qi.nstitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh & Others\n\n(1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v.\n\nBurah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negative ly restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v.\" Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : \"If the text is explicit the text is conclusive, alike in what it directs and what it forbids\". This is the golden rule of construction of a written Constitution.\n\nIn Gopalan case 1950 S.C.R. 88 this Court was invited to read inlD the Constitution implications derived from the \"spirit of the Constitution\". Kania, C.J. said that to strike down the law on an assumed principle of construction would be \"llO place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights\".\n\nKania, C.J. also said that a large and liberal inrpretation should be given to the Constitution. That does not mean that a Court is free to stret<:h or pervert the language of the Constitution in the interest of any legal or constitutional theory. This Court in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228 rejected the contention that the spirit of the Constitution should be invoked in interpreting die Constitution. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council reversed the judgment of the Federal Court observing that questions of jurisprudence or policy were not relevant to the construction of power conferred in an affirmative language and not restricted in any negative terms.\n\nA constitution is essentially a frame of government laying down governmental powers exercisable by the legislature, executive and the judiciary. Even so other provisions are included in the Constitution of a country which provisions are considered by the framers of that Constitution to have such special importance that those \"1ould be included in the Constitution or 'organic law. Thus all provisions of the Constitution are essential and no distinction can be made between essential and non-essential features from the point of view of amendment unless the makers of the Constitution make it expressly clear in the. Constitution itself. The Attome)! General rightly said that if the positive power of \"amendment of this Constitution\" in\n\n408 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.\n\nArticle 368 is restricted by raising the walls of essential features or core of essential features, the clear intention of the Constituent Assembly will be nullified and that \"•ould make a mockery of the Constitution and that would lead to destruction of the Constitution by paving the way for extra constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa constrictor to the clear and unambiguous power of amendment.\n\nIf the\": is no express prohibition against amendment in Article 368 the ommission of any such restriction did not intend to impose any restriction.\n\nWhen certain restrictions are imposed it is not intended that other undefined restrictions shou'ld be imposed by implication. The general rule is not to import into statutes words which are not found there. Words are not to be added by implication into the language of a statute unless it is necessary 'to do so to give the paragraph sense and meaning in its context. If a matter is altogether omitted from statute it is not allowable to insert it by implication. Where the language d an Act is clear and explicit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is no ground for reading any words or changing any words according o what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in terms some detail which is of great importance to the proper performance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers :the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate Qbject.\n\nThe implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 IX> destroy the positive power to amend. The provisions of our Constitution in the light of historical background and special problems of the country will show that no provision can be considered as non-essential. The Constitution-makers did oot think so. The Attorney General rightly contended that no one has the power or authority to say that anv single provision is more essential than another or that the amending power under Article 368 does not operate on any prnvision on the ground of alleaed essentialitv when Article 368 provides amendment of this\n\nCotitution which obviously means the whole Constitution including everv provision.\n\nIn a Con; titution different methods of amendment may be laid down depending upon the degree of importance attached to particular parts of the Constitution. Apart from the language of\n\nKESAVANANDA ti. KERALA (Ray, J.) 409\n\nArticle 368 the draft Constitution as it emerged through the Constitutuent Assembly shows that no provision of the Constitution was excepted from the amending power.\n\nThe provisions for the purpose of amendment were divided into four categories. The first two categories are to be found in Article 368.\n\nCertain provisions require ratification by the requisite number of States as are mentioned in the proviso.\n\nOther provisions which do not fall within the proviso are amendable by a double majority provided there. The third category consists of Articles 4, 169, 240(1), paragraph 7 Schedule 5, and paragraph 21 Schedule 6. The fourth\n\ncategory consists of provisions which were said by the Attorney General to confer enabling power on Parliament to change the provisions by by the expression \"unless Parliament otherwise provides\" or similar expression. He gave the examples which are Articles 73(2), 100(3),\n\n105(3), 118(2), 120(2), 125, 133(3), 171(2), 189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345, 348(1).\n\nThe character of the provisions which are amendable under the proviso to Article 368 itself shows that petitioner's submission that essential features are unamendable is a baseless vision. Article 54 speaks of the method of election of the President. This may be changed. The manner or scale of representation of the different States in regard to the election pf the President may also be changed. The executive power of the\n\nUruon and the Statx:s may be .changed. Chapter IV of Part V (the Union Judiciary), Chapter V of Part VI (the High Courts in the States) are also mentioned in Article 368 as liable to be changed.\n\nArticle 141 may also be changed. Chapter I of Part XI and the Seventh Schedule (legislative relations between Union and the States) may be changed. The representation of the States in Parliament ( Articles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. Thi: method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the mlost important part of the Constitution may be changed.\n\nTo find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction.\n\nBoth aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are ? On\n\n410 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.\n\nwhat touchstxme are the essential features to be measured?\n\nIs then: an1 yardstick by which it can be gauged? How much is essential and how much is not essential? How can the essential features or th•: core of the essential features be determined? If there are no indications in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and indeterminate task. There must be an objective data and standard by which it can be preclicaQed as to what is essential and what is not essential.\n\nIf Parliament cannot judge these features Parliament cannot. amend the Constitution. If, on the other hand, amendments are canied out by Parliament the petitioner contends that eventually court will find out as to whether the amendment violates or abridge> essential features or the <Pre of essential features. In the ultimaite analysis it is the Court which will pronounce on the amendment as to whether it is permissible or not. This construction will have the effect of robbing Parliament of the power of amendment and reposing the final power of expressing validity of amendment in the courts.\n\nMr. Palkhivala said that though the essential features could be amended the core of essential features could not be amended. He said that there was no esoteric test to find out what is essential and what is not essential and if no precise definition could be given that was no reason ro hold that the essential features and the core of essential features could be amended. It was said that the appreciation of the trained judicial mind is the only way to find out what essential features are.\n\nMr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citi:zen whose rights are affected applies reason and when he assails a '.aw he possesses a standard by which he can persuade the Court that the law is unreasonable.\n\nThe legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the iaw of\n\nKESAVANANDA V. KERALA (Ray, ).) 411\n\nproperty reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered.\n\nThe American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights <\\fe couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as f.ox example in Articles 19 and 21. In Article 21 the Constitution-makers substituted \"procedure established by law\" for the words \"due process of law\". The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefinite reasonableness of Jaws on political, social and economic grounds.\n\nIn Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination.\n\nDue process as a test of invalidity of law was deliberately withheld or denied. Courts are not concerned with the wisdom or piolicy of legislation. The Court:s are equally not concerned with the wisdom and policy of amendments to the Constitu!ion.\n\nReliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extracting those observations it was said by Mr. Palkhivala that though the border-line between essential features and non-essential features could not be stated or it was not possible ro specify exhautively the amendment which could be invalid on that principle yet there was no reason why the principle of inherent and implied limitations to amend our Constitution should not be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does not contain any express prohibition against amending any provision.\n\nWhen Article 368 speaks of change, g in the provisions of the Constitution as arc set out in clauses (a) to ( d) of the proviso it is manifest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as\n\n412 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.\n\nfederal features, and from that point of view \"Essential features\"\n\ncould be amended.\n\nIn the face 1of these express prov1s1ons it is impossible to hold that the Constitution does not -(:ontemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential.\n\nIndeed it is. difficult to imagine that the Constitution contained any provision which was inessential. h need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and additlon of a new part.\n\nIt was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Consl'itution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the iategrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitutibn is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in a democracy and it is not the function of the Courts to make any such determination.\n\nMr. Palkhivala contends that the Const''Ption 24th Amendment Act is unconstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note \"Power of Parliament to amend the Constitution and procedure therefor\" for the original note \"procedure for amendment of the Constitution\". This change is due to the fact that according to the leading majority judgment in Golak N a:th case the unamended Artide dealt only with the procedure for amendment and that the power of amendment was in the residuary power of b:islation. The 24th Amendment has declared tllat the power to amend the Constitution is in Article 368. That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case.\n\nBy amendment that view has become the constitutional mandate.\n\nThe other change as a result of the 24th Amendment is . that \"Parliament may in the exercise of its constituent power amcO<l\" in place of words \"amendment of this Constitution may be initiated\".\n\nThe reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in considering the validity of\n\nKESAVANANDA ti. KERALA (Ray, J.) 413\n\nthe First Amendment recognised and affirmed the vital 'distinction between constituent power and legislative power and decided that the word \"law\" in Article 13(2) applied to the exercise of legislative power and did not apply to an amendmen~ of the Constitution.\n\nIn Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that Article 13(2) applied to an amendment of the Constitution under Article 368 because there was no distinction between legislative and constituent power. As a consequence the leading majority judgment in Golak Nath case held that Parliament could not amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and constituent powers and held that the decisiol). in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression \"Parliament may in the exercise of constituent power\" was introduced by the 24th Amendment.\n\nParliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution.\n\nThe constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari\n\nPasad case and the majority judgment in Sajjan Singh case and the dis; enting juJgment in Golak Nath case said, namely that Parliament has the constituent power to amend the Constitution.\n\nThe unamended Article used the words \"An amendment of this' Constitution\". The 24th Amendment used the words \"Parliament may ............ amend by way of addition, variation or repeal any provision of this Constitution\". This has been done because the lead~ ing majority judgment in Golak Nath case expressed the view that there is considerable force in the argument that the expression \"amendment\" in Article 368 has a positive and negative content rn exercise of which Parliament cannot destroy the structure of the Constitution but it can only modify tlic provisions thereof within the framework of the original instrument for its better effect. This observation in Golak Nath case raised a doubt as to the meaning of the word \"amendment\". The 24th Amendment has expressly clarified that duubt. 27-36 S.C. Jndia/73\n\n414 SUPREME COUJIT REPORTS (1973] Supp. S.C.R,\n\nThe leading majority judgment and the concurring judgment in Golak Nath case both held that the fundamental rights could not be amended by Parliament. The leading majority judgment with reference to the meaning of the word \"amendment\" and without deciding the matter observed that there was great force in clie argument that certain fundamental features e.g. the concept of federalism, the institutions of the President and the Parliamentary executive could not be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case wok the view that every provision of the Constitution could be amended in exercise of constituent power. As a necessary corollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by a new ; ub-Article (4) that nothing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amendment of Article 13 by an insertion of sub-Article (4) is also reinforced by the opening words introduced in Article 368 by the 24th Amendment, viz., notwithstanding anything contained in this Constitution, which would certainly exclude Article 13.\n\nThe Constitution 24th Amendment Act raises three aspects. First, does the word \"amend\" include abrogation or repeal of the whole Constitution?\n\nDoes amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was conferred by Article 368.\n\nArticle 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment af the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words \"Constitution shall stand amended\" in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that uhe Constitution stands amended.\n\nThe Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of a written Constitution the Constitution is more fundam\"ntal than any particular law and contains a principle with which all legislation must be in harmony. Therefore, an amendmen~ of the Constitution is an amendment of something which provides\n\nK.ESAVANANDA V, KERI.LA (Ray, J.) 415\n\na system aocording to which a State or nation is governed. An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed.\n\nThere can be radical change in the Constitution like iritroducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would ill its wake bring all consequential changes for the smooth working Qf the new system.\n\nHowever radical the change the .amendment must provide for the mode in which the State is constituted or organised. The question which was often put by Mr. Palkhivala drawing a panorama of a totalitarian State in place of the existing Constitution qn be simply answered by saying that the words \"The Constitution shall stand amended\" indicate that the Constitution of India is being referred to.\n\nThe power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrumept which provides for the making interpretation and implementation of law.\n\nThe theory of unamendability of so called essential featl\\(es is unmeritorious in the face of express provisions in Article 368 particularly in chuses (a) to ( d) of the proviso. Clauses (a) to ( d) relate to 66 Articles dealing with some of the most importan~ features of the Comtitution. Those Articles relate to the judiciary, the legislature and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit d amendment.\n\nThe question which was raised by Mr. Palkhivala as to whether under proviso ( e) to the unamended Article 368 the power of amendment could be increased is answered in the affirmative. The reasons broadly stated arc three.\n\nFirst, under Article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other Article of the Constitution can be removed. The full magnitude of the power of amendment which would have existed but for the limitation could be restored and the power of amendment increase. In Golak Nath case the majority view was that Article 13(2) operated as a limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and providing a new sub-Article ( 4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under clause ( c) to the proviso any other alleged implied limitation can be similarly removed.\n\n416 SUPREME COURT REPORTS [ 1973 j Supp. s.c.R.\n\nSecondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1%5 A.C. 172 it was said that a legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sovereign or whether the Constitution is uncontrolled. The Judicial Committee held that \"such a Constitution can indeed be altered or amended by the legislature if the regulating instrument so provides and if the terms of those provisions are complied with and the alteration or amendment may include the change or abolition of those very provision\". Thus a controlled Oonstirution can be converted into an uncontrolled Constitution vastly increasing the power of amendment.\n\nThirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is no reason why the addition cannot confer a power of amendment which the authorities named in Article 368 did not possess.\n\nBy the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States.\n\nAgain, by amendment future amendments can be made more difficult.\n\nThe picrure drawn by Mr. Palkhivala that a furure amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does not present any legal impediment to such an amendment. The safeguard against such action is external. The contingency of any such amendment being proposed and accepted is extremely remote because such an amendment might sow the seeds of revolution which would be the onlv way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that \"it shall stand amended in accordance with the terms of the Bill\". The product is not required to be \"this Constitution\". It will not be identically the old Constitution. It will be a changed or amended Constirution and its resemblance will depend on the extent of the change.\n\nMore rigid process like referendum or initiative or greater majority or ratification by a larger number of States might be introduced by amendment.\n\nKESAVANANDA V. KERALA (Ray, J.) 417\n\nIt is important to note nhat proviso ( e) to Article 368, namely, the power to ameud Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether <:xpress limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment.\n\nThe Q)nstituent Assembly provided in clause ( e) to Article 368 express and specilic power of 2mendment of Article 368 itself.\n\nThe amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American CoiJ.Stitution, section 128 of the Australian Constitution and section 50 of the Irish Constitution mane of which confers such a power.\n\nDr.\n\nWynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though section 128 is negative . in form but the power of amendment extends to alteration \"of this Constitution\" and this power is implied by its terms.\n\nDr. Wynes also states that by the consent of the States the last part of section 128 could be amended.\n\nThis is only to illustrate as to how other Constitutions are understood by jurists in their countries.\n\nOur Article 368 contains no express limitation on the power of amendment. The provision of clause (~) in the proviso to .Article 368 is not limited to federal features.\n\nThe words \"amendment of this Constitution\" in section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend section 50 itself was intended to be given the framers of the Constitution would have said so. 'v!r.\n\nPalkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words \"amendment of this Constitution\" conferred power to amend that section 50 as well. If no intention to amend that section itself is expressed there is nothing which can be impliep was the dissent. Therefore, it would follow even according to the dissent that no implied limitations on the power of amendment can be read in section 50 if an express power of amendment has been conferred by the Constitution.\n\nMr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the\n\n418 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.\n\npeople by referendum. It was said that the Constitution makers did not intend that ssential fatures should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would not eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr.\n\nSeervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people.\n\nTherefore, as long as Article 368 may be amended under proviso ( e) any amendment of the Constitution by recourse to referendum would be revolutionary.\n\nMr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sovereignty is well settled in parliamentary democracy and it means that (he people express their will through th(!ir representatives elected by them at the general election as the amending body prescribed by the Constitution.\n\nAre fundamental rights unamendable?\n\nMr. Palkhivala contended that apart from Article 13(2) fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Go~:ik Nath case rhe majority view declined to pronounce any opinion on alleged esiential features other than fundamental rights. The concurring view was that fundamental rights were unamendable because they were\n\nKESAVANANDA ti, KERALA (Ray, J,) 419\n\nfundamental. W anchoo, J, for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and non-essential features would introduce uncertainty. Secondly, constituent power of amendment does not admit of any impediment of implied restrictions. Thirdly, because there is no express limitation there can be no implied limitation.\n\nMr. Seervai correctly contended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does not adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply because of the fact that as opposed to other things he is rational and moral. The language of Article 13(2) shows that these rights are conferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did not belong to the people of India before 26 January 1950 and would not have been\n\n~!aimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are not given fundamental rights because these rights are conferred only on citizens as citizens.\n\nArticle 33 enacts that Parliament may by .law modify rights conferred by Part lII in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done . by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good.\n\nWhere there is no restraint the society fails.\n\nArticles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution empha.- sised the social content of those rights. The basic concept of funda-· mental right is therefore a social one and it has a social function.\n\nThese rights are conferred by the Constitution. The nature of restriction on fundamental rights shows that there is nothin.g natural about tl.ose rights. The restrictions contemplated under Arttclc 19(2)\n\n420 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nwith regard to freedom of speech are essential pars of a well organised developed society.\n\nOne must not look at location of power but one should see how it acts. The restrictions contemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Scheduled Tribes is also reasonable in llhe interest of society. This Court in Basheshar Nath v. C.l.T. Dr/hi (1959) Supp. !. S.C.R. 528 sJitl that there are no natural rights under our Constitution and natural rights played no part in the formulation of the provisions therein.\n\nArticles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is no part of the right however important to devotee which cannot and in many cases have not been denied in civilised society.\n\nSubba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights.\n\nThe concurring majority view in Golak Nath case, however, said that there is no natural right in property and natural rights embrace the activity outside the status of citizen.\n\nFundamental rights as both the Attorney General and Mr. Seervai rightly contended are given by the Comtitution, and, therefore, they can be abridged or taken away by the people themselves acting as an organised society in a State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Constitution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with , abolition of untouchability. Article 18 speaks of abolition of titles.\n\nArticle 20 deals with protection in respect of conviction for offences.\n\nArticle 23 refers to prohibition of ttaflie in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion.\n\nArticle 28 contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals wifh protection of interests of minorities. Article 31 (2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Cuurt.\n\nThe Constitution is the higher law and it attllins a form wl1ich makes possible the attribution to it of an entirely new sen of vali- -dity, the validity of a statute emanating from the sovereign people.\n\nKESAVANANDA V. KE!lALA (Ray, J.) 421\n\nJnvested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful tor people. There is no higher law above the Constitution. .\n\nMr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer\n\nrefers to the Wtst Grman Provincial Coustitution which has express!~· excluded basic rights from amendment. If that is so he question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts ditl not consider declaring a constitutional uorm void because of a conflict with higher law the German Jurispruden'e broadened the concept of judicial review by recourse to natural law.\n\nThe post-war Constitution of West Germany distinguished between superior and inferior co'nstitutional norms in so far as certain norm> are not subject to amendment whereas others are.\n\nThe Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was a revival of natural law theory in contemporary German Legal Philosophy. This theory of\n\nntural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disguie to pose itself the conflict between the values which is a problem of constant anti painful adjustment between competing interests, purpo'es and policies.\n\nThis conflict is resolved by ethical or political evolution which finds place in legi5lative policies and also on the impact of chr.nging ideas on the growth of law.\n\nFundamental rights are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution dues\n\nnot recognise any type of law as natural law. Natural rightS\"are mmmed up under the formula which became common during the Puritan Revolution namely life, liberty and property.\n\nThe theory of evolution of positive norms by supra-positive law as distinguished from superior positive law had.important consequences in the post-war revival of natural law in some countries particularly Germany.\n\nMost of the German Constitutions from the early 19th Century to the Nazi Regime did not provide for judicial review.\n\nUnder the Wdmar regime, the legislature reigned supreme and le; zal positivism was brought to an extreme. The re•action after World War II was characterised by decreases of legislative power matched by an increaie of judicial power. It is in this context that Conrad's\n\nwriting on which Mr. Palkhivala relied is to be understood. The\n\nentire suggestion is that norrns could not only be judged by a superior law namely consdtutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial\n\n422 SUPIU!ME cotll\\T IU!POlTS [1973] Supp. s.c.:a.\n\nreview has been considered as a progress in constitutional theory made berween Declaration of Independence and the Federal Convention at Philadelphia.\n\nOn the one hand there is a school of extreme natural law philosophers who claim that a natural order establi5hes that private capitalism is good and socialism is bad.\n\nOn the other hand, the Il)IOrc extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the Staae. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Baslkshar Nath\n\nv. CJ.T. Delhi (1959) Supp. I S.C.R. 528 said that the doctrine of natural rights is nothing but a foundation of shiftmg sand.\n\nMr. Seervai rightly said that if the power of amendment of the Constitution is co-extensive with the power of the judiciary to invalidate laws, the democratic process and the co-ordinate nature of the great departments of the State are maintained. The demqcratic process is maintained because the wiU of the people to secure the necessary power to enact laws by amendment of the Constitution is not defeated. The democratic process is also respected because when the judiciary strikes down a law on the ground of lack of power, or on the ground of violating a limitation on power, it is the dutv of the legislature to accept that position, bu~ if it is desired to pass the same law by acquiring the necessarv power, an amendment validly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of or Constitution that the three great departments o.f the State, the leg1slature, the judiciary and the executive are co-ordinate and that none is superior to the other. The normal interaction of enactment of law by the legislation, of interpretation by the courts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on.\n\nIf the power of amendment does not contain any limitation and if this power is .denied by reading into the Constitution inherent limitations to extinguish the validity of aU amendments on the principles\n\nDSAVANANDA I/, KERALA (Ray, 1;) 423\n\nof essential features of the Constitution which arc undefined and un termed, the courts will have to lay down a new Constitution.\n\nIt is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us no aspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary o~· extending the life of Parliament.\n\nThe problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another. Changes in the ConSlitution arc thus actuated by a sense of duty to the people to help them gca what they want out of life. There is no destiny of man in whose service some m; n can rightfully control others; there are onlY the desires and performances and ambitions that men actually ha, e.\n\nThe duty to maximise happiness means that it is easier to give people what they wan~ than to make them want what you can easily give.\n\nThe framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve .these great ends and carry out the real purposes of the Constitution.\n\n' The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power unrle.r the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the\n\nbasic features of our constitution, namely, the republican and/or democratic form of governmer..t and fundamental Tights could be destroyed and India could be converted into a rotalitarian dictatorship.\n\nThe Court was invited to take into account the consequences of tho kind described. Mr. Palkhivala suggested that a wide power of amend\n\nment would lead to borrow his words to the liquidation of our Constitution.\n\nThe Attorney General rightly said that the unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and exercise of power is subject to popular will and popular control. The\n\n'424 SUPREME COURT REPORTS [1973] Supp. s.c.11.\n\ntheory of implied and inherent limil!ltion was a repudiation of dcin<>- cratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to die power of amendment contained in Article 368 of the Constit, Uti.on ignores the fact that the object of the Constkution is to provide for departments of Sta~ like the judiciary, the legislature and the executive for the governance of a {; Ountry. Apart from the essential functions ofdefence against external .aggression and of maintenance of internal; order a modern State is\n\norganised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The country is :governed by the Cabinet system of Government with ministries responsible to the Houses of Parliament and to the Legislative Assemblies.\n\nIn a democracy the determination of the right policies to be pur sued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Dem<>- cracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have hortative appeal but it is oot suppole by the actual experience in our country or in any countr~. The two basic postulates in dem<>- cracy arc faith in human reason and faith in human nature. There is no higher faith than faith in democratic process. Democracy on adult suffrage is a great experiment in our country. The roots pf our democracy are in the country and . faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Gola/(. Nath decision in 1967 the normal democratic process in our country functioned as provided by the Constitution.\n\nThe principle underlying the theory of taking consequences into • account is best expressed in Vacher & Sons v. London Society of Com. positors 1913 A. C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to mo~ than one meaning, it was legitimate to consider the consequences which would result from any particultu construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which. would not .lead to any of these things should be preferred to one which would\n\nlead to one or more of them.\n\nThe doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words oi: the power in order to effectuate It fully. The two exceptions to this rule are these.\n\nFirst, in order to reconcile powers exdusivcly conferred Oil ditfc1ent legislatures, a narrower meaning can be given to one oE the powers\n\nKESAVANANDA V. KERALA (Ray, J.) 425\n\nin order that both may operate as fully as is possible. (See C. P. & Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93). Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning.\n\nThe State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that no power was intended to be left out.\n\nThe theory of conseguentes is misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies are included in the theory of consequences. In Vacher case it was said that the judicial tribunal has nothing to cio with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of construction. In Attorney Genera! for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution ot Canada that there was no power to refer a matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the correct administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be diflicult for them to hear a case on merits if they have already expressed an opinion. The Privy Council rejected this argument and said that so far as it was a matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe ( 1887) 12 A.C. 575 the Privy Council was invited to hold that the legislature of a province could not levy a tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy\n\nCouncil observed that if on a true construction of section 92 of the British North America Act the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused.\n\nThe absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527=267 U.S. 86 where it was said that if those who were fo separate control of each of the three branches of Government were bent upon defeating the action of the other, normal operations of Government would come to a hak and could be paralysed.\n\nNormal operations of the Government assume that all three branches must oo-operate if Government is to go .on. Where the meaning is plain the Court must give effoct to t even if it considers that such a meaning would produce unreasonable result.. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which-\n\n426 SUPREME COURT REPORTS [1973] Supp. s.c.11.\n\nmight appear to the Court unjust and inequi11able. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislanure and not with the Court. The construction to avoid absurdity must be used with great caution.\n\nIn Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into a meaning which it could not bear.\n\nThe Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by oonsidering the consequences of the exercise of the power and by so reading down the power. The question is not what may he supposed to be intended but what has been said. See Ross v. lllison 1930 A.C. 1. The Supreme Court in Damselle Hotvard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy.\n\nThe real import is that a new law cannot be made by construction.\n\nThe question is one of intention. A meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention.\n\nThe very basis of Parliamentary democracy is that the exercise of power is always subject to the populiar will and popular control. The petitioner's theory of implied and inherent limitations is a repudiation of this democratic process. The underlying theory of democratic go,, ernment is \"the right of a majority to embody their opinion in law subject to the limitations imposed by the Constitution\", per Holmes, J. in Lochner v. Netv York 198 U.S. 45=49 L. Ed. 937. In our Constitution Article 368 contains no express limitation on the amendment of any provision of the Constitution.\n\nfr. Palkhivala relied on the amending provisions 'in the Constitution of America, Canada, Australia, Ireland and Ceylon and also decisions on the power of amendment in those countries in support of his submissions that a restricted meaning should be attributed to the word ''amendment\" and implied and inherent limitations should be read into the meaning and power of amendment.\n\nMr. Palkhivala also relied on the opinion of Cooley in a Treatise on the Constitutional Limitations at pages '36-37 that \"a written Constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and arc boundless in extent, and\n\nKESAVANANDA ti, KERALA (Ray, J,) 427\n\nincapable of definition\". This view of Cooley is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary.\n\nThe other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are withour power to read into the Constitution a restraint of the legi::lature with respect thereto.\n\nThird, if the Courts are not at liberty to declare statutes \\'oid because of their apparent injustice of impolicy, neither can they do , so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.\n\nMr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review (1919-1920) pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be construed to authorise a destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. A somewhat different view of Skinner in the same Law Review is that it is not likely that the Supreme Court would put any !imitations upon the power 0£, Congress to propose amendments and in construing the Fifth Article it would be unwilling to say Congress had proposed an amendment which it did not deem necessary. The discretion is left entirely with Congress.\n\nThe other View on which Mr. Palkhivala relied is of William L.\n\nMarbury published in 33 Harvard Law Review (1919-1920) at pp. 223-\n\n235. The views which Mr. Palkhivala extracted are that it may be safely premised that the power to amend the Constitution was not intended to include the power to destroy it. Marbury relies on Livermore v.\n\n428 SUPREME COURT RJ!pORTS (1973] Supp. S.C.ll.\n\nW iu'te 102 Cal 118 where it is stated that the term \"amendment\" implies' such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.\n\nThere are other views of Marbury on which the Attorney General relied and which were not extracted by Mr. Palkhivala. Those views are .that after excluding from the scope of its amending power in Article V of the American Constitution such amendments as take away legislative 1'9Wers of the State there is still left a very broad field for its operation. All sorts of amendments might be adopted which would change the framework of the federal Government, the thing which the- Constitution was created to establish, which would change the distribution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones.\n\nThe Attorney Generai also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-066 as a reply to Marbury.\n\nFrierson's view is that tlhe security for the States was provided for by the prov'ision for the necessity of ratification by . three-fourths of the- States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Constitution to ensure integrity of States.\n\nThe Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a polirical society or Ste on the one hand and governmental organs on the other to appreciate that constit111tional limitations are against governmental organs. The writer's view is that an individual has no legal rights against a sovereign organised political society except what the society gives. The doctrine of national sovereignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amendment is left to legislatures because as a matter of convenience the legislatures generally express the will of the people. In the Constitution the people prescribe the . manner in which they shall amend the Constitution. McGovney states that_ an amendment of a particular statute means 'Usually it is a change germane to the subject matter of that statute. Any change in the GOvernment of the nation is germane to the Constirution.\n\nAny change altering the disposition$ of power would therefore be germane to the purposes of the instrument. McGovney's view is that it is clear that no limitation on the amending power can be found in this notion of necessity for germaneness.\n\nKl!SAVANANDA I), KERALA (Ray, J.)\n\nThe AttQrney General also relied on an Article \"On the views of W. F. Dodd published in 30 Yale Law Journal p. 321 seq. and of H. W.\n\nTaft, published in 16 Virginia Law Review p. 647 seq. The view of Dodd is this. There are no implied limitations on the amending power.\n\nThe Supreme Court in the National Prohibition cases rejected the arguments presented in favour of implied limitations. To narrow down the meaning of amendment Of to adopt implied limitations would not only narrow down the use of the amending power but would also leave the question of amending power in ea.ch case to judicial decision without the guidance of any legal principle. Taft's view is that by reason of the Tenth Amendment which provided that the powers not delegated tJo the Uruted States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people, the amending power in Article V of the American Constitution was not limited by .the Tenth Amendment.\n\nThe question which has arisen on the Fifth Article of the American Constitutioo is whether there are implied limitatioru; upon the power to amend. The two express limitations were these. First, r, o amendment . which may be made prior to 1808 shall in any manner effect the First and the Fourth cbauses in the Ninth Section of the First Article. That Limitation became exhausted by passage of time.\n\nThe second exnress limitation is that no State without its consent shall be deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous consent of the States.\n\nThe 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments\n\nadvanced were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only attect the: powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States.\n\nThe power of amendment was given for the purpose of making alterations and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. 28-36 S, C. lndia/71\n\n430 SUPRl!Mll COUllT REPOll.TS [ 1973] Supp. s.c.R.\n\nThe decision in the National Prohibition Cases is that there is no limit on the power to amend the Constitution except that State may not without its consent be deprived of its equal suffrage in the Senate.\n\nIn Rhode Island v. Palmer 253 U.S. 350=64 L. Ed. 947 the 18th Amendment was challenged to be not within the purview of Article V.\n\nThe iutlgment in Rhode Island case was that the amendment was valid.\n\nIn Rhode Island case the grounds of attack were that the amendment was legislative in character and an invas\\on of nallural rights and . an encroachment on the fundamental principles of dual sovereignty but the contentions were overruled.\n\nIn Hawke v. Smith 253 U.S. 221 a question arose as to whether the action of the General Assembly of Ohio ratifying the 18th Amendment known as National ProhiLition could be referred to the electors of the State under the provisions of the State Constitution. It was held that these provisions of. he State were inconsistent with the Constitution of the United States. The decision of the Court was unanimous. The two methods of ratification prescribed by Article V of the Constitution are by action of the legislatures of the three-fourths of the States or conventions in the like number of States. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution~ That power is conferred upon Congress.\n\nArticle V was held to be plain and to admit of no doubt in its interpretation. The choice of means of ratification was wisely withheld from conflicting action in the several States.\n\nAgain, in Lesser v. Garnett 258 U.S. 130 there was a suit to strike out the names of women from the register of voters on the ground chat the State Constitution limited suffrage to men and that the 19th Amendment to the Federal Constitution was not validity adopted. The 19th Amendment stared that right of ciens to vote shall not be denied on account of sex. It was contended that the amending power did not extend to that situation. The Supreme Court there rejected that contention. The Supreme Court said tlhat the function of a State legislature in ratifying the proposed amendment to the federal Constitution l'ike the function of Congress in proposing the amendment is a federal function derived from the federal Constitution; and it transcend! any limitations sought to be imposed by the people of a. tate.\n\nIn United States v. Sprague 282 U.S. 716 a contention was advanced that the 10th Amendment recognised a distinction between powers reserved to the States and powers reserved to the people and that State legislatures were competent to delegate only the former to the National .\n\nGovernment; delegation of the latter required action of the people\n\nKESAVANANDA V. KERAi.A (Ray, J.) 431\n\nthrough conventions in the severa~ states. The 18th Amendment being of the latter character, the ratifiqtion by State legislatures was contended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication.\n\nThe decisions iii Rhode Island v. Palmer 253 U.S. 350, Hawke v.\n\nSmith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v.\n\nSprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embudied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. The 19th Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing. The Supreme Court brushed aside these arguments as wholly unworthy of serious attention and held both the amendments valid.\n\nMr. Palkhivala contended the word \"amendment\" in Article 368 would take its colour from the words \"change in the provisions\" occurring in the proviso. The American decisions illustrate how the Supreme Court consistently rejected the attempts to limit the meanings of the word \"amend\" in Article V of their constitution because of the reference to ratification by legislatures or conventions. Where words are read in their context there is no question of implication for cor.- text means parts that precede or follow any particular passage or text and fix its meaning.\n\nThe rule of nosciitur a sociis means that where two or more words which are susceptible of analogous meaning are couplied together, they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.\n\nThis rule has been found to have no application to Article V of the American Constitution because conventions and legislatures are both deliberative bodies and if an amendment can be submitted either to the legislatures of States or to conventions at the absolute discretion of the Congress, it is difficult to say that the character of the amendment is in any way affected by the machinery by which the amendment is to be ratified. In Rhode Island case the contention that an amendment of the Constitution should be ratified by conventions and not by legislatures was rejected. In Sprague case the ; ontention that matters\n\n432 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\naffecting the liberty of citizens could only be ratified by conventions was not accepted and the Supreme Cour.t refused to read any implication into Article V of the American Constitution. The Supreme O:Jurt said that in spite of the clear phraseology of Article V, the Court was asked to insert into it a limitation on the discretion conferred on it by the Congress. The Supreme Court did not accept any implied limitation. Where the intention is clear there is no room for construction and no excuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 It has been said when the people delegated the power of. amendment ro their representatives the power of amendment cannot be excluded in any way other than prescribed nor by any instrumentality other than there designated.\n\nMr. Palkhivala relied on some Canadian decisions the Initiative anti Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamordiere anil Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation. by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot-detract from the basic rights of freedom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law.\n\nIn the Initiative and Referendum case the Judicial Commitke said that section 92 of the Briti5h North America Act entrusted legislative. power in a province to1 its legislature and to that legislature only. A power ot legislation enjoyed by a provincial legislatare in Canada can while preserving its own capacity intaot seek the assistance of subordinate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario was held to be entitled to entrust to the Board of Commissioners authority to enact regulations. It does not follow that such a legislature can create and endow with its own capacity a legislative power. The Initiative and Referandum case decided that in the absence of clear and unmistakable language the power which the Crown possessed through a person directly representing the Crown could not be abrogated. The Lieutenant Governor under the British North America Act referred to as the B. N. A. Act was an integral part of the legislature. The Initiative and Referendum Act was found to be one which wholly excluded the Lieutenant Governor from legislative authority. The only powers of veto and disallowancc preserved by the Initiative and Referendum Act were related to acts of legislative\n\nXl!SAVANANDA I/, KERALA (Ray, J.) 433\n\nAssembly as distinguished from Bills. Therefore the powers of veto and disaJowancc referred to could only be those of the Governor General under section 90 of the B. N. A. Act and not the powers of the Lieutenant Governor whlch arc at an end when a Bill has become an Act.\n\nSection 11 of the Act provided that when a proposal for repeal of some law has been approved by majority of the electors voting that law is automatically to be deemed repealed, at the end of 30 days after the publication in tlie Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the lcgisltive authority. The Initiative and Referendum decision related to 'an Act of the legislature and secondly to the Act being ultra vires the provwons of the B.N.A. Act. This is not at all relevant to the amending power of a Constitution. The Act was found to be 'invalid because the machinery which it provided for making the Laws was contrary to the machinery set up by the B.N.A.\n\nAct. The impugned Act rendered the Lieutenant Governor powerless to prevent a law which had been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up a legislature different from that constlituted by the B.N.A. Act and this the legislature had no power to do.\n\nThe other Canadian decisions arc based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislat'Ures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sections of the B.N.A.\n\nAct. Section 17 establishes a Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find thci.F source in natural law which cannot be taken away by positive law.\n\nThe first view found expression in Switzman case. There was an Act respecting communistic propaganda. The majority Judges found that the subject matter was not within the powers assigned to the Province by section 92 of the B. N. A. Act. They further held that the Act constituted unjustifiable inl'Crfc_rcncc with freedom of speech and expression essential under the democratic form of government established in Canada. The Canada Elections Act, the B.N.A. Act provided for election of Parliament every five years, meeting of Parliament once a year. It was contended that it was implicit in all legislations the right of candidates to criticise, debate and discuss political, economic and social principles.\n\n434 SUPREME COUllT REPORTS [1973] Supp. s.c.R.\n\nHess case raised a question of jurisdiction of the Court to grant bail. Under section !025A of the Criminal1 Code a person was detained in custody. Section 1025A providro that an accused might be det:1ined in custody without bail pending an appeal to the Attorney General.\n\nThe Saumur case related to a municipal bye-law requiring permission for disribution of books and tracts in the city streets. The Sa11mur case relid on the observations of Duff, C.J. in Re Albert Legislation\n\n(1938) 2 D.L.R. 81==1938 S.C.R. 100 that the right of free public discssion on public affairs is the breath of life for parliamentaly i11stitut10ns.\n\nIn Chabot case public schools in the Province of Quebec were operated by School Commissioners ePected by tax payers of whom the religious majority were Catholics. A dissident tax payer raised the question as to whether dissidents might establish their own schools or they might send them to a school of a neighbouring municipality and thereupon, become exempt from paying tax. The majority held that certain regulations passed by the Catholic Committee were intra vires because they must be construed as confined to Catholic children.\n\nThe Canadian decision show first that certain Judges relying on the Preamble to the B.N.A. Act that the Canadian Constitution is to be similar in principle to that of the United Kingdom raised the vires of some of the legislations affecting freedom of speech. Secondly, the Canadian Constitution was given by the British Parliament and if the Judges who used such dicta referred to that part of the Preamble they were emphasising that the rights of the Canadian people were similar to those in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and conventionl.\n\nNone of these decisions relates to amendment of the Constitution.\n\nNone of these decisions indicates th; it there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of a sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries.\n\nThere are no explicit guaranteed liberties in the British North America Act. In Canada the constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement , is competent to the Dominion or the Province as the case may be. Apart\n\nIUSAVANANDA II, KERALA (Ray, J.)\n\n43.S\n\n, from the phrase \"civil rights in the Province\" in section 92(13) there • i• no language In sections 91 and 92 which even remotely expresses civil liberties vahies.\n\nThe Canadian Bill of Rights assented to in 1960 in section 2 states that every law oc Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights be so construed and applied as not to abrogate, or infringe or authorise abrogation, abridgement or infringement of any of the rights of freedom recogn'.ised and declared. The view of Laskin in Canadian Constitutional Law (3rd Edition) (1%9) is that in terms of legislative power the political liberties represent independent constitutional values which are exclusively in federal keeping. Since the enactment of the Canadian Bill of Rights the question has hardly any substantive effect because the Canadian Parliamena can make a declaration in terms of section 2 of the Bill of Rights that a law abrogating a freedom in the Bill of Rights is operative.\n\nMr. Palkhivala relied on llhe Australian decisions in 'Taylor v.\n\nAttorney General of Queensland 23 C.L.R. 457 and Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that thrre is inherent and implied limitation on the power of amendment.\n\nIn Taylor case the Parliamentary Bills Referendum Actof 1908 was challenged. The Parliament Bills Referendum Act provided that when a Bill passed by the Legislative Assembly in .two successive sessions has in the same two sessions been rejected by the Legislative Council:, it may be submitted by referendum to the electors, and, if affirmed by them, shall be presented to the Governor for His Majesty's assent, a!Jd upon receiving such assent the Bill shall become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary; The Australian States Constitution Act, 1907 provided that it shall not be necessary to reserve, for the signification of His Majesty's pleasure thereon, any Bill passed by the legislatures of any of the States if the Governor has previously received instructions from His Majesty to assent and does assent according~ to the Bill.\n\nIn 1915 the Legislative Assembly of Queensland passed a Bill to amend the Constitution oc Queensland by abolishing the Legislative Council. The Bill was passed by the Legislative Assembly. The Le~ lative Council rejo:tcd the Bill. The Legisliative Assembly again\n\npassed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act\n\n436 SUPREMl! COURT REPORTS [1973] Supp. s.c.R.\n\n1908 issued regulations proviiding for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended.\n\nThe questions for the opinion of the Court were : (1) Is the Constitution Act, Amendment Act of 1908. a valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Aot passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? ( 4) Was the Referendum valid ?\n\nThe Colonial Laws Validity Act 1865 'in section 5 conferred full power on every representative legislature to make l; iws respecting the constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Counci~ or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was Leid to be an Act respecting the powers of the liegislature. Section 5 of the Colonial Laws Validity Acn provided the authority for the legislation.\n\nMr. Palkhivala extracted three propositions from the Taylor case.\n\nFirst, probably the power to make laws respecting the Constitution, power and procedure of such legislature docs not extend to authorise the elimination of the represelltativc character of the legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the representative character of the legislature is a basic condition of the power relied on, and is preserved by the word \"such\" m the collocation of words in the Constitution \"of such legislature\" p. 474 per Issacs, J. Third, when power is given to a Colonial. legislature to alter the Constitution of the legislature that must be read subject to the fundamental conception than consistently with the very nature of the Constitution as an Empire, the Crown 'is not included in the ambit of such power p. 474 per Issacs, J.\n\nThe decision m Taylor case was to the effect that the Acts did not alter the representative. characr of the legislature as defined in section 1 of the Colonial Laws Valiidity Act, 1865, nor did they affect the position of the Crown. The first two propositions on which Mr.\n\nPalkbiivala relied, namely, the observations of Barton and Issacs, JJ. p. 468 and p. 474 were both prefaced by the word \"probably\" which amply shows that the observations are obiter. The question whether the representative character of the legislature could be changed or whether the Crown could be eliminated did not call for decision. The other learned Judges Gavan Duffy and Rich, JJ. said \"It may perhaps\n\nKl!SAVANANDA V. Kl!RALA (Ray, J.) 437\n\nbe that the legislature must always remain a representallive legislature\n\nas defineJ by the statute, but it is unnecessary in the present case to <letermine whether that '1s so or not\".\n\nIssacs, J. held in that case that the word \"legislature\" did not include rhe Crown because section 7 of the Colonial Laws Validity Act used the expresSlion \"legislature\" followed by the words \"or by\n\npersons or bodies of persons for the time being acting as such legislature\" to show that the legislature was exclusive of the Crown. The assent of the Queen or the Governor was thus regarded as an additional factor. Therefore, Issacs, J. said that when a power is given to the Colon; cl legislature to alter the Con•titullion that must be read subject to the fundamental conception, that the Crown is not included in the ambit of such power. Those observations are made in the context ot the provisions of the Colonial Laws Validity Act where a \"colony\" is defined to include all of Her Majesty's possessions abroad\".\n\nThe observations therefore mean that when power to alter the Constitution was conferred upon a colony which is a part of Her Majesty's possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as a part of a colonial legislature.\n\nThe representative character of the legislature does not involve oany theory of implied limitation on the power of amendment. Such\n\nlegislature as was emphasised by Issacs, J. shows that the !imitation On the power of amendment flowed from express language of section 5 of the Colonial Laws Validity Act and was not dependent upon .any implication.\n\nIn the State of Victoria case th~ valid'ity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. The Pay.-Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Cemmon- wealth Parliament, in the exercise of its power under section 5l(ii) of the Constitution to make laws with respect to taxation, but so as not to discriminate between States or parts of State was held competent to include the Crown in right of a State in the operation of a law imposing tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State in the definition of \"employed\" in section 3(1) of the Pay-Roll Tax Assessment Act 1941-1969 thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees including employees of depart- ments engaged in strictly governmental functions was also held to be a valid exercise of the power of the Commonwealth under section 51\n\no( the Constitution. Section 114 of the Constitution enacts ban on the\n\n438 SUPREME COURT REPOltTS (1973) Supp. S.C.R,\n\nimposition by the Commonwealth of a tax on property of a State.\n\nThis ban wos not offended. A law which in substances takes a Srate or its powers or functions of government as its subject matter is invalid' because it cannot be supported upon any grant of legislative power, but there is no implied limitallion on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitufion .. There was no necessary implication restraining the Commonwealth from making a law according to the view of three learned' Judges. Four other learned Judges held that there is an implied limitation as lack of Commonwealth legislatlive power but the Act did not offend such limitation ..\n\nThe limitation which was suggested to be accepted was that a Commonwealth fuw was bad if it discriminated against States in the sense that it imposed some special burden or disability upon them se> that it might be described as a law aimed at their rdtridtion or control.\n\nIn the Australian case Barwick, C.J. stated that the basic principles of construction of the Australian Constitution were definitely enunciated in the Amalgamated Society of Engineers v. Adelaide Steam.<hif\" .Co. Ltd. (1920) 28 C.L.R. 129 which unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth in accord\\tnce with the ordinary rules of Constitution.\n\nMr. Palkhivala relied on some Irish cases in support of theory of implied and inherent limiitafions.\n\nIn Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for cons.ideration. Article 50 provided that within 8 years from the commencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by roferendum. The other provision in Article 50 was that amendment \"shall be subject to the provisions of Article 47\" of the Cons!iitution. Article 47 made pr<>\"\n\nvisions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiryof 8 years there was an amendment of the Constitufion whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Constlitution are so fundamental as to beincapable of aheration. Second, Article 50 does not autlioris.e any change in these fundamental Articles.\n\nKESAVANANDA V, KERALA (Ray, J.) 439\n\nThe decision of the Judicial Committee in Moore & Ors. v.\n\nAttorney General jor the Irish Free State & Ors. 1935 A.C. 484 throws a flood of hight on the question of amendment of the amending power in a written Constitution. The Treaty and the Constituent Act scheduled to the Irish Free Constitution Act, 1922 being parts of an Imperial Act formed parts of the statute law of the Unin:ed Kingdom.\n\nThe first clause of the Treaty provided that Ireland shall have the same constitutional stl.tus in the community of nations known as the British Empire as the Dominion of Canada, Commonwealth of Australia, the Domin.ion of New Zealand, and the Union of South Africa with a Parliament having force to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament and shal~ be styled and known as the Irish Free State.\n\nThe second clauso of the Treaty provided that the law practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. Of the Articles of the Constitution, Article 12 created a legislature known as the Oireachtas and the sole and .exclusive power of making laws for th~ peace, order and good government of the Irbh\n\nFree State was vested in the Oireachtas.\n\nArticle 50 provided that amendment$ of the Constitution within the terms of the Scheduled Treaty might be made by the Oireachtas.\n\nArticle 66 provided that the Supreme Court of the Irish Free State would have appellate jurisdiction from all decisions of the High Court and the decision of the Supremo Court would be final and conclusive.\n\nThe proviso to that Article stated th:111: not!liing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council.\n\nThe proviso to Article 66 was inserted to give effect to Article 2 of the Treaty and hence under Article 50 of the Constitution it was argued that the proviso to Article 66 could not be amended in the way it was sought to amend it by abolishing tlhe right of appeal.\n\nArticle 50 contained another limitation that amendments within the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words \"within the terms of the Treaty\" were deleted from Article 50. Thereafter Amendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council.\n\nThe Judicial Committee in Moore case noticed that \"Mr. Wilfrid Greene for the petitioners righdy conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50\n\nas the period during which amendment might be made without a\n\n440 SUPIIBl\\iE COURT IIBPORTS [1973} Supp. S.C.R.\n\nreferendum a period of• 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. ·\n\n It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a\n\nsemi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new constitution assembly by the people of Irel; i.nd. The decision of the Supreme Court of Ireland in Ryan .case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireach- . tas did must be deemed to have been done in the way in which alone it could legally be done, that is by virtue of the powers given by the statute. The abolition of appeals to Privy Council was a valid amendment.\n\nThe decision in Liyanage v. Queen (1%7) 1 A.C. 259 was also relied\n\n-011 by Mr. Palkhivala for the theory of implied and inherent limitations. The Criminal Law Amendment Act passed by the Parliament of Ceylon in 1%2 contained substantial modifications of the Criminal 1'rocedure Code. There was ex post facto legislation of detention for\n\n60 days of any person suspected of having committed an offence against the State by widening the clas:i of offences for which trial without jury by three judges nominated by the Minister of Justice would be ordered. An arrest without warrant for waging war against the Queen became permissible and new minimum penalties for that offence were prescribed and for conspiring to wage war against the\n\nQueen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code. The Act was expressed to be retrospective to cover an abortive coup d'etat on 27 January, 1%2 in which Liyanage and others took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about the date of the commencement of the Act, whichever was later. The second Crirninal Law Amendment Act of 1%2 (No. 31 of 1962) substituted the Chief Justice for the Minister of Justice as the person to nominate the three Judges but left unaffected other provisions for the former Act.\n\nKESAVANANDA V. KERA.LA (Ray, J.) 441\n\nThe Supreme Court of Ceylon convicted the appellants and sentenced them to 10 years rigorous imprisonment the minimum prescribed by the Criminal: Law Act 1 of 1962.\n\nThe Privy Council held the legislation to be ultra vires on two grounds. The Acts could not be challenged on the ground that they were contrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave m exIStence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of a sovereigu independeru: State. The Acts were declared to be bad because thev involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon.\n\nThe silence of the Con•titution as to the vesting of judicial power , was inconsistent with any intention that it should pass to or be shared ' by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report that section 29( 1) of the Ceylon Constitution confers power on Parliament to pass legislation which does not enable a law to usurp the judicial power of the judicature. The Judicial Committee answered the question which was posed as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a twc;.thirds major; ty hy statin, g that such a situation dicl not arise there and if any Act \\vag passed without recourst to section 29( 4) of the Ceylon Constitution it would be 11/tra vius.\n\nThe Judicial Commit1tee found that urnler section 29( 4) elf the Cevlon Constitution there coul<I be an amen<lment only by complying with the proviso, which would be the manner and form and would not be a limitation on the width of the power. The Ceylon case is not an authority for the proposition of itnplied anc1 inherent limitation on the amending power.\n\nIn Liyanage case the Privy Council rejected the contention that powers of the Ceylon Legislation should be cut tlown by reference to the vague an<l uncertain expression \"fundamental principles of Jlritish Law\". In deci, ling whether the Constitution of Ceylon provided for a separation between the legislature and the judiciary the Pri\\'y Council did not refer to consequences at all, but referred to the fact that the provisions relating to the legislature and the judicature were found in two separate parts of the Constitution. The provisions for appointment of the subordinate judiciary by a Commission consisting exclusively of Judges with a prohibition against any legislator being a member thereof and the further provision that any attempt to influence the decision\n\n442 SUPaEME COURT REPORTS (1973] Supp. s.c.R.\n\nwas a criminal offence were held by the Judicial Committee to show that the judiciary was intended to be kept separate from the legislature and the executive. This conclusion was based on a pure construction of the provisions of the Act. The reference to consequences was in a different context. The Privy Council recognised that the impugned law dealt with a grave exceptional situation and were prepared to .assume that the legisfature believed that it had power to enact it.\n\nAgain in Kariappar case 1968 A.C. 717 the Judicial Committee considered a Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed chuc disabilities for 7 years on person to whom the Act applied and provided for the vacation of the seat as a Member of Parliament. The words amend or repeal in Section 29( 4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not adntlt ambiguity.\n\nTo introduce into our Constitution the doctrine of implied and :inherent Limitations on the meaning of the word \"amendment\" by\n\nupholkling the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1%8 A.C. 717 are authorities for two propositions. First, that in the exercise of the po\"1er of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word \"amendment\" means alteration. In lbralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure.\n\nThe decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subjc; ct to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited power of amendment, lhnited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, inaidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is a power to a'clmit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Con!!litution 6nd is not a power to override the constitutional scheme. It is manifest that when a new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does not override the constitutional scheme.\n\n. KESAVANANDA V. KERALA '(Ray, J.)\n\nIt is an amending power of a limited nature and is supplemental; incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution. This decision does not say that there are implied limitations to the amending power.\n\nThe petitioner challenges the legality and the validity of 1\n\nthe Constitution (25th) Amendment Act. ·\n\nThe Constitution (25th) Amendment Act has first amended Article 31(2), second added Article 31(2B) and third introduced Article 31C. Article 31(2) is amended in two respects. First, it substituted the word \"amount\" for the word \"compensation\" for property acquired or requisitioned. Second, it 'is provided .that the acquisition or requisition law shall not be. called in question on the ground that whole or any part of the amount is to be given otherwise than in cash. Article 31(2B) has been inserted to the effect that nothing in sub-clause (£) of clause (1) of Article 19 'shall effect any such law.as is referred to in clause (2). '\n\nArticle 31C t~; es 'that. notwithstanding anything .. contained in Article 13 no law giving effect to the policy of the State towards secu- ring the 'principles specified in clause (b) or clause (c) of Arfide 39 shall be deemed to be void on the ground that it is inconsistent with\n\nor takes away or abridges any of the rights conferred by Article 14 or Article 19 or Article 31 and no law containing a declaration that it is for giving effect to such policy shall be called ri.n question in any court on the grounp that it does not'give effect to such policy. It is provided that where such law is made by the legislature of a State the provisions of this Article shall not apply thereto unless such law having ·· been reserved for the consideration of the President has received his assent.\n\nThe basic controversy is really regarding the right to property and I the acquisition of property by the State. The Constitution of India was intended to achieve po1itical liberty on the one hand and economic and social liberty on the other for all citizens of India. The Directive Principles.in the Constitution are also fundamental iin the governance of the country and it shall be. the duty of the State to , apply these principles iri making laws. That is Article 37. It can be achieved by making changes in the economic. and social structure of the society.\n\nThe resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22. January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of .things past. In 1929 the Congress resolution was that \"it was essential to make revolutionary changes in the economic and social structure of the wciety and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the\n\n444 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nstarving millions. In such economic and social programme the State is to own or control the key industries and scrVlices, mineral resources railways, waterways, shipping and other means of. public transporr: In 1945 the Working Committee said that the concentration of wealth and power in the hands of individuals and groups was to be prevented.\n\nSocial control of the mineral resources and of the prinaipal methods of production and distribution in land, industry and in other departments of national activity would be necessary to develop the country into cooperative commonwealth. In the case of industnies which in their nature must be run on a large scale and on centralised basis, it was felt that they should belong to the community and they should be so organised that the workers become not only co-sharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of production as well as distribution and exchange must belong to and be regulated by the community in its own interest. The framers of the Colllltitution wanted a social structure which would avoid the acquisitive economy of private capitalism and the regimentation of a totalitarian State.\n\nIn this background the Constitution was created with the object of effecting social revolution. The core of the commitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be \"conscience of the Con9titution\". The object of Part III was to \"liberate the power of man equally for distribution to the common good\". The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are a declaration of economic inl(\\ependence so that our country men would have economic as well as political control of the country.\n\nThe centre ol the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they arc to prevail' over fundamental rights of a few in order io subscrve the common good and not to allow economic system to result to the common detriment. It is the duty of the State to promote common good.\n\nIf the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellbwmcn as means only and not also an end. The notion of common good was needed '.o explain away the difference between the prinCiples of reasonable self love and benevolence. The distribution of material resources is to subserve die common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment; Again, the economic system is to work in such a manner that the means of production are not used to the common detriment.\n\n11:.ESAVANANDA V. llMU (Rily, J.) 445\n\nThe declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney Goneral to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democrati~ State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen assertt enjoyment for fundamental rights under the Qmstitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of at! i:itiuns, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but atends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental action& arc dictated by the experience of the needs ri time. A fundamental right may be regarded as fundamental by one generation. It maJl be considered to be inconvenient limitition upon legislative power by another generation. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights arc built upon property those who have no property will have no rights. That it why the State\n\nhas ro balance interest of the individual with the interest of the society. Industrial democracy is the necessary complement to polticial democracy. The State has to serve its members by organising an avenue of consumption. This can be done by socialisation of those clements in the common welfare which are integral to the well being of the community.\n\nThe petitioner's cha1lenge to the amendment on Article 31(2) is as follows. The right to property is one of the essential features of the Constitutian. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19(l}(a) is meaningless if the publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1) ( c) to form trade unions will be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to practise any profession or carry on any occupation, trade or business under Article 19(1) (g) wil~ be tl1e right to do forced labour for the State if the net savings from the fruits of a citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 will lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. The implication of the proviso to Article 31 (2) is tliat the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the\n\n29-36 S.C. IRdia/73\n\n446 SUPlll!ME COUllT lll!POKTS [1973] Supp. s.c.1t.\n\no0ther fundamental rights. Exercise of fundamental rights would be .affected by the deprivation of property without compensation in the legal oense and the only exception to this power of the Slate is the a.se of educational institution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower ' the State to fix an amount on a basis which need not be disclosed even . to the members of the legislature and which may have no relation to\n\nthe property sought to be acquired. The amount is not to satisfy any\n\nof , the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity i;>f law. Article 31(2) has nothing to do with estate, zamindaries, land teforms or agrarian reforms which are specifically dealt with by Arti- .clc 31A.\n\nThe right to acquire, hold and dispose of property under Article 19(1) (f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public. If Article 19(5) permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19(l)(f) inapµlicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions wh are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1J(f) appl!o.l to acquisition or requisition, law which permitted a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending Article 19( 1) ( f). Extracting cliat observation it is said that the amount fixed without giving him a hearing or amending the Land\n\nAcqui.sition Act to provide that any man's .land or house can be acquired without notice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or core of fundamental right to property.\n\nAfter the substitution of the neutral expression \"amount\" for \"compensation\" in Article 31(2) by the Constitution (25th) Amendment Act the Article still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. The legislature may either. lay down principles for the determination of the amount or may itself fix the amount. .Before the amendment the interpretation of Article 31 (2) was that the law was bound to provide for the payment of compensation in the sense !)f equivalent in value of the property acquired. This was the interpretation given in the\n\nBank Nationalisation case even after the Corutituti?n 24th Amendment Act, which said that the adequacy of compensation could not be challenged. The Constitution 25th Amendment Act states that the law .no longer need provide for the giving of equivalent in value of the\n\nKl!SAVANANDA V, KERALA (Ray, J.) 447\n\nacquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legislative judgment. Specification of principles means laying down general guiding rules applicable to all persons or transactions covered thereby. In fixing the amount the legislature will act on rhe general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include considcraitions of social justice as against the equivalent in val!uc of the property acquired .. Considerations of social justice will include the relevant Dircclive Principles particularly in Article 39(b) and (c). These principles arc to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31 (2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constltution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amow1t is to be given ot; herwise than in cash.\n\nIf the word \"compensation\" as it stood prior to the amendment of Article 31 (2) must mean equivalent value in cash it is said by the\n\nSolicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Re-adjustment In the social order may not be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If naions wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amendment protects the law in one respect, namely, that amowlt payable to me owner is no longer to be measured by me standard of equivalellit\n\nin value of me acquired property. The quantum cannot be a matter for judicial review. Ever since the Fourth Amendment the adequacy of compensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is not justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is contained implicitly in some other provision and is, therefore, open to examination,\n\nJust as principles which were irrelevant to compensation were invalid prior to the Constitution 25th Amendment it was said that if\n\n448 SUPREME COURT REPORTS [ 1973] Supp1 S.C.R.\n\nany principles are adopted which are irrelevant to the concept of amount as a legal concept or as having a norm the law would be invalid because the amount would be purely at the wil• or at the discretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any contrary view according to the petitioner would mean that under Article 31 (2) state would have authority to specify principles which could be arbitrary or specify the amount which could be arbitrary.\n\nIt was also said th.at as a result of the proviso to Article 31 (2) after the 25th Amendment the law providing for compulsory acquisi tion of property of an educational institution established by a minoritr referred to in Article 31 (1) the State was to ensure th.at the amount fixed or determined was such as would not restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which woukl be sufficient not to damage the essence of that right. But under Article 31 (2) after the 25th Amendment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed.\n\nThe word \"amount\" in Article 31 (2) after the 25th Amendment is to be read in the entire collocation of words. No law sh.all be called in question in any Court on die ground that the amount so fixed or determined is inadequate or the who~ or part of it or any part of such amount is given in cash. In Article 31 (2) the use of the word \"amount\" in conjunction with payment in cash shows that a sum of\n\nmoney is being spoken of. Amount is a sum me:rriing a quantity or amount of money, or, in other words, amount means a sum of money.\n\nArticle 31 (2) prior to as well after the 25th Amendment indicates two alternatives to the legislatures. either to specify the principles for determination of the amount or to fix the amount or \"compensation\" prior to the amendment.· In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause.\n\nArticle 19(l)(f) provides that all citizens shai have the right to hold, acquire or dispose of property whereas ArticJe 31 (2) deals with law by which the property is acquired. Such law acquiring property dir<etly extinguishes the right to h.old or dispose of property acquired.\n\nArticle 19(1)(f) is excluded from Article 31(2) in order to make Article 31 (2) self contained. The riht to hold property cannot coexist with the right of the State to acquire property. That is why Article 31(2) is to be read with Articll:: 31A, 31B and 31C, all the Articles being under the headin& \"Right to Propotf'.\n\nKESAVANANDA II. KUALA (Ray, J.) 449\n\nIt has been held by this Court in F. N. Rana case ( 1964) 5 S.C.R. 294 that Land Acquisition Act docs not give the right of quasi-judicial procedure or the requirements of natural justice as section 5A of that Act! has been held to be administrative. It has also been held by this Court that a Requisition Act which did not give a right of representation before an order for requisition was made did not violate Article 19(1) (f). (Sec S. N. Nandi v. State of West Bengal A.LR. 1971 SC 961).\n\nThe other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons.\n\nFirst, there is a distinction bcween cases where the fundamental rights arc amended and laws which would have been void before the 25th Amendment arc permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which arc void as offending those rights arc validated by a legal fiction that they shall not be deemed to be void. The law is in the first case constitutional in reality whereas in the second case the law is unconstitutional in reality but is deemed by a fiction of law not to be . void with the result that laws which violate the constitution are validated and there is a repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which arc passed by Parliament or State legislatures in excess of legislative competence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 30J. Article 31C gives a blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article 32. The Directive Principles arc not enforceable by reason of Art\\clc 37. Y ct it is said that while giving effect to Directive Principles fundamentan rights are abrogated.\n\nThirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law witliin Article 31C which overrides and violates several fundamental rights can be passed by a simple majority.\n\nFourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. '.Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other pact of the Constitution but Article 31C empowers the State lcgislaure to pass laws which virtualliy involve repeal of the fundamental ilghts. Power of amending the Constitution is delegated to State legislatures.\n\n450 SUPREME COURT REPORTS [ 1973 J Supp. s.c.R.\n\nFinally, it is said that the fundamental rights undr Article 14, 19 and 31 which are sought to be supers<Xled by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by a minority an amount fixed should be such as not to restrict or abrogate the right of the m.inorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, It is said that if a law violates the right of the minority under Articles 25 to 30 such a law would be .no law. Therefore, deprivation of property under such law would violate Article 31(1). But the 25th Amendment by Article 31C abrogates Article 31(1) and minorities can he deprived of their properties held privately or upon public, charitable or religiou' trusts by law which violates Articles 25 to 30.\n\nThe pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31(1) does not arise. Law referred to in Article 31C must be made either by Parliament or by the State legislature, according to the legislative procedure for enacting a law. There are several Articles in the Constitution where the expression \"law\" with reference to the authority to make law has been used. These are Articles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression \"law\" :here means law made by tile legislature in accordance with its ordinary legislative procedure. The expression \"law\" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custotp or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in Article\n\n368. In Article 13 the term \"law\" has been used in a wide sense. For this a definition was given in Article 13(3) to include certain other categories. The definition in Articl'e 13(3) is expressly limited for Article 13. Law in Article 31 C mus\\ have the same meaning as it ha' in other Articles generally, namely,· a statute passed by the legislature.\n\nIt is true that such law may need details to be filled up by other agencies but the essential elements of Article 31 C must be supplied directly by tht enactment. A question arose with reference to ArticLe 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone .could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority.\n\n(See Ch. Tika Ramji & Ors. Etc. v. The State of Uttar Pradesh & Ors.\n\n1956 S.C.R. 393).\n\nKESAVANANDA ti. KERALA (Ray, J.) 451\n\nArticle 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology In both the Articles are\n\nesentially identilical. The legislative efforts to implement Directive Principles in Article 39(b) and ( c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a wholi: from those provisions. The true relationship bot ween Directive PrinCiples in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case ( 1965) 1 S.C.R. 933 it was said that \"the rights of society are made paramount and they are placed above those of the individual\", In the Biluu- Land Reforms case 1952 S.C.R. 889 it was said that \"a fresh outlook which placed the general 'intera>t of the community abo\\'e the interest of the individuals, pervades over Constitution\".\n\nLaw contemplated in Article 31C will operate on the ownership and control of the material resources of the community to be distri butcd as best to subservc the common good. The operation of the economic system should not result in concentration of wealth. Means of production should not be used to the common d'etriment. The owl)ership and control of the material resources of the community cn be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of contron on the pr<>- duction, supply and distributions of products of key industries and essential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43; List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27.\n\nThe provisions in Article 3!C that no law contairiing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy was quest.toned by the petitioner to exclude judicial review and, there fore, to be illegal. Article 3!C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the\n\ntegrity of India. Thirdly, Article 31C was said ro delegate the amending power to State legislatures or Parliament in its ordinary legislative capacity.\n\nThe declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39(b) or (c). Such a declaration in a law shall not be called in question on the ground that it does not give effect to such policy. The laws which receive protection under Articll: 31C are laws for securing the Directive Principles of Articles 39(b) and (c). The nexus or connection between.\n\n452 SUPUMll COUllT DPOITS [1973] Supp. s.c.a.\n\nthe law and the objectives set out in Article 39(b) and ( c) is a condition precedent for the applicability of .Article 31C. On behalf of the\n\nUnion and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in a Court of law . on the gtOtilJ.d that it docs not give effect to such policy is to leave legislative pol'icy and wisdom to the legislature. The legislative measure. might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating thcir policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excll.i.ded from judicial review by the declaration.\n\nIn order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nus of the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus between the legislation and the objectives and principks mentioned in Article 39(b) and ( c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstance1 warrant such a course.\n\nThe reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature dnd the Innate good sense of the co:nmunity. The second safeguard is the President's assent. The third safeguard is that in appropriate cases i~ can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is no better safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irrcsponsibitity can be\n\nascribed or attributed !IO the representatives of the people. The citclution of Al'tlicle 14 is to evolve new principles of equality in the light. of Directive Principles. The exclusion of Article 19 is on the footing that laws which arc to g'ivc effect to Directive Principles will coristitutc\n\nreasonable restrictions on the individual'$ liberty. The exclusion' of Article 31 (2) is to introduce the consideration of social justice in the matter of acqwsition. Directive Principles are not limited to agrarian reforms. Directive Principles arc necessary £or the uplift and growth of industry in the counuy.\n\nArticle 31(4) and 31(6) speak of cerrain class of laws not.being called in question on the ground of contravention of Article 31(2).\n\nArticle 31A relates to law of the class mentioned therein not to be\n\nJWAVANANDA I/, DL\\LA (Rlry, J,)\n\n4S3\n\nToid on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31.\n\nArticle 15(4) states that nothing in Article 15 or in Article 29(2) shall _prevent the State from making any special provision for the adv-.mcement of any socially and cducatio1ially backward classes ot citizens or for the Scheduled Castes and the Scheduled Tribes. Article 31 (5) (b) (ii) states that nothing in Arrick 31 (2) shall affect the provisions of any\n\nlaw which the State may make for the promotion of public health.\n\nArticle 33 speak! of law with regard to members of the Armed Forces charged with the maintcllaJlce of public order, so as to ensure the J?lopcr discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.\n\nThe Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is 5imilar t(l laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article\n\n33. Each of these Articles carves out an exception to some Article or\n\nArticles conferring fundamental rights. The field carved out by the various Articles arc of diiierent dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is\n\nll•rong to say that the Constitution delegates power of amendment to Parliament or the States. As a resuht of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.\n\nArticle 31C substantially operates in the same manner in the industrial sphere as Article 3!A operates in the agrarian sphere. The problems ; ve similar In nature though of different magnitude. The constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 3!C as an application of the principles underlying Articles 31 ( 4) and 31 ( 6) and Article 31A to the sphere of industry.\n\nA class of legislation can be identifiod and the legislative field can be carved out from the operation of fundamental rightS or some of those can.be excluded by a provision of the Constitution. Articles 31(4) and 31 ( 6) identify the laws with reference to the period during which they were made. Article 31(4) relates to a bill pending at the commencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assont of the Presi- <lent to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more tlhan 18 months from the commencement of the Constitution to be submittod to the President for his certification and upon certification by the President not to be called in question on the ground of contra-\n\n454 SUPRE?.(E COURT REPOllTS. [1973] Supp. S.C.ll,\n\nvention of Article 31(2). Articles 31(2) and 31A identify the legislative field with reference to the subject matter of law. Articles 15(4) and 33 and Article 31 (5) (b) (ii) identify laws with reference to the objective of the legisliature. The excepdons to some part or some Articles of Part III of the Constitution is created by the Constirution and any bw which is made pursuanv to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Coiwitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in ParU III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State undor Article 31C. Therefore, there is no delegation of amending powers. There is no amendment of any constitutional provision by such law.\n\nThe Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part IIJ for the laws; of the kind mentioned in that Article. Article 31B restrospectivcly validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution Fmt Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till clections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intent'ion of the framers of the Constitution as stated in Articles 31(4) and31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed tlJ stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31 (2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms ease this Court •aid that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute.\n\nThis Court in State of West Bengal v. Eda Baneriee 1954 S.C.R. 558 held that the word \"compensation\" means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v.\n\nSho/11pur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down\n\n' •\n\n• r '\n\nKESAVANANDA ti. KE1lALA (Ray, J.)\n\nthe Jaw for taking over the managemem of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the Jaw was .held to bc void. The Constitution Fourth Amendment Act 1955 came to remedy the 'implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of compensation non-justiciable and the other .was to amend Article 31A.\n\nThe formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31 (2) was adopted with regard to adequacy of compensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth. Schedule. The 17th Amendment Act made changes in Article 31A(l) and the proviso and amended Scliedule 9 by inserting new ,\\cts therein. ·\n\nThe successive amendments of the Constitution merely carried out the principle embodied in Article 31 clauses (4) and (6) tliat legislation deigned to secure the public good and to . implement the Directives under Article 39(b) and (c) should have priority over individual: rights and that therefore fundamental rights were to lie subordtnate- !o Directive or State Policy.\n\nArticle 31 (2) as it onginally stood spoke of compensation for acquisition or requisition of property. The meaning given to compen sation by the Court was full market value. There was no scope for giving effect to the word \"compensation\". Thore was no flexibility of s0cial interest in Article .31(2). Every concept of social interest became irrelevantt by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principks are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content opera6ng in a flexible manner. That is why in the 25th Amendment Article 31 (2) is amended to eliminate the concept of market value for property which is acquired or requisitioned.\n\nIf compensation means an amount determined on principles of social justice there will be general armony between Part Ill and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or. to receive full price, while the concept of property right in Part IV is concf1tioned by social interest and social }ustice. There would be an inherent conflict in working out the Directive Principles of-Part IV.with the guarantee in Part Ill. That is why clauses (4) and\n\n\\6) of Artie!~ JJ illUstrate the vital principle that to make effective a\n\n456 ~UPllME couaT UP011TS [1973] Supp. s.cJt.\n\nlegislative effort to bring about changes in accordance with Directive\n\nPrinciple~ particularly those containro in Article 39(b) and ( c) Article 31 (2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may .have to be limited.\n\nJust as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice. Amount is fixed or the principles arc specified by the norm of social justice in accordance with Directive Principles.\n\nIn amending Article 31(2) under the 25th Amendment by substituting the word \"amount\" for \"compensadon\" the amount fixed is made non-justiciable and the jurisdiction of the Court is cxdudcd because no reasons for fixing such amount would or need appear in the legislation. If any person aggrieved by the amount fixed challenges the Court can neither go into the question of adequacy nor as to how the amount is fixed. If adequacy cannot be questioned any attempt to find out as to why the particular amount is fixed or how that amount has been fixed by law will be examining the adequacy which is forbidden as the constitutional mandate. If one alkges that the amount is illusory one will meet the insurmountable constitutional prohibition that the adequacy or the alleged arbitrariness of the amount fixed is not within the area of challenge in courts.\n\nThe amount fixed is not justiciable. The adequacy cannot! be qucs- \\ tioned. The correctness of the amount cannot be cha1lengcd. The principles specified are not justiciable.\n\nIf on the other hand, the legislature does not fix the amount but\n\npecifics the principles for determining the amount, the contention that principles for .determining the amount must not be irrelevant loses all force because the result determining the amount by applying the specified principles cannot be challenged on the ground of inadequacy.\n\nIf principles are specified for determin'ing the amount and as a result of the application of the principles the result is less thaa the market value it will result in the same question of challenging adequacy.\n\nThe reltvancy of the principles cannot be impugned. Nor can the reasonableness of the principles be impeached. i\n\nl Article 14 has the flexibility of classification. Article 19 has the ! flexibility of reasonable restrictions. Social justice will determine the\n\n/ nature of the individual right and also the restriction on 111ch right,\n\nKESAVANANDA V. llAALA (Ray, J.) 457\n\nSocial justlce will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cut down to give effect to the principles of social\n\njustice. Social justice means various concepts which are evolved in the Direct'ive Principles of the State ..\n\nThe 25th Amendment ha• amended Article 31 (2) and also introduced Article 31(2B) in. order to achieve r.Vo objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the propeny. The second is ro exclude in clause (2B) of Article 31 the applicability of Article 19(1) (f).\n\nArticles 31A and 31B applied to acquisition a.i.d requiswon of property. The purpose of Article 31C is to confer by constitutional mandate power on Parliament and State to make laws foe giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Parr IV an<1 Part III of the Constitution.\n\nWith reference to land legislation subordination of fundamental right• of individual to tho common good was dear in clause!l ( 4) and ( 6) of Arllicle 31. It was made clearer by the Constitution First Amendment Act whkh introduced Articles 31A, 31B and Schedule 9.\n\nArti<le• 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restrictions on legislative powe.r impo'1Cd by Articles 14, 19 and 31. In enacting clauses (b), (c) and (d) in Article 31A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less v_ital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule\n\n9 by retrospectively removing all invalidity from the law because of . the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects ci great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31 (2) in respect of land legislation considered essential for public good.\n\nState legislatures cannot remove the fetter. They have no power to amend the Constitution. Parliament cannot remove the fetter by\n\nordinary law. By amendment of the Constitution Parliament can re-\n\n.45g SUPREME COURT REpOJlTS (1973] Supp. s.c.11 .\n\n. mo\"e the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter.\n\nThe pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C i; best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case ond of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case \"Articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Article 13 read wiith other relevant Artlicles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament could not validate the law which it has no power to enact. The proposition holds good whether the validity of the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it.\n\nBut to make law, which contravenes the Constitution, constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament\". Wanchoo, J. said of Article 31B \"The laws had already been passed by the State legislature and it was their constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule .... .. .. .. . .. .. .. .. .. . Parliament alone could do it under Article 368 and there was no need for any ratificat:lon under the proviso for amendment of Part III is not entrenched in the proviso\".\n\nThe conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part lII in respect of a law under Article 31 C there is no delegation of power to any legislature. There is only removal of restriction on leg1$lative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Arlticle 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to section 6(3) of the Land Acquisition Act'1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a com- pany as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31(5) it is provided that nothing in clause (2) shall effect (a) the provisions of any existing law other than a law to which the prov:isions of clause (6) applv and since the Land Acquisition Act 1894 is an existing law the condnsive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay & Others. (1961)· 1 S.C.R. 128.\n\nKES.WAN .. NIM :v. KERALA (Ray, J:) 459\n\nThe same view was reiterated bv this Court in Smt. Somavanti & Ori.\n\nv. 'The State of P'uniab & Ors. -(1963) 2 S.C.R. 774 that a declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for a public purpos(.\n\nConclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that the legislative power carries with it the power to provide for conclusive proof so as to oust the jurisdiction of a Court.\n\nThe declaration is for the purpose of excluding the process ofevaluation of legislation on a consideration of the virtues and defects with a view to seeing if the -laws has led to the result Intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles In Article 39(b) and ( c) the Court can go into the question for the purpose of process of identification of the legislative measure on a consideration of •the scope and object and pith and substance of the legislation. Therefore, the 25th Amndment\n\nis valid.\n\nA contention was advanced on beha1f of, the petitioner that Article 31B applies to agrarian reforms or in the alternative f>-rticle 31B is linked to Article 31A and is to be read as applying to laws in resptct of five ubject matters mentioned in Article 31A. The 13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with eotatcs and agrarian reforms. There is nothing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not_ be restricted in 'its application by reason of anything contained in Article 31B and are not in any way calculated to restrict the applkation of the latter Article or of the enactments referred to therein to acquisition of estates.\n\nIn Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative otf Article 31A and as the latter -was limited in is applicaion to estates as defined therein Article 31B was als0 similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31 A and is .not illustrative of Article 31A but stands independrnt of it.\n\nAgain, in Jeeiibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contendeJ that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same construction a~\n\nput upon Article . 31B should apply to Article 31A. This Court did\n\n460 SUPIU!ME COURT IU!POllTS [ 1973] Supp. s.c.11.\n\nnot accept the argument. It was said that the words \"without prejudice to the generality of the provisions cont.tined in Article 31A\" indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31A, Article 31B would be redundant. Some of the Acts mentioned in the Ninth Schedule, namoly, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Article 31A(2) of the Constitution. It\n\nwas, therefore, held in fee; ibhoy case that Article 31B was a constitutional device to place the specific statute beyond any attack oo the ground that they infringe Part III of the Con.stirution.\n\nThe words \"without prejudice to the generality of the: provisions contained in Article 31A\" occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they illfringe Part III of the Con•titution. Article 31B need not relate to any particular type of legislation. Article 3IB gives a mandate and complete protection from the challenge of fundamental rights to the\n\nScheduled Ac~ and the Regulations. Article 31A protects laws in re.- pect of live subject matters from the chall; engc cl. Arficks 14, 19 and 31, but not retrospectively. Article 31B protects Schcdukd Acts and the Regulations and none of the Scheduled Acts arc deemed to be void or even to-have become void on the ground cl. contravention of any fundamental right.\n\nThe validity of the Constitution 29th Amendment Act lies withia a narrow compass. Article 31B has been held by this Court to be a\n\nvalid amendment. Article 31B has also been held by this Court to be an independent provisiol\\. Article 31B has no connection with Article 31A. The Bihar Lan_d Reforms case and feejibhoy casi: arc. wdl scttleil authorities for that proposition. It, therefore, follows that Mr. Palkhivala 's contention cannot be accepted that before the Acts can be included in the Ninth Schedule requirements of Article 31A are -to be complied with. '\n\nFor the foregoing reasons these arc the conclusioll5.\n\nFirst, the power to amend the Constitution is located in Article\n\n368. Second, neither; the Constitution nor an amendment of the Cons\n\ntitution can be or is law within the meaning of Article 13. Law ia Article 13 means laws enacted by the legislature subject to the provision of the Constirution. Law in Articf.e 13(2) does not mean the Constitution. The Constirution is the supreme law. Third, an amendment of the Constution is an exercise of the constituent power. The\n\nKESAVANANDA V. KEllALA (Ra;', J.) 461\n\nma1onty view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essenital features of the Constiitution to raise any impediment to amendment . of alleged essential features.\n\nParliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The contention of Mr.\n\nPalkhivala that unlimited power of amendment would confer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does not mean mere abrogation or wholesale repeal of the Constitullion. The Attorney General and Mr. Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution ca.nnot have a vital growth it needs must wither. That is why it was stressed on behalf of the respondents that orderly and peaceful changes in a constitutional manner would absorb all amendments to all provisions of the Constitution which in the end would be \"an amendment of this Constitution\".\n\nThe 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject matter of judicial review.\n\nThe amendment of Article 31(2B) Is valid. Artic!ie 31(2) is self contained and Articles 31(2) and 19(l)(f) are mutually exclusive. Amendment of fundamental right prior to the amendment was and is now after the 24th Amendment valid. Article 31C does not ddegate or confer any power on the State legislature to amend the Constitution. Article 31 C merely removes the restrictions of Part III from any legislation giving effect to Directive Principles under Article 39(b) and ( c). The power of Parliament and of State legislatures to legislate on the class of legislation covered by Article 31C is rendered immune from Articles 14, 19 and 31.\n\nThe inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid.\n\nArticle 31B is independent of Article 31A.\n\nIn the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its own costs. The petitlions will be placed before the Constitution Bench for disposal in accordance with law.\n\n30-36-S. C. India/73\n\n462 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\n}AGANMOHAN REDoY, J.-The detailed contentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief Ju,.tice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the conclusions arrived at by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital constitutional issues having a farrcaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.\n\nIn this case the validity of the Con.otitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972 has been chalU:nged as being outside the scope of the power of amendment conferred on Parliament by Art. 368 of the Constitution and consequently void.\n\nThe validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Art. 13 and Art. 368, and two words, one in each article, namely, 'law' in the former, and 'amendment' in the latter. For the purposes of ascertaining the true intent and scope of these articles in /. C. Golakn11th and others v. Stau of Punjab,(') the basic question which the Court first considered was, where was power to amend the Constitution of India to be found?\n\nSubba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shel at and Vaidialingam, JJ ., concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Arts. 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah, J., as he then was, in his concurring judgment held that the procedure of amendment, if it can be called a power at all, is a legislative power, but it is sui generi1 and outside the three Lists of the Constitution, and 'that Art. 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that the Article gives power to no particular person or persons. All the named authorities have to act according to the letter of the Article to achieve the result.\n\nWanchoo, J. as he then was, for himself and two other Judges, Bachawat and Ramaswami, JJ., found the power in Art. 368 itself and not in Arts. 245, 246 and 248 read with Entry 97 of LiSt I.\n\nIt therefore, contended by the learned Advocate-General of Maharashtra, firstly, that the finding in the leading majority judgment\n\n(') {1967) 2 s.c.R. 702.\n\nKESAVANANDA v. KERALA (fi:zganmohan Reddy, J.) 463\n\nthat the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Art. 248 read with Entry '17 of List I of Schedule VII. This finding is deprived of its foundation, since six Judges held that the amending power is not to be found in the residuary Article arul Entry '17 of List I. Secondly, the\n\nconclusion that the fundamental rights cannot be amended was reached . by the leading majority judgment on the basis that Article 13(2) was attracted by the opening words of Art. 245 arul, therefore, a law amending the Constitution under entry '17 of List I was a law referred to in Art. 245, and as it was in conflict with Art 13(2) the law was void.\n\nIt is again contended that this conclusion loses its validity once its basis is destroyed by five Judges holding that the amending power is not to be found in entry '17 of List I, but in Art. 368. In view of the conclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was contained in Art 368 itself, he submits that there is no ratio binding on this Court unless it be that the power of amendment is not in the residuary article but in Art. 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Art. 368 or in the residuary entry '17 of List I of Sch. VII, the controversy was whether an amendment made under Art. 368 is a 'law' within the meaning of Art. 13(2), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part Ill of the Constitution. That question being answered in the\n\naffirmative by the majority, the ratio of Golaknath's decision is that an amendment under Art. 368 is a 'law' within the meaning of Art. 13(2).\n\nWhat the leading majority judgment in that case did not decide, however, is whether Art. 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, \"In the vw we have taken on the scope of Art. 368 vis-a-vis the fundamental rights, it is also unnecessary to expre\"' our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Art. 368.\" While five Judges who were in minority held that each and every article of the Constitution could be amended in exercise of the power under, and by following the procedure in, Art. 368, Hidayatullah, J., held that by <1mending. Art. 368, Parliament could not do indirectly what it could not do directly, namely, amend Art. 13(2) or override the provisions thereunder, because as he said, \"The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Art. 368.\n\nThat too becaU6C the Constitution has made them fundamental.\" ' (Sec p. 878). There is, therefore, warrant for the submission that Golaknath's case is not determinatirve of the question now raised before this Court as to whether the power to amend Art. 368 could be exercised to\n\n464 SUPREME COURT REPORTS [1973] Supp. s.c.a.\n\namend the fundamental rights in Part IIL At any rate, five of the six Judges who expres, sed an opinion on this aspect support the proposition that this can be done.\n\nIt was a:lso submitted that no question in fact arose for decision in Golaknath's case that in future Parliament could not amend the fundamental rights, because what that case was concerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the ob9Crvations in the majority judgments of Subba Rao, C.J., and Hidayatullah, J., as he then was, about the future exercise of , that power are clearly obiter.· It may be pointed out that the majority judgment as well as the minority judgment concurred . in dismissing the petition, the former on the ground that the First, Fourth and Seventeenth Amendments were not affected either on the basis of the doctrine of proopective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Art. 368. On this basis -it is submitted that no ratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights . which is binding on this Court nor can it amend the amending article to take away or abridge fundamental rights.\n\nWhether the First, Fourth and Seventeenth Amendments have been rightly held to be valiid or not, the ratio of the decision as was observed ear lier is that under Art. 368 as it was before' its amendment, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this Court comes to the conclusion, following Hidayatulfithi J:s, decision, that Parliament cannot amend Art. 368 under proviso (e) thereof to take away or abridge any of tlie fundamental rights or. to amend Art. 13(2) making it subject to an amendment under Art. 368. If such a power exists, the question whether an amendment\"in Art. 368 is a 'law' within the meaning of Art. 13(2) may not prima facie be of significance.\n\nThere are, however, two aspects to this problem, firstly, wMthtr 'law' in Art. 13(2) inch!des an amendment of the Constitution unddr\n\nArt. 368; and secondly, if this Court holds that 'law' in Art. 13(2) docs not include an amendment under Art. 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not .granted• under that Article 1 In other words, arc there any limitation& ID the amending power under Art. 368 ? If, as was hel'd by Hidayatullllh,. J that the power of amendment conferred on Parliament under Art. 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is 'law' within the meaning d Art. 13(2); then Parliament cannot do indirectly what it cannot do directly.\n\nKl!SAVANANDA v. XERALA (f'lignmohan Reddy, J.) 465\n\nThe first question which wov :J arise for decision is what d<les 'law' in Art. 13(2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Art. 368, and if it docs, whether it is subject to any limitations, and if so, what ? It is contended that the word 'law' in Art. 13(2) not only includes ordinary legislative law, but also constitutional law.\n\nIt may not, in my view, be necessary to examine the submission, that an amendment under Art. 368 is not made in exercise of the constituent power but has been made by :i constient body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible conclusion that Art. 13(2) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Con.mtution under Art 368 which no doubt is also a law in its generic sense, as indeed was the view taken in Sankari PrasaJ Singh Deo. v. Union of India and State of Bihar(1), Saiian Singh v. State of Raiasthan(') and Golaknath's case by some of the learned Judges. The framers of the Constitution have defined \"law\" in .!Ulxlausc (a) of clause (3) of Art. 13 and that this definition would on the first impression appear to apply to only clause (2) of that Article. But it would also, having regard to the words \"unless the context otherwise requires\", apply to clause (1) thereof. While the expression \"laws in force\" has been defined in sulxlaWIC (b) of clause\n\n(3) for the purposes of clause (1) as including laws passed or made by Legislatures or other competent authorities before the commencement of the Constitution, an Ordinance, a bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law saved by Art. 372 would, by virtue of sub-clause (a) of clause (3), equally apply to clause (1) of Art. 13.\n\nAgain, though sulxlausc (a) of clause (3) contains an inclusive definition of the word 'law' and docs not specifically refer to a law made by Parliament or the Legislatures of States, lt cannot be, nor has it been denied, that laws made by thetn arc laws witrun the meaning of Art. 13 (2). What is contended, however, is that it also includes an amendment of the Constitution or constitutional laws. No elaborate reasoning is necessary \\n support of the proposition that the word \"law\" in Art. 13\n\n(2) includes a law made by Parliament or a Legislature of the State.\n\nWhen an Ordinance made either by the President under Art. 123 or by a Governor under Art. 213, in exercise of his legislative power which under the respective sulxlause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Art. 13(3) (a), a law passed by Parliament or a Legislature of a State under Art. 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State\n\n( 1) [1952] S.C.R. 89.\n\n\n466 SUPREME COU!lT ~PORTS ( 1973 j Supp. S.C.R.\n\nfor the whole or any part of a State, would be equally included within the definition of \"law\". Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and fur. ther provides under Art. 248(1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists.\n\nWhereas Art. 13(3)(a) has sepcifically included within the definition of 'law', custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Art. 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is consider ed as a constituent power or as a constituted power, the omis1ion to include it specifically would, lt is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the em. bargo in Art. 13(2) to an amendment under Art. 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of 'law' in Article 13(3), they did not think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Leg:islature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article.\n\nIt may be necessary first to examine whether in the context of the inclusive definition of 'law', and not forgetting that an amendment under Art. 368 could also be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the Jaw made by Parliament or a Legislature of the State and to those indicated in Art. 13(3) (a). The law referred to i!n Art. 14, clauses (3) and (5) of Art. 16, Art .. 17, clauses (2) to (6) of Art. 19, Art. 20, Art 21, clauses (4) and (7) of Art. 22, clause (1) of Art. 23, dause (2) of Art. 25, Art. 31, clause (3) of Art. 32; Arts. 33, 34 and clawe (a) of Art. 35, is, in my view, a law\n\nK£SAVANANDA v. KERALA (faganmohan Reddy, J.) 467\n\nwhich the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits arc indicated therein. Further under Art. 15 the words 'special provision' and in clau, ge ( 4) of Art. 16 the making qi any provision by the State, and clause (2) of Art. 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Art. 28, clause (2) of Art. 29 and clause (2) of Art. 30 can either be by an ordinary legislative law or by an order or notitl\\cation issued by the Government which may or may not be under any law but may be in the exerci.lc of a purely executive power of the Government of India or the Government of a State having the force of law.\n\nEven where reasonable restrictions are permitted as in clauses (2) to ( 6) of Art. 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Art. 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that reregard. Article 35, it may be noticed, begins with a non obstante clause, \"Notwithstanding anything in this Constitutwn -\n\n(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws ...... \". This non obstante clause ha. the effect of conferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would not have otherwise had, because some of the powers were exercisable by rhe State Legislatures. Hidyatullah, J., however, thought that the opening words in Art. 35 were more than the non obstante clause and excluded Art. 368 - a conclusion based on comparison of that Article With Art. 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth(1 ) had held that it was an exception to section 128 (See Golaknath's case at p. 902). Wynes, however, did not agree with this view of the High Court of Australia: -See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree.\n\nIn my view it w unsafe to rely on' cases which arise under other Constitutions. Apart from this, Art. 35 is not in pari materia with Art. 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, nor is there anything in the subject-matter of Art. 35 tQ safeguard it from being amended under Art. 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment tinder Art. 368.\n\n(1) 36 C.L.R. 155.\n\n468 SUPREME COURT llEPOl!.TS (1973] Supp. S.C.P..\n\nIt is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is • conferred on the citizen, to what extent the right can be restricted, or where a State is\n\nprohibid from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima fade be against the\n\nState making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Art. 13\n\n(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Art. 368 in which there is no reference to a law, by including within the ambit of the definition of 'law' in Art. 13 (3) (a) for purposes of Article 13(2), an :amendment effected under Art. 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Art. 13(2) applicable to it by mere implication, when in respect d minor instruments they were careful enough to include them in the definition of 'law'.\n\nWhile thi6 is so, a consideration of the conspectus of various rights in Part III when read with Art. 13(2) would, in my view, prohibit the\n\ntaking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a St:ate, or by executive action. This conclusion of mine will be substantiated if Art. 13(2) is Tead along with each of the Articles in Part III, in so far as any of them contain the word 'law' which indeed it can be so read. The object of incorporating Art. 13(2) was to avoid its repetition in each of the Artides conferring fundamental rights. Only one instance of this may be\n\ngiven in support of my conclusion. Clauses (2) to ( 6) of Article l 9 which are limitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word 'law' in both Article 13(2) and clauses (2) to ( 6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of clause (1) of Article 19 and clause (2) of that Article, if so read with Article 13(2) of the Constitution as it stood on January 26, 1950, may be redrafted as under :\n\n\"19(1). All citizens shall have the right-\n\n( a) to freedom of speech and expression ;\n\nKESAVANANDA v. KERALA (Jaganmohan Reddy,, J.) 469\n\n(2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void:\n\nProvided that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, tends to overthrow, the State\".\n\nClause (2) in the above draft incorporates the entire clause (2) of Article 79 except that instead of Part III the word 'article' has been used, and clause (2) of Article 19 has been incorporated as a proviso.\n\nIn the alternative, if cl:mses (2) to ( 6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows :\n\n\"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void :\n\nPrevided nothing in sub-clause (a) of clause ( 1) of Article 19 shall affect the operation of any existing 1aw in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State\".\n\nIn each of the clauses (3) to (6) of Article 19 the expre.s.sion 'any existing law in so far as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos iust in the same way as clause (2) of Article 19 has been read in either of the manner indicated above, the word 'law' in all these clauses as well as in clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words .'Jaw', 'in accordance with law', or 'authority of law' clearly indicate that 'law' in Article 13(2) that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar <onclusion.\n\n4 70 SUPREME COURT REPORTS [ 1973] Supp. s.c.tt ...\n\nThough the word 'State' has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, iin the context oc the restrictions or limitations that may be imposed by law on certal.tt specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the. Legislature otherwise than by amendment of the Constitution. or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the ward 'State' in Article 12 read with Article 13(2) would prohibi~ the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging 9f taking away any of the rights conferred by Part III or in amending Article 13{2) iiuelf. In this. con nection Hidayatullah, J., in Golaknath's case at p. 865 - read the definition of the word 'State' in Article 12 as connoting, \"the sum total of all the agencies which are also indi.vidually mentioned in Article.12\", and hence, \"by the definition all the parts severally are also included 'in the prohibition\". In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Arti-- cle 368 (1) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13(2).\n\nAt p. 866 this is what he said: \"If the State wields more power than the functionaries there must be a difference between the State and its agencies soch as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State m= more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly -stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the Council of States introduces a Bill for the abridgetnent of the Fundamental rights, it ignores the injunction agains~ it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression \"Government of India\" in the General Clauses Act means the President of India. This is equally tme of ordinary laws and laws seek'ing to amend the Constitution\" ..\n\nHe drew support from Article 325 of th~ Constitution of Nicargua in which specifically it was stated that, \"That agencies of the Government,. jointly or separately, are forbidden to suspend the Constitution or torestrict the rights granted by it:, \"except in the ca<es 'provided therein\".\n\nIn our Constitution he observed, \"the agencies of the State are controlled .jointly and separately and the prohib&ion is againsi' the whole forc:e of\n\nthe State acting either in its executive or legislative capacity\". With t •\n\nKESAVANANDA ti. KEllALA (laganmohan Reddy, J.) 471\n\n:great respect this argwnent is based on an assumption which is not warranted by the definntion of the word 'State' in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution wlu.ch is differently worded. The assumption that 'State' would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is not justified. The proliibition in Article 13(2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means \"more than any of them or all of them put together\" which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is en joined that the State shall endeavour to promote international peace and security; or maintain just and honourable relations between nations, etc., which in the context, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vescs the power of legislation in respect of \"foreign affairs, all matters which bring the Union into relation with the foreign countries\" in those agencies. The words 'unless the context otherwise requires', in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Consti\n\ntution would show tha~ the definition, of the State is not an inclusive definition, but it defines the State as meaning the sevecil organs referred therein. I do not, therefore, think that reasoning would indicate that Article 13(2) puts an embargo on an amendment made under Article 368, nor does it warrant the making of a distinction between the State .and the Government in .order to hold that these organs cannot acting together make an amendment affecting rights in Part III.\n\nAnother reason for arriving at this conclusion is that if amendment to the Constitution is a 'law', the Constitution as such would also be a law. But the framers of th~ Constitution distinguished the 'Constitu\n\ntion' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby t:hat the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct frou:; i it.\n\nIn Article 60 the President, and in Article 159 the Governor, IS reqmred to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Artide 61 the President can only be impeached for the violation of the Constitution. While specifying the extent oi: the executive poWer in sub-clauses (a) and (b) of clause (1) of Article 73 it is provided by the proviso that the power referred to in\n\n472 .\n\nSUPREME COURT REPOl\\TS (1973] Supp. s.c.R.\n\nsub-clause (a) shall not, save as expmsly provided in this Constitution -or in any Jaw made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also P<JWer to make laws. Here the words 'law' and 'laws' are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75 ( 1) is set out in Sche dule III; that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the C iJnstitution and the laws : see Articles J24(6) an<I 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to discharge the function conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148(5) dealing with the conditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this\n\nConstitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. 'The Constitution, however, was not so described except where it is intended to be emphasised that it had the force of law as envisaged by the words 'as by law established'.\n\nIf this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13(2) is really redundant, and should the Court so construe It as to impute to the framers an intention to incorporate something which has no purpose. The Court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law.\n\nIn support of this line of reasoning it is contended that in so far as Article 13(1) is concerned, 'a law in force' has been defined in Article 13(3)(b), but by virtue of Article 372(1) and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is \"'subject to the other provisions\" of the Constitution and consequently to the provisions in Part III. Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the pctitione1., learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor.\n\nGeneral had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April,\n\nKESAVANANDA \"· KERALA Uaganmohan Reddy, J.) 473\n\n1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar , Vallabhbhai Patel said was that they had not\n\nuflicient time to examine in detail the effect of clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws whicli will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debat~ to indicate that certain constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13( I) was specially designed to save pre-existing constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any of the ordinary legislative faw subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no inditation whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co.exist with them in the sense that they can only be dealt wi.th by ah amendment under Article 368. Kania, C.J. in A. K. Gopalan's case had no doubt pointed out that, the inclusion of Article 13(1) & (2) appear to be. \"a matter of abundant caution\", and that, \"Even in their absence if any of the fundamental rights was \"infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent it transgresses the limits, invalid\". Hidayatullah, J., as he then was, in Saiian Singh's case at p. %1commenting on the above passage of Kania, C.J., pointed out that, The observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Art. 13 the learned Chief Justice meant rather to emphasise the importance and the commanding\n\ntion of Fundamental Rights in that even without Art. 13 they would have the same effect on other Jaws. To hold that Art. 13 framed merely by way of abundant caution, and serves no additional or intrinsic function f its own, might, by analogy persuade us to say the same of Arti. - de 32(1) because this Court would do its duty under Art. 32(2) even in the absence of the guarantee. No one can deny that Art. 13(2) ha. a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, beeause having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people\n\n4 7 4 SUPREME COURT REPDRTS ( 1973 j Supp. S.C.R.\n\nof this country that there ar1! some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made .; eJf-contained with the right of redress guaranteed to them by Art. 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review crver the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, -0ur framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy .against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which withou~ that provision would only come before it by way of an appeal under Art. 133 or by special leave under Art. 136. from a decision of the High Court rendered under Art. 226. It is this purpose that Art. 13(2) read with Art. 12 emphasises.\n\nThe framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of jurucial review in America wanted to ensure that the doctrine of void and relatively void- .a typically American concept - should find no place in our Constitution. If as stated in Golaknath' s case by the leading majority judgment and by Hidayatullab, J ., that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against 1'.hat process. I am aware of the contrary argument that if they wanted that he amending process in Art. 368 should not be fettered by Art. 13(2) they would have expressly provided for it either in Art. 368 or in Art. 13(2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding i; itagcs of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived.\n\nBut this is neither here nor there, as indeed if the framers took the view that the embargo in Art. 13(2) is only against legislative law, they may have felt that there w; as no need for any words of limitation which will make i.t inapplicable to Art. 368.\n\nBefore I refer to the proceedings of the Gonstiuent Assembly, I must firliit consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing tho5e provisions.\n\nThe Advocate-General of Maharashtra says until the decision of this Court in H. H. Maharaiadhiraia Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India(' )-commonly known as Privy Purses case -debates and proceedings were held not to be admissible. Nonetheless\n\n( 1 ) (1971) 3 S.C.R. 9.\n\nKESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 475\n\ncounsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add. or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are .said to afford no guide because members who speak in favour or. against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the \"provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, thl:refore, difficult to get a resultant of the views in a debate exci:pt for the ultimate result that a particular provision or its amendment has been adopted or\n\nrejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding ouc the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore\n\nCochin & Ors v. Bombay Company('), the Golaknath's case, the Privy Purses case and Union of India v. H. S. Dhi1lon(2) there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath' s case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are nor admissible except when the meaning was ambiguous or where the meaning was clear for further support of the cooclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and haw they translated that intention? What is the rationale for treating them as forbidden or forbidding material.\n\nThe Court in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which noticing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who\n\n(') (1952) s.c.R.. 113.\n\n(') (1972) 3 S.C.R. 33.\n\n476 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nwanted it to be a national instrument to subserve successive generatioo.s. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B. N. Rau l'O assist it. A memorandum was prepared by Shri B. N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee;\n\n(2) Provincial Powers Committee ; and (3) Committee on the Fundamental llights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection wi:ll be helpful in throwing light on the particular matter in issue. In proceeding11 of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and thrir only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of far'Ces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings arc examined from this point of view, do they throw any light on or support the view taken by me ?\n\nThe various stages of the Constituent Assembly proceedings, while cowidering the draft Articles 8 and 304 corresponding to Arts. 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to cly that the embargo in Art. 13\n\n(2) does not apply to an amendment made under Art. 368. First, Shri K. Santhanam, one of the members of the Constient Assembly moved an amendment on April 29, 1947 to clause (2) of the draft sulr mitted to the Constituent Assembly along with the Inrerim Report on Fundamental Rights. This amendment was that for the words \"nor\n\nKRSAVANANDA ti. KERALA (f<tianmohan Reddy, J.) 477\n\nhall the Union or any unit make any law taking away or abridging any such right'', the following be substituted :\n\n\"Nor shall any such right be taken away or abridged except by an amendment oE the Constitution.\" The sponsor explained \"that if the clause stmds as it is even by an amendment of the. Constitution we shall not be able to change any oE these rights. i£ found unsatisfactory. In some Constitutions they have provided that some Parts oE the Constitution may be changed by future constitutional amendments and other Parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted.\" This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Oause\n\n(2), after it was so amended, was as follows :\n\n\"All existing laws, notifications, regulations, customs or u:; ages in force within the terrirories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent oE such incoency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution.\"\n\nEven as the clause stood originally in the draft, it was only the 'Union' er any 'anit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the 'Union' or 'Union' and 'the unit' being prevented from makiiig a law. In order to justify the submission that all the organs of the State including the 'Uni01i' or the 'Union' and the 'Unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'Union' or any 'Unit'.\n\nThe amendment of Shri Santhanam was inc; orporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft CoGstitution was .submitted to the President of the Constituent Assembly on February 21, 1948, and was given wi<le circulation, there appears t'D have been llOIIle criticism with respect to what had then become draft Art. 8(2), which was in the following tCl1DB :\n\n\"The Stitc shall not make any law which takes awa} or abridges the rights oonferred by this Part and any law made in contravention c/i: this clause shall, to the extent cf the. contravention, be void : 31-36 S.C. India/73\n\n478 SUPREME COURT REPORTS (1973] Supp. s.c.I.\n\nProvided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any ex0011g law.\"\n\nThe note relating to the addition of the proviso is stated thus :\n\n\"The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited.\" ·\n\nThe Constitutional Adviser's note to the Drafting Committee showed that a critic had pointed out that \"clause (2) of article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft artik:le 304, and it should, therefore, be made clear that there is no restriction on the power of Parliament to amend such provisions under article 304.\" The comment of the Constitutional Adviser to this objection was that \"clause (2) of article 8 diies not \"override the provaons of article 304 of the Constitution. The expression \"law\" used in the said clause is intendea to mean \"ordinary legislation\". However, to remove any possible doubt, the following amendment may be made in article 8 : . .\n\n'In the proviso to clause (2) of article 8, after the words \"nothing in this clause all\" the words \"affect the provisions of article 301 of this Constitution. or\" be inserted'. \"\n\nThe Drafting Committee does not appear to have accepted this suggestion, because the proViso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the n= of Mehboob Ali Beg. On November 25, 1948, Pandit I .akshml Kanta Maitra in moving this Amendment said - 'The purpose of this amendment is self-evident, and as I have been s1!rictly enjoined net to make any .speech I simply move this amendment.\" This amendment was adopted on November 29, 1948, and the proviso was delet:cd. (Sec C.A.D. Vol. VII, pp. 611 & 645).\n\nHow meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words \"custom or usage\" in the definition of 'law' in Art. 8(3)(a) (corresponding to Art. 13(3)(a) would apply to Art. 8(2), but the &'ate does not make a 'usage or custom'. Dr. Ambcdkar point:cd out that that will apply to Art. 8(1} which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no w.iser after the explanation given by Dr. Ambcdkar that the definition of law is distributive. Dr. Ambcdkar then said that the amendment of Naziruddin .Ahmed creates some difficulty which it is necessary to clear up and ulti\n\nKESAVANANDA v. KEllALA (\"jaganr.1ohan Reddy, J.) 479\n\nmately to avoid any difficulty he moved an amendment to clause (3) of article 8 to read \"unless the context otherwise requires\" which governed clauses (a) and (b). This wu adopted. (Sec C.AD. Vol. VII, p. 644).\n\nIt was after this that the proviso was deleted.\n\nIt would appear from the proviso before it was deleted, if read with clause (2) of draft Art. 8, as also the note showing the pu~ for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Art. 304, because the proviso was making the restriction in clause (2) of Art. 8 inapplicable to the State from making any law for the removal of any inequality, disparity, di.ladvantage or discr'..mination arising out of any existing law. If the 'State' and the 'lw' have to be given a particular meaning in the proviso the same meaning has to be given to them in clause (2) and since the proviso clearly envisages a legislative law it furnishes clic key to the interpretation of the word 'law' in clause (2) of draft Art. 8 that it is also a legislative Jaw that is therein referred.\n\nTo Art 304 also amendments were moved-one of them, Amendment No. 151 was in the name of Shri K. Santhanam, but he said he was not moving it. (Sec C.A.D. Vol. IX, p. 1643). Both the Attorney- Gcncral as well as the Advocate-General of Mah:arashtra said that they were not able to find out what these amendments were. But even ;:tssuming that this Amendment was designed to make the embargo under Art. 13(2) applicable to Art. 368, no inference can be derived therefrom.\n\nOn the other hand an.attempt Wa.'I made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Art. 304-A after 304 :\n\n\"304-A. Notwithstanding anything contained in this constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this constitution and any amendment which is or is likely to have such an effect sh;\\11 be void and ultra\n\nvires of any Legislature.\"\n\nThis amendment after Dr. Ambedkar' s speech regarding the scope of the amendment under Art. 304 was, by leave, withdrawn. (See\n\nC.A.D. Vol. IX p. 1665).\n\nEarlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T. T. Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Art. 304, but it was pointed out by the constittttional AdV'iscr that tha.11 amendment involved a question of policy. The Drafting Committee did not adopt\n\n480 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nthis amendment.\n\nIf this amendment had been accepted, the amendment of the fundamental rights coukl be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures.\n\nEven this attempt does not give any indication that fundamental rights in Part Ill could not be amended under Art. 368 or that 'law' in Art. 13(2) is not the ordinary legislative law, but would include an amendment under Art. 368.\n\nAn at'1:empt was made to show that on September 17, 1949, Dr.\n\nAmbedkar while speaking on draft Art. 304 had said that Part III was not amendable.\n\nWhile adverting to the fact that they had divided the articles into three caragories, he pointed out that the first! category was amendable by a bare majority, and as to the second category he had said: \"If future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that was necessary for them is to have two-thirds majority.\" The third category for the purposes of amendment he explained required twe>-thirds majority plus ratification. It is submitted on behalf of the first respondent that what '\"as stated about Part Ill being excepted from the second category was a mistake and that he must be thinking that, alonfi with Art. 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mi.l, take for third category. Instead of third category, he either said or is reported to have said, Part III.\n\nWhether it is a correct reading of his speech or not, it is not rekvant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as to the non-amendability of Part III when the Constitution (First Amendment) Bill was debated and later enacted as an Act is not relevant.\n\nIn the view I take on the construction of Art. 13 read with the other provWons of Part Ill, Art. 13(2) does not place an embargo on Art. 368 for amending any of the right in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right-in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Art. 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be considered, but that Art. 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Galaknath's case by five judges and Hidayatullah, J., it may, als.o be noticed that the leading majority judgment did not express any v1~ to whether under tho proviso to Art. 368, by amcndmg that arttdc itself, fundamental nights could be amended. (Sec Subba Rao, C.J., at p. 805).\n\nKESAVANANDA v. KEllALA (faganmohan Reddy, J.) 481\n\nThe question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to . any limitation, and if so, what ? The objects and !reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2\n\nthereof thus :\n\n'\"The Bill seeks to amend Art. 368 suit.ably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368';.\n\nWhat in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendmt was made, arc read in juxtaposition along with a new sub-clause\n\n(4) added to Article 13.\n\nBefore the Amendment .,\\fter the .\\n1endment\n\nProcedure\n\n368. An amendment of this Con Power 368.(1) Notwithstanding for: amend nirution Jnay be initiated only of Parlianything in this Con ment of the Con- .stitution.\n\nby the introduction of a Bill for the purpose in either House of Parliament, and when\n\nhe Bill is pused in each House by a majority of the total membership of the HouSe ancl by a majority of not less than two-thirds of the members ofthat HouJepresent and voting it shall be presented to the\n\nPresident for his assent and upon such assent being given to the bill, the Constitution shall stand amended in accordance with the terms of the Bill.\n\nProvided that if such amendment\n\nseeks to make any change in- ......................................\n\nthe amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that eff'ett oassoetl by thoSe LeJislatures \"before the Bill\n\nament to amend the Constitution and procedure therefor.\n\nstitution Parliament may in exercio;,; ... of t~ con stituent power ainend\n\nby way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid do, vn in this arti<'!C.\n\n(2) .\\n Amendn1ent of this Conatitution 1nay be initiated only by the introduction of n Bill for the purpose in either House of Parlia .. ment, and when the Bill is passed in each House by a n1ajority of the total 1nembership of that House and by a majority of not less\n\nthan t\\vo-thirds Qf the members of that !-louse present' .and voting, it shall be presented to the President who shall give his assent to the\n\n482 SUP11EME COURT 11EPOllTS [1973] Supp. s.c.ll.\n\nmaking provision for such amendment is presented to the President for auent.\n\nBill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill :\n\nProvided that if such amendment sCeks to make any change in- .............................. ~·~ the amendment sbaJ also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for aascnt.\n\n(3) Nothing in article 13 shall apply to any amen•\n\ndment made under this article.\n\n13(4) Nothing in this article shall apply to any amendment of this Constitution made un .. der Article 368.\n\nThe above amendment seeks to provide-(i) that the source of power to amend is in Article 368; (ii) that when Parliament seeks to . make a constitutional amendment it does so \"in exercise of its constituent power\"; (iii) that the power to amend was by way of addition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking away any of the fundamental rights does not apply to any amendment made under Article 368; ( v) that nothing in Article will apply to an amendment of the Constitution under Artick: .368; (vi) that the words \"any provision of the Constitution\" were added 5o that \"any\" were to mean \"every provision\"; and (vii) that it is obligatory on the President to give his assenn to any BHI duly passed under that Article.\n\nIn so far as the contention that Article 13(2) is a bar to constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions.\n\nThe question, however, is whether Art. 13(2) which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article\n\nKESAVANANDA v. KERALA (/aganmohan Reddy, ).) 483\n\n13(3)(a) is or is not an esscntiaU feature. If it is not, it can be amended under Article 368.\n\nRecognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is l'O permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.\n\nThe question whether there are any implied lim'itations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitu tion would depend, as I said earlier, on the meaning of the word \"amendment\" before the Twenty-Fourth Amendment.\n\nIf that _word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words \"amend by way of addicion, variation and repeal\".\n\nIt may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath's case, namely, (i} that the expression 'amendment' in Article 368 has a positive and negative content and that in exercise of that power Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation; (ii) that if the fundamentals would be amendable to the ordinary process of amendment with a special majority the institution of the President can be abolished, the Parliamentary executive can be abrogated, the concept of federation can be obliterated and in shOlt, the sovereign democratic republic can be converted into a\n\ntotatarian system of Government.\n\nThe leading majority judgment, though it found that there was considerable force in the argument, said that they were relieved of the necessity l'O express an opinion on this all important question, but so far as the fundamental rights are concerned, the question raised can be answered on a narrow basis.\n\nSubba Rao, C.J., observed at p. 805: \"This question may arise for consideration only if Parliament seeks to. destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard\".\n\nHidayatullah, J., on the other hand, dealing with implied limitations by reference to Art., V of the United States Constitution, and the decisions rendered thereunder pointed out that although there is no clear pronouncement of the United States Supreme Court a great controversy exists as to whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory power.\n\nAfter considering the view of text-book writers, particularly that of Orfield, and the position under the English\n\n484 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.\n\nand the French Constitutions (see pp. 870-877), he observed at p. 878 : \"It is urged that such approach makes society static and robs the State d its sovereignty. It is submitted that in leaves revolution as the only alternative if change is necessary.\n\nThe whole Constitution is open to amendment.\n\nOnly two dozen articles are outside the reach of Article 368.\n\nThat too because the Constitution has made them fundamental.\n\nWhat is being suggested by the counsel for the State is itself a revolution because as things are that method of amendment is illegal\".\n\nWanchoo, J., reject.ed the doctrine of implied limitations though he was doubtful if the Constitution can be abrogar.ed or another new Constitution can be substituted. (sec p. 838). At p. 836 he said, \"We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under Article 368 and have come to the conclusion that no limitations can be and should be implied upon the power of amendment under Art. 368 .... We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368 ............ on the clear words of Article 368 which provides for a111cndment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise.\" It was further observed at p. 831: \"that the Prcsidti.t can reflL!iC to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogethei; falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article llil\".\n\nBachawat, J., noticed the argument on the basic features but did not express any opinion because he said \"it is sufficient to say that the fundamental rights are within the reach of the amending power\".\n\nRamaswami, J., on the other hand rejected the thesis of impued limitations, because Article 368 does no~ expressly say so.\n\nHe said at p. 933: \"If the Constitution-makers considered that there were certain basic features of the Constitution which were permanent .it is most unlikely that they should not have expressly said in Article 368 that these basic features were not amendable\".\n\nDuring the course of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various countries.\n\nIn support of the rival contentions, there were cited before us innumerable :lecisions of the Supreme Court and the State Courts of the United States of America, and of the Courts in Canada, Ireland, ; Australia and of the Pri1y Council.\n\nA large number of treatise on constitutional law, views of\n\nKESAVANANDA v. KUALA Cfaganmohan Reddy, J.) 485\n\nacademic lawyers, the applicability of natural law or higher law principles, extracts from Laski's Grammar of Politics, history of the .demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional :Parliament during the deliberations on the Constitution (First Amendment) Bill, were also refr.rred tp. The .able arguments addressed to us during these Ion~ hearings, with great industry and erudition and the alacrity with which the doubts exprcs scd by each of us have been sought to be cleared by the learned Advo- .cates for the petitioner, the learned Attorney-General, the learneq Solid tor-General and by the learned Advocates-General of the States and the learned Advocates who intervened in those proceedings, have completely eviscerated the contents of the vital and far reaching 'issues involved in this case, though sometimes some aspects tended to hover over the terra\n\nferma and sometimea skirted rond it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars . arc not often easy of meeting the practical needs and limitations of the tcna_s:ious aspects of the case precedents which makes our law srvi Cable.\n\nThere. have again been arguments for taking consequences in.to consideration. which really highlighted what would be the dir-. consequences if the result of the decision being one way or the other 'but this court ought not to be concerned with these aspects, if other- . wise our decision is in accordance with the view of ehe law it tak:es.\n\nWe should free ourselves of any coflsiderations which tend to create pressures on the mind.\n\nIn our view, it is not the gloom that should influence us, as Milton said, \"we cannot leave the real world for a utopia but instead ordain wisely\", and, if I may add, according to the well-accepted rules of construction and on a true interpretation of the ronstitutional provisions.\n\nLeny arguments on the rules of construction were addressed, by referring particularly to a large number of American cases tci show what our approach should be in determining constitutional matters, having regard to the paramount need to give effect tp the will of the people which the Legislatures and the Governments represent and for -exerci!ling judicial restraint.\n\nI must confess that some of these argu ments show that the tendency has been to depend more on the views of Judges from other lands, however eminent, when we have 'in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no constitutional matter which is not in some way or the other involved with. political, social or -economic questions, and if the Constitution-makers have vested in this\n\n-COurt a power of Judicial review, and while so vesting, have given it\n\na prominent place describing it as the bean and soul of the Constitu-\n\n486 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\n• I - / I ti on, we will not. be deterred from di5charging that dutf, mere! y because the validity or otherwise of the legislation will affect the political or social policy underLying at.\n\nThe basic approach of this Court . has been, and must always be, that the Legislature has the exclusive power to deterinine the policy and to translate it into law, the constitutionality of which is to be presumed, unless there are trong and cogent reasons for holding that it-conflicts with the constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument,· and, therefore, no coun and no Judge will exercise the judicial power de hors that instrument, nor will it function as a supreme legislature above the Constiitutioll. The bona fold of all the three of them has been the basic assumption, and though all of them may . be liable to error, it can be corrected in the. manner and by the methOd prescribed under the Constitution and subject to such limitations as may be inherent in the inStrument . . .\n\nThis Court is not concerned with any political philosophy, nor has it its own philosophy, nor are Judges entitled to write into their judg- . ments the prejudices or prevalrent moral attitudes of the times, except to 'judge the legislation in the light of the felt needs of. the society for which it was enacted and in accordance with the Constitution.\n\nNo dotiht, political or social' policy may dominate the legal system.\n\nIt ;. 'only when as I said, the . Legislatures in giving effect to them translate it into law, and the Courts; when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then become>\n\n:i kgal topic which may tend to dominate 'sometimes to its detriment.\n\n• • r • .\n\nThe citizen whose rights am affected. no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts , have nothing to do with the wisdom or the policy of the Legislature. \\Vhen the Courts declare a law, they do .not mortgage the future with intent to bind the interest of . the unborn generations to come.\n\nThere is no everlasting effect in tho5e judgments, nor do .they havF force t\\11 eternity as it were. The concept, on the other hand. i> that the law declared in the past was in accord with .the seittled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent . gene:ratjons or the requirements and needs of the society as it may be\n\nthen conditioned, they will have to be changed by the process known to law,' either by legisllative action or judicial re-review where that is possible.\n\nThe COuns, therefore, have a duty, and ihave indeed the power, to re-examine and re:state th~ law within the limits' of its interpretative function in the fufuess of. the experience during which it was in force so that it conforms with the socia<conomic changes and\n\nthe jurisprudential outlook of that generation. The words of the law\n\nKESAVANANDA v. KEllALA (Jaganmohan Reddy, J.) 487\n\nmay be like coats of Biblical Joseph, of diverse colours and in the\n\nconxt in which they are used they will have to be 'interpreted and wherever possible they are made to subserve the felt-needs of the society.\n\nThis purpose can hardly be achieved without an amount of resilience and play in the interpretative process.\n\nOn the desirability of drawing heavily or relying on the provisions of the Congtitutions of other countries or on the decisions rendered therein, a word of caution will be nea:ssary.\n\nIt cannot be denied that the provisions of the Constitutions of other countries are designed for the political, social and economic outtlook of the people of those countries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it 1s the nature and the quality of the soil and the climatic conditions prevalent there which will ensure its growth and determine the benefits which it confers on its people. We cannot plant the same seed in a different climate and in a cli:fferent soil and expect the same growth and the same benefit therefrom.\n\nLaw varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing tiherein. The difficulty, ro my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it .is to a large extent the basis in this country, is that they are more often than not concerned with ex\n\npounding and interpreting provisions of law which are not in pari materia with those we are called UJllOn to consider. The problems \\vhich confront those Courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard ag; Mnst the possibiliity of being blinded by it.\n\nAt the very inception of a constitutional democracy with a Federa~ structure innovated under the Government of India Act, 1935, a note of caution was struck bv the Chief Justice of India against following even cases decided on the constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American\n\nConstitution. Gwyer, C.J., in In Re : The Central Provinces and Berar Act No. XIV of 1938,(1) which was the very first case under the 1935 Act, observed at p. 38: \"But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the\n\n( 1) (1939) F.C.R. 18.\n\n488 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nCourt is interpreting; and since no two Constitutions arc in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another.\" This observation was approved and adopted by Gajendrap, dkar, C.J., (speaking for 7 Judges) in Spedal Refemzce 1 of 1964.( ).\n\nThe American decisions which have been copiously cited .before us, were rendered in the context of 'the history of the struggle against colonialism of the A=rican people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used. to pcrsllade this Court to apply their approach in determining the cases aris'ing under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for the benefit of the people and yet for decades those inconvenient decisions were accepted as 1aw by the Government until . the approach of the Court changed. The restraint of the people, the\n\nGovernment and the Court, and tho patience with which the inconveniences, if any, have been borne, have all contributed to the growth of the law and during this long period the Constitution of the United\n\nStates has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by tnc people through their rcprcsentauivcs in the State Lcislaturcs .or in .t?e ovention~, These dccsios,. thc.rcfore, arc of little practical uuhty m illltcrpretmg our Consllttut1on which\n\nhas devised altogether different methods of amendments. No doubt, .the rules of construction which our Courts apply have been drawn from the English decisions and the decisions of tho Privy Coundil, the latter of which declared the law for the country until its jurisdiction was abol, ishcd; and even today the decisions of the Courts .in England, the Com-.\n\nweaLth countries, and the United States of America on matters which are pari materia are considered as persuasive.\n\nFor the proposition that for ascertaining the meaning of the word 'amendment', the object of and the necessity for amendment in a written Constitution must be considered, namely,- ( a) it i& necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra\n\nConstitutional method or by a revolution;\n\n(b) as the very object [s to make cges in the fundamental or organic law, namely, to . change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features.\n\n( 1 ) (1965) I S.C.R. 413 at 487.\n\n• KESAVANAIGA v. KllRALA {faganmohan 'R.etltly' J.) 489-\n\nThe'Attomcy-General has cited from the writings of several author~ of whom I may refer to a few passages from the following :\n\nWoodrow Wilson in his book on 'Constitutional Government' in the United St!ates, said :\n\n\"A constitutional goverlllncnt, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation\" (page 4-6).\n\n\"It is, therefore, peculiarly true of constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. Tho underlying underst'andings of a constitutional system are modified from age to age by chang\".s of life and circumstances. and COITCsponding alterations of opinion. It does not remain fixed in any unchanging furm, but grows with the growth and is altered\n\nwith the change of the nation's needs and purposes\" (page 22).\n\nRer Sherman Hoar in his book on \"Constitutional Convention,_ Their Natlfre, P.wvers and Limitations\", speaking of the American Omstitutfon 11s the one based upon popular sovereignty, says :\n\n''Tho Federal Constitution was ordained and established by the peopk of the Ul!iitcd States\" (U •. S. Constitution, Preamble) and\n\nguarantees to each\" the several li:ates \"a republican form of govo-mncnt\" (U. S. Constitution, Art. IV). This means, in oth\"-\n\nwords, a rqircscntative form.\n\nIt iis founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern thomselvcs directly. Accordingly, for the facili&- tion of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put inflo eftect the collective wiilr (page 11).\n\nQuoting from Jameson's \"Works of Paniel Webster\", ill is again stated'. at p.12 :\n\n\"These principles were recognised by our forefathers in framing the various Bills of Rights, which decliare in substance that, as all . power resides originally in the people, and is derived from them; the several magistrates and officers of government arc their substitutes and agents and arc at all times accounitablc to them.\n\nThe various agents of the people possess only such power as is expressly or impliedly delegated to them oy the constitution or laws under which they hold office; and do not plOssess even this, if it happen to 'be betond the poW'er of sllch Constitution or laws to' grant\".\n\n490 SIJPREME COtntT REpORTS [1973] Supp. s.c.a.\n\nA question that naturally arises is, arc the above postulates basic to our Constitution ?\n\nAfter referring to these pas.sages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given .the power to amend the Constitution to the bodies mentioned in Article 368.\n\nThese bodies represent the people, and the method to amend .any part of the Constitution as provided for in Article 368 must alone\n\nbe followed.\n\nIn his submission any other method, for example, Constituent Assembly or Referendum would be extra-constitutional or revolutionary.\n\nArticle 368 restricts only the procedure or the manner Or form required for amendment, but not the kind or character of the .amendment that may be made.\n\nThere are no implied limitations on the amending power under Articlie 368.\n\nIt is the people who have inscr'ibed Article 368 in the Constitution. In the numerous American .cases cited before us, there is a const'ant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification .by the people.\n\nIn that context the word 'amendment' has been construed widely because when the sovereign will of the people is expressed in amending the Constitution, It Is as if it were they who wer• expressing the original soveroign will represented in tho convention which drafted the Constitution. There has been even a divergence of .opinion among the writers in the U. S. as to whether the entrenched provisions for the representation of the States in the Senate whlch could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right.\n\nWith this or the several aspects of the American Constitution we are not called upon to .expound nor have we any concern wirli it except with the claim of the petitioner tha~ the fundamental rights have been reserved by the people to themselves and the counter-clalm by the learned Attomey- General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner l,'rescribcd in that Article would .amend any provision of the Constitution without any limitations as to the nature or kind of the amendment.\n\nThe people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would not be abk to take part in that process with proper understanding or intell'igence.\n\nThis to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objecllives and social benefits which accrue by following them, surely they could be trusted with -deciding on direct issues like amcsding the Constitubion.\n\nBut the wldc scheme of the Constitution shows it is insulated against the direct\n\nKESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 491\n\nimpact from the people's vote, as can be seen, fir~, by the electoral system wider which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislature; of the States, while the majority vote is represented by a minority of representatives, as is evident from the affidavit filed in respect of the recent elecllions by the Union of India on March 12 .• 1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation could not have been unknown to the framers can be gathered from the speech of Dr.\n\nAmbedkar who said: ''Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soi~ which is essentially widemocratic\". (C. A. D., Vol. VII, p. 38). In any case this aspect need not concern this Court as it deals wiith what has already been done, but since so much has been said about the people and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic.\n\nThere is no doubt some warrant in support of , the proposition that people have reserved to themselves the fwidamental rights, as observed by Patanjali Sastri, J., in A. K. Gopalan v. State Madras(1 ), to which a reference has been made earlier, and, therefore, it is •ubmitted\n\nthat these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. (See .with respect to the adoption of the Preamble as a part of the Constitution, C. A. D ..\n\nVol. X, p. 456). To digress somewhat, it appears that the observations in In Re : Berubari Union & Exchange of Enclaves('), that the Preamble was not part of the Constitution does nou seem to have taken note of the fact that the Constlituent Assembly had debated it and adopted the resolution. \"That the Preamble stand part of the Constitution\".\n\nIt appears to me that a comparison with Art. V of the U. S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them.\n\nSuch a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Court of\n\nthe U. S. in mterpreting our Constitution. If we were to o. cept the contention of the learned Attorney-General that the sovereignty is vested m Article 368, then one is led to the conclusion on an examination of the history of the Constitution-making that the people of India had never really taken part iin :the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any\n\n( 1) (1950) S.C.R. 88 at 100. t') (1960) 3 S.C.R. 250,\n\n492 SUPREME COURT REPORTS (1973) Supp. S.C.ll.\n\nstage except indirectly through representatives elected periodically for conducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the enlli.re territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15% of the country's population comprising of about 40 million electors. The people of the erstwhile princely States were not elected to tl1e assembly though the representatives of those States may have been nominated by the rulers. A day before the transfer of power on August 15, 1947, the Indian States were only subject to the paramountey of tlle British Crown.\n\nOn August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu & Kashmir, had voluntarily acceded to the Dominion of India.\n\nThe objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on December 13, 1946, when the Constituent Assembly met for the first time and at a time when the Muslim League bycotted the session (Sec C. A. D., Vol. I, p. 59). The 4th clause of that Resolution provided that all power and authority of the Sovereign Independent India, its OOIIlstituent parts and organs of government are derived from the people.\n\nThe Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be gii.arantee and secured to all the people of India, justice, social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, VQCation, association and action, subject to law and public morality; and wherein adequate safeguards shall be provided for minoritlies, backward and tribal areas, and depressed and other backward classes.\n\nThis Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. (See C. A. D., Vol. II. p. 324).\n\nWhile the claim was so made and at t:he time when the Resolution was ad, opted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, ss. 6 and 8 of which conferred on .-the Constituent Assembly the power to enact a Constitution, as well as the foll powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order. rule or re211lation made under any such Act, and the powers of the\n\n' KESAVANA.NDA w KEMLA (f'llganmohan Reddy, J.) 493\n\nLegislature of the Dominion of India shalJ include the power to repeal or am111d any such Act, order, rule or regulation' in so far as it is part of the law of the Dominion (See sub..;.\n\n(2) of s. 6).\n\nThese powers of the Legislature of the Dominion, under sub..s. ( 1) of s. 8, for the purposes of making a' Constitution. were conferred on the Constituent Assembly and reference in the Act to rhe Legislature of the Dominion was to be construed accordingly.\n\nIt was onlv in November 1949 after the work of the framing of the Constiturio~ was completed that the ruling Princes accepted it on behalf nf themselves and the people over w horn they ruled.\n\nThe Constitution was not ratified hy the people but it came into force, by \\•irtue of Article 394, on January 26. 1950.\n\nArticle 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935.\n\nReference may also be made to the fact that during the debates in the Constituent Assembly ir was pointed eut by many speakers th:>! that Assembly did not represent the people as such. because it wa\" not elected on the basis of adult franchise, that some of them even\n\nmoved resolutions suggesting that the Constitution should be ratified by the people.\n\nBoth the dairJ1)and the demand were rejected. Dr.\n\nAmbcdkar explained that, \"th~ Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind,. In considering the articles of the constitution it has no eye on getting through a parti cular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans see!Cing to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which the Constituent Assembly has none. That ls the differc; h<; e between the Constituent Assembly and the future Parliament. '!fhat explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simpl~ majority and why the Parliament though elected on adult suffrage . cannot be trusted with the same power to amend it\". (C. A. D., Vpi. VII, pp. 43-44).\n\nAt the final stages of the debate on the amending article, Dr.\n\nAmbedkar replying to the objection that the Constituent Assembly was not a representative assembly as it has not been elected on an adult franchise, that a large mi!Sf of the people arc not represented, and consequently in framing t~~I Constitution the Assembly has no right to say that this Constitution should have the finality which.\n\n!2-36 S.C.India/73\n\n494 SUPIU!ME COUllT IU!POllTS [ 1973) Supp. s.c.11.\n\nArticle 304 proposes to give it, said - \"Sit, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage.\n\nI am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adu1t suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate\", (C. A. D., Vol. IX, p. 1663).\n\nThe fact that the preamble professed in unambiguous terms that i.t is tbe people of India who have adopted, enacted and \"given to themselves this Constitution\"; that the Constitution is being acted upon wnquestioned for the last over twenty-three years and every power and\n\nauthority is purported to be exercised under the Constitution; and ihat the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the propOISition indisputable that the source and the binding force of the Constitution is the sovereign wilr of the people of India.\n\nOn this assumption no state need have unlimited power and indeed in Federal Polities no such doctrine is sustainable.\n\nOne has only to take the examples of U. S. A., Australia or Canada, and oU'r own where the Central and the State Legislatures arc supreme within the respective fields allotted to them.\n\nAny conflict between these is determined by the Supreme Court, whose duty is to declare the law.\n\nThose brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, controlled Of uncontrolled, but without going into tllese concepts it is clear that' if the State is considered as a society, \"to\n\nwhich certain indefinite but not unlimited powers arc attributed then there is no difficulty in holding that the exercise of State power can be limited\" (A. L Goodhart, \"English Law and the Moral Law\",\n\np~ 54). Even in a unitary State like the United Kingdom where itt. is\n\nbelieved that the Queen in Parliament is supreme, Professor A. L.\n\nGoodhart in the book referred to above points out that this is as misleading as the statement that the Queen's consent is necessary. After referring to Dicey, Coke and Blackstone, that parliamentary government is a type of absolute despotism, he says, \"Such a concluon must be in conflict not only with our sense of what is fitting, but also with our recognition of what happens in fact. The answer , is, I believe, that the people . as a whole, and Parliament itself, recognise that under the unwritten Constitutian there are certain established principles which limit the scope of Parliament. It is true.\n\nKESAVANANDA v. KERALA (!1aganmoflan Reddy, J.) 495\n\nthat the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does not mean that these principles are any the le, s, s binding and effective. For that matter some of them receive greater protection today In England than they do in the United States. These basic principles are, I believe, four in number\". (A. L. Goodhart, p. 55).\n\nThen he narrates what these four principles are : First, that no man is above the law, the second, that those. who govern Great Britain do so in a representative capacity and are .subjeGt to change but \"an immortal government tends to be an immoral government\"; the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes :\n\n\"It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism.\n\nThose who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power.\"\n\nBefore considering the detailed contentions it is necessary to see what was intended to he achieved by the Twenty-fourt!h Amendment.\n\nI have already set out the changes made in Art. 368. These are-\n\n(a) In the marginal note, instead of the expression \"Procedure\n\nfor amendment of the Constitucion\". it was substituted by\n\n\"Power of Parliament to amend the Constitution and Procedure therefor''. This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amendment, though the majority in Golaknath'.c case had held that Art. 368 contains both power and procedure;\n\n(b) By tl1e additio.n of clause (1), three changes were effected namely, (i) a non obstante clause \"Notwithstanding anythin~ in this Constitution'', (ii) \"Parliament may in exercise of its constituent power\"; and (iii) \"amend by way of addition, variation or repeol any provision of the Constitution in accordance with the procedure laid down in this article\".\n\nIt has already been seen !ihat both in Sankari Prasad' s and Saiian Singh's cases, the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath's case also all the\n\n496 SUPBEME COURT REPORTS (1973] Supp. s.c.R.\n\n' Judges held that it is only Parliament which makes the amendment.\n\nThe question whether the power in Art. 368 is a constituent power or a legislative power has of course been debated.\n\nThe law in in generic terms includes a constituent law, namely, the Constitution\n\nitself made by a Constituent Assembly-as indicated by the words \"The Constitution as by law established\", or an amenciment made in accordance with the provision contained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument.\n\nThe quality and the nature of the law has been differently described; but broadly speaking the Constitution or the amendments thereof are termed as law which is made in exercise of its constituent power, though the reach of each may differ. Il it is true, as is contended, that both these in the plenitude of power are co-extensive, on any view of the matter, no difficulty is encountered in describing the amending power as the constituent power.\n\nEven otherwise without resort to any great subtlety or distinction between the exercise of power by a constituent body and a constlituted body inasmuch as both are concerned in the making of the Constitution or in amending it, they can be considered as a constituent power. The amending power is a facet of the conslJituent power, but not the whole of it. The power under Art. 368 after the amendment is still descrih ed as amending power.\n\nThe Twenty-fourth Amendment makes this explicit because it did not want a doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of. the grant in Arts. 245 to 248 and an amendment in terms of Art. 368, it should not be considered that both these are legislative laws within the meaning of Art. 13(2) which was whav the majority in Golaknath's case had held.\n\nIn the view I have taken that Article 13(2) was confined only to the ordinary legislative laws and not one made under Art. 368, the addition of clause ( 1) to Art. 368 in so far as it declares that when Parliament exercises the power under th•t provision it exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes no change in the position which prevailed before the amendment.\n\nIt has also been seen that the amendment added clause (3) to Art. 368 that \"Nothing in Article 13 shall apply to any amendment made under this article\", and has added clause (4) to Art. 13 that \"Nothing\n\nin this article shall apply to any amendment of this Constitution made under Article 368\". These additio~ having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 3(>8, unless of course, there is a limitation in Article 368 itself on the width of the power which the word 'amendment' ia the context of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein.\n\nKESAVANANDA v. KHRALA <J'aganmohan Rtddy, J.) 491 ,\n\nThe outstanding question then is, what is the meaning of the word 'amcndment'-whether it has wide or a restricted meaning, whether the word 'amendment' includes repeal or revision, and whe ther having regard to the other provisions of the Constitution or the context of the word 'amendment' in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution.\n\nThe existence or non-existence of any implied limitations on the amending power in a written Constitution which does not contain any express limitations on that power has been hotly debated before us for days. I have cariler set out some of these contentions. If the word 'amendment' has the restricted meaning, has that power been enlarged by the use of the words \"amend by way of addition, variation or repeal\" or do they mean the same as amendment? If they arc wider than amendment, could Parliament in exercise of its amending power in Article 368 enllargc that power? This aspect has been seriously contested and cannot on a superficial view be brushed aside as not worthy of merit. 'fhrre can be two ways of looking at it. One approach can be, and it would be the simplest solution to the problem that confronts\n\nus, to assume. that the amending power is omni-sover.eign and there after the task will be easy because so much has been written by academic writers that it will not be difficult to find expression of views which support that conclusion. Long years ago, Oliver W cndall Holmes had written, \"you can give any conclusion a logical form\" and one can only say how true it is. This course, however, should be eschewed, firstly, because of the a prio1-i assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which arc different will, if drawn upon, in effect allow them to interpret our Constitution. which though derivative it may be, has to be interpreted on the strength of its provisions and the ethos it postulate... It is, therefore, necessary to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Gov. ernment whereunder individual rights of citizens, the duties towards the community which the State was enjoined to discharge; the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., arr provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach.\n\nThe learned Attorney-General contends that the word 'amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the Written Constitutions of other countries also ever sin(e written Constitutions have been innovated.\n\nThe word\n\n4 9!S SUPREME COURT REPORTS (1973 j Supp. S.C.R.\n\n\"amendment\" according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon.\n\nWhile making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advo. cate for the petit10ner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the Court is not concerned with the policy of the Legislature arc not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in fames v. Commonwealth of Australia,(') cited on behalf of the first respondent that, \"A Good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. 'Free' in itself is vague and indeterminate. It mmt be its colour from the context\".\n\nThe learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment\n\nh:ne been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wi<le. It is also his contention, relying on Strong on \"Modern Political\n\nConstitutions\" that the amending provisions re-create the Constituent Assembly, provide some elements to be 'unaltered, and since our Constitution-makrrs who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are no express limitations, no restriction on that power can be read Into it by implication. A reference to the provision relating to amendment either in the United States or in the States' Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this country in the amendment of the Constirution, but such attempts did not succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, \"What is possible in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more; are entitled to adopt the same. I do not want\n\n( 1) [1936] A.C. 578 at p. 627 (P.C.).\n\nKESAVANANDA v. !Cl!llALA (}aganmohan Reddy, J.) 499\n\nto as,<; OCiatc the State Legislatures in the process of amending the Consnution.\" He also said that, \"If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists\". (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived. (C.A.D., Vol. IX, p. 1665 J.\n\nA reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal cir whinling down. Even assuming that that Article had been incorporated in the Constitution.-what docs the word 'amendment' in that context imply?\n\nFirst, draft Article 305 starts with the non-obstante clause, \"Notwithstanding anything contained in Article 304\" (present Article 368), and, second! y, the provisions relating to the reservation of seats for the , minorities \"shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect\n\non the expiration of that period unless continued in operation by an amendment of the Cons6tution''. This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the nrin-obstante clause excludes , Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.\n\nIt was contended that the word 'amendment' in Article 368 must be , ll>nstrued as meaning change for the better, improvement, etc. In\n\nGolaJr..nath'; case a similar contention was rejected by some of the learned Judges. Subba Rao, C. J., (speaking for 5 Judges) did not expre51; any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provision• thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be an1wered\n\non a narrower basis. He observed that : \"This question may arise for tonsideration only if Parliament seeks to destroy the structure of the Constitution embodied .in the provisions other than in Part Ill of the Constitution. We do not, therefore, propose to express our opinion in that regard\" (pp. 804-805).\n\nHidayatullah, J., at p. 862 said :\n\n\"! do not take the narrow view of the word 'amendment' as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered\".\n\n500 SUPREME _COURT REPORTS [1973] Supp.• s.c.R.\n\nW'anchoo, {, (speaking for himsel£ and two other Judges), observed at. p.834:. - -. .\n\n- .. -- ,: -_ ' _,. ,_\n\n''To say that 'amendent' in law only mns a chaiige which results in improvement would make amendments impossible, for what is improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others. It is, therefore, in our opinion impossible to introduce in the concept of amendment as used in Article 368 _any idea of improvement as to detaits of the Constitution. The -word 'amendment' _used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an -existing Constitution or law can be changed, and this change can take the form either of addition to the exist- . __ ing provisions, or alteration of existing provisions and their substitution by others or deletion of certain proisions altogether\"'.\n\nAfter noting that the _word \"amend\" in the VI Schedule, paragraph 21, where it was preceded by words \"by w:iy of addition; variance or repeal\" and more or less similar expressions in other Arlicles of the Constitution, he observed, \"it is very diflieult to say why this was done.\n\nBut the fact that-no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' m a law is clearly as indicated above by us and the presence or absence\n\nof explanatory words of the nature indiC:ated above do not in our opinion, make any difference\". Bachawai J., at pp. 915-916, says:\n\n- • 1 • ' ' • ' • • '\n\n\"Article 368 indicates that the term 'amend' means 'change'. 'The proviso is 'expressed to apply to amendments which seek to make any 'change' in cert:Un articles. The m:Un part of Article 368 thus gives the power to amend or to make changes in the Constitution. _ A change is not necessarily an improvement. Normally the change is made with the object of making an improveent, but the experiment may fail to achbe the -purpose. Even the plain dictionary . meaning of the word 'amend'. does not support the contention that\n\nan amendment must take an improvement, -see. Oxford English Dictionary, where the word 'amend' is defined thus : \"4; To make professed improvements (in-a measure before Padiament) formdlly to alter in detail though practically it may be to alter its principle so as to thwart it\". The 1st, 4th, 16th and 17th' Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368\". -\n\nRamaswami, J., has not specifically dealt with the meaning of the \"'ord 'amendment'. ·~:.,~;-:\"1!·\n\nKES .. VANANDA 11. llERALA (/viganmohan Reddy, J.) 501\n\nIt is obvious from these observations that the attempt to restrict the meaning of the word 'amendment' to 'improvement' has been rejected by live of the learned Judges 'm Golaknath's case.\n\nThe learned Attorney-General, however, in the written summary of his arguments, said \"The majority of the learned Judges in Golaknath' s case rejected the arguments that the expression amendment of of a Consutution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on thls point\". (Page 30, Para 9). This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied !; imitations and the width of the meaning of word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Chnstitution whether general or specific, while the latter deals with scope and the cambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the aistence of the implied limitations. On. the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word 'amendment' did not deal with the existence or non-existrnce of implied limitations under our Constitution. Bachawat, J., :1t pp. 915 and 916 also did not think it necessary to pronounce <>n implied limitations and like Wanchoo, J., has separately considered\n\nthese two concepts (sec pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limit:>-\n\ntions.\n\nThe learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whecher it is intended to be an 'improvement, the answer will always be 'Yes'; because he .cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic.\n\nThis is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement.\n\nBachawat, J ., earlier at p. 915 in Golaknath' s case referred to the .decWon Lit1ermo1e v. E. C. Waite,(') in support of the submission that an amendment must be an improvement of the Constitution. The following abscrvations in Livermore's case were cited by him:\n\n\"On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original\n\n( 1) (102) Cal. 113-25 LR.A. 312.\n\n502 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\ninstrument as wilil effect an improvement, or better carry out the purpose for which it was framed\".\n\nWith respect to this passage, Bachawat, J., observed :\n\n\"Now an attack on the eighteenth amendment of the U.S. Gonstitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confinecl in its scope to an alteration or impro'l'.ement of that which is already contained in the Constitution and cannot change its basic mucture, include new grants of power to the Federal Government nor relinquish in the Sate those which already have been granted to it\". (See Cooley on Constitutional Law, Chapter III, Art. V, pp. 46 & 47).\n\nI find from the reference to the National Prohibition case and the p; ges of that report given \\iy Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to that effect have been made at page 9i8 by Mr. Justice Van Devanter. In that case the Supreme Court was considering an appeal from a District Colin which had rejected the contention that 18th Amendment was not valid on the ground that, \"The definition of the word 'amendment' include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense\". The decree of the Court below was affirmed in the National Prohibition case. (Rhode Island v. Palmerl.(1) At p. 960 the briefs filed by the Attorney-General of Rhode Island and others did. however, refer to the passage cited by Bachawat, JJ., in Iivermore v. Waite. But none of the Judges in the National Prohitiotr case either referred to the passage in Iivermore's case nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case totally negatived that contention.\n\nIt may be the opinion of Cooley in his Book on \"Constitutional Law'\" that the p\"5sagc in Livermore's case cited by Bachawat, J., did not support the !>roposition therein stated. Rut all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of\n\nthe Disrrict Court whose decree was affirmed, it may be takn to have laid down that the word amendment would include addition of a\n\n(') 64 L. ed. 946:\n\n.....\n\nllSAVANANDA v. KERALA (}aganmohan Reddy, J.) 503\n\nprovmon to the Constitution and beyond this nothing more can be inferred from this judgment.\n\nThe argument of the learned Advocate-General is that the words \"amendment of this Constitution\" in sub-para (2) of para 7 and sub-para\n\n(2) of para (21) of the respective Scheduh:s refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words \"amendment of this Constitution\" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath's case while Wanchoo, J., could not fathom the reason why the expression 'by way of addition, variation or repeal' was used in Schedule V para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word 'amendment'. In other words, according to the learned Advocate-General, the word 'amendment' in Article 368 is synonymous with the expression 'amend by way of addition, variatiion or repeal' so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word 'amendment' had before Article 368 was amended.\n\nWhat an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Thougli all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one (p. 834).\n\nIt is also not disputed by the learned Attorney-General, the learned Solicitor-General and the learned Advocate-General for Maharashtra that an amendment of the Constitution docs not extend to abrogation of the Constitution, and on the contention of the learned Advocate-General, altrogation means repeal, both words being synonymous, and that thr.\n\nConstitution cannot be substituted by a new Constitution.\n\nIn further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it -stauds now has always been, and continues to be, a ronstituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power docs not mean that the Constitution at any point of time would be so amended by way of addition, . variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole ob'ect and necessity of\n\n504 SUPREME COURT REPORTS' [ 1973] Supp. S.c.:R.\n\nthe amending power in a Constituttion so that the Constitution continues, and a constituent power, unless it is expressly !imited in the\n\nConstiut!o~ itself, can by its very nature have no limits, because if any such limit 1s assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.\n\nIf amendment docs not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which lie said, \"that repeal and abrogation mean the same thing since \"repeal\" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings\", a , question arises, where , is the line to be drawn ? .\n\nThe learned Attorney-General said that Article 368, clause (e) of the proviso by giving a power to amend the amending power, has\n\nconferred a wider power of amendment but that does not imply that the power of amendment had a liimited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article. 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another?\n\nTo this question the answer of the Attorncy-Gcrteral was that clause ( e) of the proviso was added by way of abundant caution to meet a similar criticism which was dircctocl against Article V of the U. S. Consiitution. According to Advocate-Genera! for Maharashtra, clause ( c) of the proviso was inserted to qiccc the assumption of Chief Justice in the Irjsh case of The State (Ryan & Ors.) v. Lennon & Ors., (1) that if amending provision could have been amended, then no limitation can be read. Hon'b!e the Chid Justice has dealt with this aspect in full jand I do not, therefore, propose to refer to it. cx<:pt to say that the analogy )s inapplicable to the interpretation of Article 368.\n\nApart from the power of amendment not extending tO tllc abrogation of the Constitution, i.t will appear on the submission of respondents, the pnion of. India .an<;! the. State of Kerala, that the office of the President cannot be abolished without the conc:urfence of at least half the States even though Articles 52 and 53 arc not\n\nincluded in the proviso to Article 368. The very fact that Article 54 . and Artiitle 55 are included in the proviso, it would, according to the learned Solicitor; Gencral imply that the offict of the President c:lllOOt be abolished without the concurrence of the States. Wanchoo, J, in Golaknath's case dealt with a similar contention at p. 844. Though he thought that the supposition was imposs.ible, and I entirely agree\n\n( 1) (19.~5) Irish Reports 170.\n\nKESAVAN.<NDA v. KERALA (Jaganmohan Reddy, J.) 505\n\nwith him that it is not likely, yetin such a case, \"it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President. .. .it will require ratification\". Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is\n\nrrad into Article 368 by reason f the proviso entrenching Article 54.\n\nThe learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by sub-clause (2), vests the Supreme Command of the Defence Forces of the Union in the President, wonld also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that an\n\nimplied power to amend is fonnd in Article 368. When the form and manner is complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled 'amendment of the Constitution', the above conclusion\n\n'!fas reached. The petitioner's counsel naturally asks that if The Queen v. Burah, (1) is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by aflirmative words and against the existence of limitations,. this proposition clearly negatives the respondents' other subrdssion that the source of the amending power must be impliedly found in\n\nArticle 368 although such a power is not to be found aflirmativdr conferred.\n\nThough. there are naturaly some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies,. and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existenc-e of implied or inherent limitations, because if the amending power is wide and plenary, thoselimitations can be overriden as indeed the non-obnante clause in the amended clause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word 'amendment\"\n\nis wide enough 'to confer a plenitude of power including the power to repeal or abrogate.\n\nThe learned Advocate-General has further wbmitted that there is intrinsic evidence in the Constitution itself that the word 'amendment' in Article 368 means 'amend by way of addition, variation or repeal', hecause if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub.para ( 1 ~\n\n( 1) (1877-18) J.C. 179.\n\n506 SUPllEME COUJlT Jtl!pORTS [ 1973] Supp. s.c.a.\n\nmpowering Parliament to \"amend by way of addition, variation or\n\nrepeal\" any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articlt:s in which the word 'amendment' has bun used, as also to several others in which that word or its variation has been\n\nused in continuation with other words.\n\nBut these expressions do not show that the word 'amendment' is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is g.iven as an instance of this, nor according to him does anything turn on the fact that S. 291 of the Government of India Act, 1935, was amended just about a few weeks before Art. 368 was finalised, and in which the word 'amendment' was substituted for the words 'amend hy way of addition, variation or repeal'.\n\nAccording to him what this Court must cons.ider is that since Art. 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense.\n\nIf the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Art. 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then ant needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni-sovereign. But this the framers did not do and hence the _, uestion will. be whether by an amendment under Art. 368, can Par liament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limitt:d legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance wotild be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power\n\n\\II it can achieve even a destructive end. It is against abuse of power that a constitutional structure oi. power relationship with checks and\n\nKESAVANANDA II. KERALA (}aganmohan Reddy, J.) 507\n\nbalances is dc:vised and safeguards prov\"1ed fur whether expressly or by necessary implication. And the question is whether there arc any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power ?\n\nThe petitioner's counsel, learned Advocate-General and the learned Attorney-General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a\n\nlarge number of Constitutions in which the word 'amendment' or words used for nmending the Constitution have been employed, to show that there is no difference or distinction between these words and the word 'amendment'. In all these Constitutions, subject to whieh I said of. the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either 'amendment' or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word 'amendment' alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia, Jordan, Kuwait, Lebanon, Vicu1am Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amcndatory process.\n\nThese Constitutions have used different words than the words used ia our Constitution. When the word 'amendment' or 'amend' is llSCd, it has been invariably used with the words 'alter', or 'repeal', or 'revise', or 'variation, addition or repeal', or 'mcxlificatrion', or 'suspension', or 'addition', or 'deleting', or 'partially amend', or 'general amendment', or 'specific, partial or complete', or 'wholly or partially amend', or by a combinction of one or more of these expressions. In one of the O>nstiutions, namely, Trinidad & Tabago, the word 'alteration' was defined to include 'amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a differen~ provision in )ieu of the provision'.\n\nIn some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amc!ld', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment . Section 29( 4) of the Ceylon Constitutional Order, 1946, which was the subject-matter of decisions in Liyanage v. The Queen(')\n\n(1) (1967) 1 A.C. 2'9.\n\n508 SuPREME COURT REPORTS (1973] Supp. s.c.R.\n\nand The Bribery Commissioner v. Rana Singh(') cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section \"Parliament may amend or repeal any of the provisions of this Order, or of any other Order\".\n\nBut this sub-section entrenches by mb-s. (2) certain matters from being amended because as the Privy Council observed that \"They represented a sokmn \"balance of rights between the citizens of Ceylon\".\n\nIn the Constitution of Finland the words used are adoption,. 11mendment, or abrogation of a fundamenml law. The Irish Constitution, 1937, provided by Art. 46( 1) that any provision of the Constitution may be amended, whether by way of variation, add#ion, or repeal in the manner provided by. the Article, and . the Constitution ci Malaya has defined the word in clause ( 6) of Art. 159 that 'amendment' includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed.\n\nThe Constitution of the Union of South Africa has used the words\n\nrepeal or alter and the Constitution of the United States of Brazil has an entrenched provision in clause (6) of Art. 217 that the Bilis tending to abolish the Federation and the Republic shall not be admitted to consideration.\n\nThese references not only do not show that the word 'amendment' has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh dectkms are required to be held to consider the amendments.\n\nIn some of these Constitutions there was also difference made between total and partial amendments and where the word 'alteration' has been med, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-Gc!¥'ral or by the ones to which I have referred, and if at all, they only show that the word 'amendment' has not, u ' contended, unambiguous, precise or wide connotation.\n\nfo is said that the words \"amend by way of addition, variation or repeal\" by reference to clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and consequently Article 368 empowers the repeal of any provision of the Constitution. If the word \"repeal\" means abrogation, then an amendment under Article 368 can even abrogate any pr, ovision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase \"by way of\" call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharscology. An illiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having\n\n(') (1964) 2 W.L.R. 1301.\n\nKESAVANANDA I/, KERALA (faganmohan Reddy, J.) 509\n\na meaning different from the literal. As the Words & Phrases-Permanem Edition, Vol. 5, p. Ill!, would show that \"by way of\" may be taken to mean \"a!ii for the purpose of', \"in character of', \"as being\"\n\nand was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, \"by way of\" a licence for their corporate franchise. The illustration given should show that in fact t!he payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, th.e substitution of the word \"amendment\" by the expression \"amend\n\nby way of addition, variation or repeal\" makes no difference as it bears the same meaning as rhe word \"amendment\".\n\nIn it. ordinary meaning the word \"amend\" as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning \"to alter, modify, rephrase, or add to or subtract from\". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word \"amend\" has been treted\n\nas synonyliliO'US with correct, reform and rectify. It is also stated that \"amendment\" of a otarute implies its survival and not destruction. The word \"amend\" in legal phraseology, does not generally mean the same thing as \"repeal\", because there is a distinction between a \"repeal\" but it does not follow that \"amendments of statute may not often be accomplished by repeals of some of its parts\" and though \"amendment may not directly amount to repeal, it may have such a consequential effect!'. Crawford in his book on \"The Con. struction of_ Statutes\" 1940, pp. 170-171 which is quite often referred to and used in this Court, states that \"a law is amended when it is in whole or in pan permitted to renµin and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal . to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that 'it is the effect of the Legislative act which determines its character\". The first part of this definition may be com pared with the meaning indieated by Wanchoo, J. in Golaknath's case at p. 833 to which a reference has already been made.\n\nBoth the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word 'amend' in support of their respective contentions, but these decisions which are rendered in th~ context of the Constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word 'Amendment' has been used in the contradistinction with the\n\n33-36 S. C. Jndia/73\n\n510 SUPREME COURT REPOP.TS [1973] Supp. s.c.a.\n\n word 'revision'. Words and Phrases, Permanent Edition, Vol. 37 says, \"The term 'repeal' is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive wh:ile a 'repeal' destroys.\" See State ex rel. Strutx v. Baker(1). It. is, therefore, appa rent from the meaning of the word 'amendment' that i~ does not\n\ninclude 'repeal' or 'abrogation' nor is it the same as revision. I would now refer to certain provisions of the Constitution where the words \"amend\" or \"repeal\" have been used to indicate that the ambit of the power of amendment does not extend tp repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or .expedient, to bring it in conformity with the provisions of the Constitution.\n\nSee also Article 372(2) (b ). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word 'repeal' is used in conttadistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until \"altered or repealed or amended\" by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under Article 372 continue in force uncil \"altered or repealed or amended\" by Parliament. See provo to clause (2) of Article 254 and clause (5) of Article 350. It may also be noticed that before the repeal of Article 243, clause (2) thereof provided that the President may mako regulations for the peace and good government. of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred' provisions, the framers have used the wiord 'repeal' of a law in contradistinction to the word 'amend' of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were me.ticulous enough to we two distinct words. If the word 'amend'\n\n( 1) 299 N.W. 574, 578, N.D. 153.\n\nKESAVANANDA \"· KERALA (Jaganmohan Rddy, J.) 511\n\nor 'amendment' in its generic eonnotation meant 'repeal' then this word would not have been used in contt; adistinction with the word amendment or amend in some articles, and only the word\n\n'amend' or 'amendment' in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word 'alter' could imply also a variation. Nonetheless it is apparent that the word 'amendment' as used in Article 368 does not connote a plenitude of power. This is also clear from sub-section (2) of s. 6 of the Indian Independence Act, 1947 which, as alreai:ly seen, even in the context of the power to be possessed by the Constituent Assembly, uses the word 'repeal' or 'amend' to indicate the plentitude o( the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Acti also use the word 'amendment' in the sense of change and not repeal of the law. On the other hand, sections 106(2) of Government of India Act and Article 372(1) use the word 'repeal'. In the former, power is given to repeal a law, and in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenct Act, etc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in clauses (3) and (4) of Arrick 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accep~ and if it does not, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein.\n\nThe argument that if wide construction is given to the word 'amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under tlhe proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the funchimcntal rights are sought to be amended under Art. 368. This aspect is not, however, determinative of the extent of the power of amendment under Art. 368. The word 'amendment' read with the other provisions indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution .as is evident from the proviso which requires that where the provisions specified in clauses (a) to ( e) have to be amended they hav~ to be ratified by the resolution of not less than one-half of the Legislatures\n\n512 SUPREME COUllT REPOllTS [1973] Supp. s.c.R.\n\nof the States. This proviso furnishes a key to the meaning of the word 'amendment', that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Art. 368 cannot be enlarged by amending the amending power under proviso ( e) to Art. 368.\n\nWhat follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot. be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this councry. If the entire Constitution cannot be abro, gated, can all the provisions of the Chnstitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a-vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under Art. 368.\n\nThe Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was conttcnded that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclat1es, but the Court did not appear lb have noticed that it was adopted by the Constituent Assembly :is part of the Constitution. The observations of Gajendragadkar, C. J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is \"a key to open the mind of the makers\" and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus : (p. 282)\n\n''What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assump-\n\nKESAVANAJ'IDA !I. KERALA (]aganmohan Reddy, J.) 513\n\ntion that the first parn of the preambk postulates a very scribus\n\nlimitation on one of the very important attributes of sovereigntv itself. As we will point out later, it is universally recognised that one of the. attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest fo may perhaps be arguable that if the terms used in any of the articles in the Constitution arc ambiguous or arc capable of two meanings, in inter prcting them some assistance may be sought in the obiectives enshrined in the preamble. Therefore, Mr. Chatterjee is oot right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a noccssary and essential attribute of sovereignty\".\n\nIt may be pointed out that the passage from Story and Willoughby cited there.in have not been fully extracted. For a proper appreciation\n\nof the views of these authors it is necessary to examine the relevant passages in, full. Story says, \"It is an admitted maxim ... that the preamble of a statute is a key to open the mind of the makers as to t.he ml.lchicfs, which' arc to be remedied, and the objects, which are to be accomplished by the provisions of the statute ........ the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there\n\nseems little room for 'interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stad in the preamble ...... The preamble can never be resorted to, to enlarge the powers confided to the general government;, or any of i~ departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them ...... We have the strongest assurances, that this preamble was not adopted as a m_ere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government\". (Story, Constitution of the United States, Vol. I, pp. 443-446).\n\nIt is clear from the above views of Story that:. (a) the preamble is a key to open the mind of the makers as to the mischiefs, which arc to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enactling part; ( c) even where the words arc clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed\n\n514 suPREME. couar UPOllTS [1973] Supp. s.c.a.\n\nin the preamble, and it would be much more so, if they were ambiguous; ( d) there is no reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; ( e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn fr:>m the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.\n\nThe passage extracted from Willoughby no .doubt shQws that the Preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus :\n\n\"Special signilicance has at various times been attached to several of the expressions employed in the Preamble to the O:mstitution.\n\nThese expressions are :\n\nThe use of the phrase \"We, the People of the United States'', as indicating the legislative source of the Constitution.\n\nThe denomination of the instrument as a \"Constitution\".\n\nThe description of the federation entered into as \"a more perfect Union.\"\n\nThe enumeration of \"the common deferu:e\" and \"general welfare\" among the objects which the new Government is established to promote\" (Willoughby, Vol. I, p, 62).\n\nThese American authors, therefore, reaognise the Use of the Preamble to ascertain the essential concepts underlying the Constitution.\n\nThe English cases show that the. preambl~ can be resorted to as a means to discover the legislative iIJtent of which one may be cited.\n\nIn the Attorney-General v. Prince Earnest Augustus. of Hanover,(1)\n\nthe House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p .. 461 : ''For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I U,!j: 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in\n\n(') (1957) A.C. 436.\n\nKESAVANANDA 11. KERALA (Jt1ganmohan Reddy, J.)\n\nSIS\n\nPari materia, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy\". Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd.,(1) that 'the preamble cannot be made use of tn control the enactments themselves where they are ciprcsscd in clear and unambiguous terms', Viscount Simond said at p. 463: \"it is ofren difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that no one should profe5s to understand any part of a statute or of any other dacument before he had read llhe whole of it.\n\nUntil he has done so he is not entitled to say that it or any part of it is clear and unambiguous . . . I would suggest thau it is better stated by saying that the context of the preamble is B:lt to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying . . . that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the en acting words when its own meaning is in doubt.\"\n\nOn this aspect Locd Normand said at pp. 467-468: \"when there is a preamble it is generally in its recitals that the mischief to be remedied and the SCOP.e of the Act arc described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as arc other relevant en acting words to be found elsewhere in the Act or even in related Acts . . . . It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail ... it is the court's business in any case of some difficulty, after informing itself of . . . the legal .and factual context including the preamble, tX> consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward . . . If they admit of anly one construction.· that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which lits the preamble may be preferred.\" Lord Somervell said at p. 47.4, that, \"The word 'unambiguous' musfi mean unambiguous in their. co~ text''. Lord Thring, one of the great draftsmen of England m h!s book on \"Practical Legislation\", Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, \"a preamble may also\n\n( 1 ) (1899) A.C. 143.\n\n516 SUPIU!ME COURT IU!PORTS [1973] Supp. s.c.R.\n\n~ used to limit the scope of certain expressions in the Act, and sometunes a preamble is inserted for political reasons when the obiect of an Act is,, popula~, and. adts of being stated in a telling sentence or\n\nentences. In Sa11an Smgh s case at p. 968, Mudholkar, J., while takmg note of the contention that it has been said that the preamble is not a part of the Constitution observed: \"But, I think, that if upon a comparison of the preamble with the bllOOd features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently, if these features are an amplification or concrctisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?·\" With great respect, I agree with the view expressed by him.\n\nThese observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the construction of the statute where the words arc ambiguous, or even where the words are un ambiguous to aid a construction which will not lead to an absurdity.\n\nWhere the preamble conveys a clear and definite meaning, it would prevail over the enacting words which arc rcla!lively obscure or indefinite or if the words arc capable of more than one construction.\n\nhe construction. which lits the preamble may be preferred.\n\nIn In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Snory that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resort:.ed to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did cate gorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, \"it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty\" (emphasis supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a so_urce of <erious limitation if such exists. In any case though the advISory opinion is entitled to the greatest respect, it is not binding when. any concrete issue arise for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all.\n\nKESAVANANDA ti. KEllALA (faganmohan Reddy, J.) 517\n\nI will now consider the question which has been streneously comended, namely, that there are no essential features, that every :feature in the Constitution is essential, and if this were not so, the .amending power under the Constitution will apply only to non-essential features which it would be difficult to envisage was uhe only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitllltion.\n\nThe argument at first flush is attractive, but if we were to ask ourcSelves the question whether the Constitution has any structure or is structureless or is a \"jelly fish\" to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If th< ConstitutiGn is considered as a mechanism, or call it an organism m a piece of constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hhn'ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic structure. I do not intend to -cover the same field once again. There is nothing vague or unascertainablc in the preambleand if what is stated therein is subject to this critidsm it would be equally true of what is stated in Article 39\n\n(b) and ( c) as these arc also objectives fundamental in the governance of the country which the State is enjoined to achieve for the\n\nunelicratiGn and happiness of its people. The clements of the basic structure are indicated in the preamble and translated in the various provisions Gf the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, , the Constitution collapses. These are: (!) Sovereign Democratic Republic; (2) Justice, social, economic and political;\n\n(3) Liberty of thought, expression, belief, faith and worship; (4) Equality of sti, atus and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitu 'lion guarantees. To wjthdraw any of the above clements the structure will not survive and it will not be the same Constitution, or this Constitutbn nor can it maintain its identity, if something quite different is substituted in its place, which the sova.ign will of the people -alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another oppooed to it or him. Such a republic is non what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them.\n\nIf this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to ( 4) above\n\n518 SUPREME COURT REPORTS [1973] Supp. s.c.J..\n\neither rollectively or separately. What is democracy without social, economic and political justice, or what value will it ha•1e, where its citizens have no liberty of thought, belief, faith or worship or where there is no equality of status and of opportunity? What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as these w:ill fall for consideration in any concrete case where they are said to have been abrogated and made. non-existent. The facn that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exis!I. Are all the elements which make a law void and unconstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: withoun either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice?\n\nThe History of the agitation for political freedom, fundamental rights and self-government is well known.\n\nAs I said earlier, ever since the second half of the 19th century the struggle has been going on and when ultimately India in spite of the partition, achieved its cherished dream of independence and territorial unity from north to south, and east to west. which in millinneum it could not achieve. the fundamental objectives formed the corner stone of the nation. As Granville Austin so aptly puts it fa his book \"The Indian Constituti1an\" at page 50, \"The Inclian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution bv establishing the conditions necessary for its achievement. Yet despite the permeation of the entire constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hop~ and xpecta tion that one day the tree of true liberty would bloom m India. The\n\n' '\n\nXESAVANANDA v. KUALA (faganmohan Reddy, J.) 519\n\nRights nnd Principles thus connect India's future, present, and past, adding greatly to the sigmficancc cl their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India.\"\n\nThe demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first time, the Indian National Congress which was formed in 1885, made a demand for them in the Constitution of India Bill. 1895 and these demands were reiterated from time to time. Annie. Besant's Commonwealth of India Bill contained a demand for 7 fundamental rights. The Simon Commission rejected these demands for inclusion d fundamental rights, but Moti Lal Nehru Committee draf11ed a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said:\n\n\"It is obvious that our first care should be tJo have our fundamental rights guaranteed in a manner. which will not permit their withdrawal under any circumstances .... \"\n\nThe Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to constitutional rights because till then State's negative obligations were alone being emphasised. By that Resolution \"the demand now equally emphasised the State's positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning\". (Granville Austin, p. 56). The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusiori existing in the minds of the members in respect of the fundamental rights, said: \"There is this confusion, this overlapping, and hence I think a great deal of difficulty has _been brought into the picture. A fundamental rights should be looked upon nol\n\nfrom the point of vie11J of any particular difficulty of the moment, but as something that you want to make permanent in the Constitu tion. The other matter should be lo:iked upon - however important it might be - not from this permanent and fundamental point of view,· but from the more temporary point of view\" (emphasis supplied). Dr. Radhakrishnan described the declaration of basic freedoms as a pledge to our own people and a pact with the civilised world\". (Constituent Assembly Debates, Vol. II, p. 273). Dr. Ambedkar speaking on the Objectives Resolution, said that \"when one reads. that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French Constituent\n\n520 SUPREME COUJl.T REPORTS [ 1973] Supp. s.c.R.\n\nAsbly. I think I am right in suggesting that, after the lapse oi\n\npracacally 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and pllf'cel of our mental makeup. I say they have become not only the pllf't and pllf'cel of the mental makeup of modern man in every civilised part cf the world, but also in our own country which is so orthodo:r, so archaic in its thought and its social structure, hllf'dly anyone can be\n\nfound to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is. therefore unnecessary to proclaim as forming a part of our creed. The Resolution s11ffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded.\" The reference to the remedy that was absent in the -Objectives Resolution, was made good by l!he inclusion of Article 32, with respect to which he said: \"an article without which this Constitution would be a nullity . . . I could not refer to any other .article\n\nxcept this one. It is the very soul of the Constitution and the tier)'\n\nhellf't of it and I am glad that the House has realised its importance_ . . . It is remedy that makes a right real. If there is no remedy there is no right at all ... \" (emphasis supplied) - Constituent Assembly Debates, Vol. VII, p. 953- Although he said. while dealing with appropriateness of the English high prerogative writs as affording an\n\nffective remedy that these could be amended he clid not say that either the judicial review could be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkar's observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were so, his observations could be in clear conflict with the express language of clause 4 of Article\n\n32. The guarantee in clause 4 of Article 32 could be conceived of onlv against amending power, for no ordinary law can suspend a right given by \\he Constitution unless permitted by the Constitution itself.\n\nWhen clause 4 of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy canm>t be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else in the debates which would suggest that any of the members ever entertained any notion of abrogation of any of the fundamental rights. It was in the light of the makeup of the\n\nKESAVANANDA v. KERALA (l'aganmohan Reddy, J.) 521\n\nmembers and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It could not be imagined that any one would have suggested anything to the contrary.\n\nIn respect of the Directive Principles, though every one recognised these as of great importance, Shri B. N. Rau made several attempts to\n\nperrnade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did not succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his note of March 14, 1947, made a distiriction between the Directive Principles and fundamental rights and said that it is impossible to equate those\n\nthough it could IliOt be denied that they were important. There can be no doubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which\n\npolitical democracy has no meaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the country. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive IP take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive Principles can only be given effect IP, if fundamental rights are abrogated. If that were the dissiderata then every Government that comes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say\n\nthat since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do not think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force, yet there were others which were repressive like the Bengal Regulation III of 1818, Madras Regulation II of 1819, Bomba~ Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the\n\npeople and detain persons on iiolitical grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution coul<I not have provided for such a contingency where they can be abrogated, nor in any view, is it a necessary con- ¢omrnitant of the Jeffersonian theory that no one can bind the suc.\n\noeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then heM and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these\n\n.522 SUPREME COUllT REPORTS [1973] Supp. s.c.R.\n\nterms: \"I cannot consider the Bill of Rights to be an outworn 18th century 'straight-jacket'. Its provisions may be thought .out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many\". In 1895, famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charla that, \"this document becomes and rightly becomes .the sacred text, the nearest approach to an irrepeatable 'fundamental statute' that England has ever had''. [Pollock & Maitland, (1898) Volume I, p. 173].\n\nIn the frame of mind and with the recognitlon of the dominant 'mental make up and the silent immaculate premise of our outhook' which became the outlook of the people, the framers of our Constitution could not have provided for the freedoms inherent as a part <>f the right of civilised man to be abrogated or destroyed. The interest\n\nof the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even 'if fundamental rights are totally abrogated, it is not as if the people will be without any rights. ' They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to uhe same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a law made by the ordinary legislative \"1gency and not an amendment under Article 368; that Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential demnts o£ the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend even article. In this view of the scope of the amending power in Article 368, I looc\\d the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.\n\nThe Twenty-fifth Amendment, as the objects and rearnns of the \"Bill showed, was enacted mainly to get over the decision in the case of R. C. Cooper v. Union of India('), (hereinafter referred to as the 'Bank Nationalisation' case). The previous decisions of this Court\n\n\nKESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 523\n\nbeginning from the State of West Bengal v. Mrs. Bela Banerjee(1) on account of which the Constitution (Fourth Amendment) Act. 1955, was enacted and the subsequent cases in P. Vajravelu M udaliar v.\n\nSpecial Deputy Collector, Madras & Anr.,(') Union of India v. The Metal Corporation of India Ltd., and Anr.,(') State of Gujarat v.\n\nShanti/al Mangaldas & Ors.,(\") have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the contentions urged by the respondents, as such I do not . find it necessary to refer to them or set out the ratio of these decisions again.\n\nIt will be observed from the amendment in clause (2) of Article 31 enacted by section 2 of the above amendment that: (1) the word 'amend' has been substituted for the word 'compensation'; and (2) that the words \"or that the whole or any pm: of such amount is to be given otherwise than in cash\" have been added. The effect of the amendment is that the law now need not provide for giving 'compensation' in the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word 'amount' which has no legal concept, and as the amended clause indicates, means only cash, which would be in the currency of the country, can the lowest amount of the current coin be fixed, and if fixed, will it amount to payment in lieu of the property acquired?\n\nEver since the Constitutlion (Fourth Amendment) Act, this Court has consistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the property acquired, the Court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That po, ition has not in any way been affected by the amendment by merely substituting the word 'amount' for 'compensation', so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reason.able man, and bears no reasonable relation to the value of the property acquired, the Court is not precluded from examining it.\n\nIt has been contended that Parliament or the Legislature can either fix an amount withont setting out any principles for determining the amount or set out the principles for determining the amount.\n\n(') (1954) S.C.R. 558.\n\n( 2) (1965) I S.C.R. 614.\n\n( 3) (1967) I S.C.R. 255.\n\n(') (1969) 3 S.C.R. 341.\n\n524 SUPREME COURT REPORTS (1973]. Supp. S.c.11.\n\nIn the former case, the respondents contend that it will non be opco to the Court to examine on what principles the amount has been. fixed. If the Legislature merely names. an amount in nhe law for acquisition or requisition, it may be an arbitrary amounr, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it must necessarily be fixed on some principle or criteria. Otherwise, no questjon of fixing . an .amount would arise: it would be merely naming an amount arbitrarily. The learned Advocate-General of Maharashtra was frank enough to admit that if principles are fixed, the amount to be determined thereunder becomes justiciable; but if the amount is fixed without . stating any principles it is not justiciable. and for this reason eve1f the members of the Legislature, either of the opposition or of the ruling party, need not be told on what basis or principles. the amount has bccit fixed, lest if this was disclosed the Court.s would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the consistent view of this iCllurt, and yet it is said that if an amount is fixed without reference to :in' principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis; The Legislatur~; even in cases where it fixes an amount for the acquisition or • requisillion. of a property, must be presumed to have fixed it on some basis, or applkd some criteria or principles to determine the amount so fixed, , and, therefore. where the. law is challenged on the groun\\I of arbitrariness, illuiori.-\n\nness or of having been based on irrelevant principles o~ any .other ground that may be open to challenge by an expropriated owner, the- State will have to meet the challenge, and the Cour~ _will have to g& into these questions. This will be so even , in reswct to' .the m, anner of payment. Once it is satisfied that the challenge on the ground that the amount or the mariner of its payment is neither arbitrary pr illusory br where the principles upon which it was fixed were found ti>' bear reasonable relationship to the value of the property . acquired, the Court cannot go into the question of adequacy of the amount II> fixed on the basis of such principles.\n\nClause (2B) makes sub.clause (f) of Article 19(1) inapplicable to clause (2) of Article 31. In the Bank Natirmalifati'on case by II\n\nmajority of ten to one, this Ooort held after an exhaustive review cL all the cases beginning from A. K. Gopalan's case that .• \"If the acqui. sition is for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, presumed, but enquiry into reasonableness of the procedural provisions will not be excfuded. For instance, if a mbunal is authorised h)\" an Act to determine compensation for property compul!oriliv acquire<l,.\n\nKESAVANAJIDA ti. KEBAIA (faganmo/111n Reddy, J.) 525\n\nwithout hearing the owner of the property, t:he Act would be liable to be struck down under Article 19(1)(f)\" (p. 577).\n\nThus it will appear that where the acquisition is for a public pur. pose, wht is sought to be excluded by clause (2B) is the re:is:onabl~ ness of the procedural provisions by making Article 19( 1) (f) mapph- . cable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the auth .. rity of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, how can the expropriated owner establish that the acquisition is nor for public purpose unless there are some procedural requirements. to be complied with under the law? A notice will have to be served; he will have to be given an opportunity to contest the acquisition. Clause\n\n(2B) provides that \"nothing in su\\>.clause (f) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2)\". Docs this mean that the fundamental right to reasonable restriction of procedural nature under Article 19(1)(£) which was available against anv\n\nlaw of acquisition or requisition of property as held in the Bank Nationalisation case, is abrogated or destroyed? The answer to thi•\n\nquestion would depend upon what is the meaning to be given to the word \"affect\". Two constructions arc possible: one is that Article 19\n\n(1) (f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31 (2) or to put it in another way, any law made under Article 31(2) for acquisition or requisitioning of any property abrogates Article 19(l)(f). Secondly, clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affect• the right under Article 19(l)(f). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for i• that Article 19(1) (f) shall not affect any such law and this would imply that the bar against the application of Article 19(1) (f) to such a law may vary from a slight or partial\n\nenroachment to total prohibition or inapplicability.\n\nBut since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of \"scverability in application\" and, accordingly, clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19(1Hf). As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31(2), for a re•- sonablc notice, a hearing opportunity to produce material and other\n\n4-36 $. C. India/73\n\n326 $UPREME' COURT REPORTS (1973] Supp. S~C.ll.\n\nevidence may .be necessary to establish that a particular acquisition is not for a public purpose and for proving the value of the property and other matten that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc.\n\nThat apart, there is nothing in clause (2B), to prohibit principles of natural justice which are part of the law of the land wherein tht rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the bene- . fit of the maxim 'audi dteram partem' that no man shall be condemned unheard, a concept of natural justice, \"deeply rooted in our ancient history\", which as Bylas, J., in Cooper v. The Wadsworth Board of Works('), expressed in the picturesque aphorism, \"The laws of God and man both giive the party an opJl!Olftunity IP make his defence, if he has any\".\n\nThere is one other aspect that has been stressed by the learncJ Advocate for the petitioner, which is more in the nature of the dirr consequences that would ensue if the amendment is uphdd, namely, that the c; tizen's right to property has now been transferred into the State's right to confiscation, that acquisition under the Land Acquisition Act and under other similar. laws can be for the benefit of even Limited Companies in the private sector, and that religious freedoms guaranteed by Arts. 25 to 30 can be virtually stilled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this Court cannot prevent the consequences of a law so made. I have spd t out what can be done. The law made for acquisition under clause (2) of Arti.cle 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or company is for public purpose may be open IP challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor- General for the Union and the Advocate-General pf Maharashtra will be applicable, then at any rate that will not be a case of confiscatio!'l, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. !fhe plea that religious freedoms will be stifled also is not sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The Statr:\n\n(') 14 C.B. (N.S.) 180.\n\nKESAVANANDA ti, KEllALA (Jaganmohan Reddy, J.) 527\n\nof Madras('), that Art. 26(c) and (d) of llhe Corutitution provde that religious denominations shall have the right to own and acqwre property and administer them according to law. But that docs not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I h'.old sec. 2 of the Twenty-fifth Amendment valid.\n\nSection 3 of the Twenty-fifth Amendment has caused me considerable difficulty because on the one hand the amendment is designed to give effect to Art. 39(b) and ( c) of the Directive Principles of the\n\nState policy in the larger interest of the community, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights conferred by Arts. 14, 19 and 31, and that such a law, where it contains a declaration that it is to give effect to the above policy, shall not be called in question in any Court on the ground that it does not give effect; to such policy. The predominant articulate as well as inarticulate premise is not to hold invalid an amendment made under Art. 368, if it conforms llO the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as follows:-\n\n\"Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes\n\naway or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect tb such policy ;\n\nProvided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent\".\n\nThe learned advocate for the petitioner submits that Art. 3!C subverts seven essential features of the Constitution : (i) it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution; (ii) it subordinates the Fundamental Rights to Directive Principles of State Policy. and thus destroys one of the foundations of the Constitution; (iii) the \"manner and form\" of amendment laid down in Art. 368 is virtually abrogated, inasmuch as while the Fundamental\n\n( 1) (1971) 2 S.C.R. 790.\n\n528 sUPUME co\"tmT U:POl.TS [197~] Supp. s.c.L\n\nRights still remain ostensibly on the Stute Book and .Art. remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital fur the survival of democracy, the rule of law, and the integricy and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; ( v) Judicial Review and enfloirceability of Fundamental Rights another essential feature of llhe Constitution is desttoyed, in that the Court is prohibited from going into the question -whether the impugned law does or does not give effect to the Directive Principles;\n\n(vi) the State Legislatures which cannot othetwisc amend. fl.rt. 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States llJld not in others, depending upon the complexion of the State Government; and (vii) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles.\n\nOn behalf of the respondent-State of Kerala_; the learned Advocate• General of Maharashtta submitted \"that Art 31C was introduced because of the reversal of Guiar11t v. Slumtilal in the Bank Nationali,._ tion case which reverted, in substance, to the concept of full compen: 1ation'', and in order to \"exclude juqicial review where .the law pro.\n\nvidcd for securing the principles provided in clause (b) or ( c) of Art. 39\". There is, according to him, no delegation of power under Art. 31C on the State Legislatures. to alter. OI' amend the Constitiition, but it merely removes the restr4; tions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rightJ contained in Arts. 14, 19 and 31 of the Constitution, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In this subniission what it amounts to is only a removal of the restriction which can only be effected by making Art. 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Art. 31C the major portion of which has no connection with clause (b) or d. ( c) of Art. 39 would' protect the law, it was submit!ted \"that on the principle laid down by the Supreme Court in Akadasi Padhan v. State of Orissa(') the answer must be in the negative\", and that the proper construct; ion to be put on the declaration referred to in Art. 31C is that the impugned law must satisfy the condlrion precedent that it is designed to secure the principles specified in cl. (b) or cL (c) of Art. 39, and i£ it docs not give effect to the principles, Akdasi's case would justify the Court in reading the provision relating to declaration as not covering a case,\n\n( 1 ) (1963) Supp. 2 S.C.R. 691.\n\nKESAVANANDA v. KERALA (}ag•nmohan Reddy, J.) 529\n\nwhere only a few $:Ctlons are in 1urthcra.iice of Art. 39(b) & ( c) while others are unrelated to it. Another way of arriving at the same con clusion, according to Jilin, is that Art. 31C postulates that there must be some nexus, however remote, between the law and the directives of State policy embodied in Arn. 39(b) and ( c )'', and that \"if no reasonable person could come to the conclusion that the impugned provisions of an Act protected by Art. 31C and the declaration made under it had any connection with Art. 39(b) and ( c), the Court could hold that the Act showed that the legislature had proceeded on a mistaken view of its power, and that, therefore, the Court was not bound to give effect to the erroneous assumptions of the legislature\". The observations of Das Gupta, J., in The Provincial Transport Service v. State Industrial Court('), were cited. Answering the contention that since the principles in Art. 39(b) & (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Art. 39(b) & ( c) were designedly widely expressed but ''.that is not an objection to a law implementing those directives\" because \"public interest is a very wide ooncept and several rights are made subject to public interest,\" and that should not be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is conceded in the earlier part is withdrawn in the latter.\n\nThe submission of the learned Solicitor-General is, firstly, that Art 31C protects only law and not mere execuuve action; secondly, the law referred to therein must be made either by Parliament or State Legislature and does not i111Clude within itl; elf ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Art. 368; thirdly, the intention of the founding fathers who had enacted clauses ( 4) and (6) of Art. 31 to give effect to the Directive Principles of State policy set out in Art. 39(b) & (c), as the experience shows, could not be given effect to because of the constitutional hurdles which necessitated the Constitution (First Amendment) Act by which Art. 31A and 31B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this tOltal exclusion of Part !II is that it brings out ii; t ?n unmistakable manner the true relationship between the provisons of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achieve. ment of the goal of a society envisaged in Part IV, and whenever and , to whatever extent such a problem arose the amending process would :\n\n\n( 2) [1952] S.C.R. 889 at 997.\n\n530 SVPUME COUl.T ~TS [1973] Supp •. s.cJl.\n\nbe able to resolve it. He cited the obacrvations of Das, J., in The State of Bihar v. Maharaiadhir•ia Sir Kameshwar Singh & Ors.( 2 ), that, \"a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution,\" and of Hidayatullah, J., in his clissenting judgment in Saiian Singh's case that, \"the rights of society are made paramount and they are placed above those of the individual\". These two obsenvations, if I may say so, are torn out of context, particularly those of Hidayatullah, f., where after stressing the fact that Art. 19 by clauses (2) to ( 6) allows the curtailment of rights in the public interest, which goes to show that\n\nPart III is not. static and visualises chanite and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, \"This is as it should be\" (p. %2). It is further the case of the Union of India that the only laws which will receive the protection of Art. 31 C must disclose a nexus between the law and the objectives set out in Art. 39(b) & ( c) which is a condition precedent for the applicability of Art. 31C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review question of a political nature. As an example the learned Solidtor.General instanced a law dealing with divorce which could not be protected by a declaration nor can a law not attracting Art. 31C be protected y a declaration by merely mixing it with other laws really falling within Art. 31C with those under that Article. In such a case, therefore, the Court will always be competent to examine \"the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope (1882) 7 A.C. at pp. 838-840\". It was further averred that .if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really\n\nto accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v. Queen Insurance Company('), and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and consider the challenge of infringement of other rightls, and that there arc only three safeguards against the evil of discrimination, namely, (a) the i_ni; ate good sense of the .community and of e legislature and the adm1mstrator; (b) the proviso to Art. 31C requiring the President's assent; (c) the power of judicial review of the Courts to ·!he extent not exclu?ed, and of these, \"The first safeguard is the only real safeguard ul11mately and thefr is oo real substitute for the character of the citizens\". What is still open to the Court to examine is whether there is any violation of the provisions of Arts. 15, 16, 286 and Part XIII\n\n( 1) [1873] 3 A.C. 1090.\n\nKESAVANAN.DA II, KERALA (Jaganmohan Reddy, J.) !!31\n\n(Am. 301, 303 and 304). The exclusion of Art. 14, without excluding Arts. 15, 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Art. 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual's liberty and the exclusion of Art. 31(2) is to introduce the considerations of social justice in the matter of acquisition.\n\nIn so far as the question whether Art. 31C am?unts to. delegatio~ of amending power to State Legislature or to Parliament m its onhnary legislative capaciy is concerned, the learned Solicitor-Geneal submits that a class of legislation or a legislative field may be identified_ or categorised in several ways, for instance, with reference to the penod within which the law is passed [Art 31(4) and Art. 31(6)] or the topic of the legislation [Art. 21(2) and Art. 31A]; or the objective or purpose of the legislation [Art. 15( 4)] for the advancement of . the backward class of citizens; Art. 31(5)(ii) for promotion of health and Art. 33 for proper discipline in the forces etc. Article 31C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Arts. 15(4), 31(b)(ii) and 33.\n\nEach of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights contained in Part III. Even assuming that Art. 31C involves an clement of delegation of the amending power, he contends there is no violation of Art. 368 and the absence of non-obstante clause or the label cannot make any ditfei'ence, and since Art. 368 empowers its own amendment, it follows that Art. 31 C, if there is a partial substitution of an amending. machinery and procedure, will operate as a partial modification of Art. 368.\n\nIt is contended that Art. 31C is similar to the legislative device adopted in Arts. 31A and 31B, which was added .by the Constitution (First Amendment) Act, 1950, the first of which declared that \"Notwithstanding anything in the foregoing provisions of this Part (i.e.\n\nPart III), no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part\", namely, Part III. Article 3IB is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III.\n\nIn so far as Art. 31A was concerned, it autlrorised a law for the acquisition of an estate as defined in clause (2). Article 31B as introduced by the First Amendment protected from challenge, on the\n\n( 1) (1873) 3 A.C. 1099.\n\n532 SUPREME COURT lllPQRTS (1973]$upp. s.c.a.\n\nground of infringement of the rights in Part Ill, certain Acts enacted f~ agrarian ·:eforms which, after very careful scrutiny that they per tam to agranan reforms, were added .to the Ninth Schedule. Zamindari abolition and agrarian reform had become an article of faith of free India and in respect of which th~' Bills either were pending at the time when the Constitution was being framed or. they had been enacted into law after the commencement of the Constitution. The debates in the Constituent Assembly on Art. 31 will disclose that after postponing its consideration for nearly a year, in the end a compromise was arrived at between those who were for the acquisition\n\n. law to provide for payment of . full compensation and those who wanted the right in Art. 3l not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the\n\ninclusiKin of clauses (4) and (6) giving protection to laws made there under from being questioned in any Court; in the case of the former,\n\nto laws dealing with agrarian reforms in respect of. which Bills were pending in any of the Legislatures of the States at the commencement of the Constitution and had been reserved for the consideration of the President who subsequently assented to them an.d to those laws which were passed not more than eighteen months before the commencement of the Constitution, and if submitted within three months after such commencement 11<> the President for his certification nad been so certified by him by public notification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation o,£ the chiracter above: mentioned, but the Patna High Court had held Art. 14 was applicable and even when the appeals were pending in this Court, the Constitution (First Amendment) Act, 1950, was passed and Art. 31A and Art. 31B were added by an amendment of the Constitution. At the time only 13 Acts were added to the Ninth Schedule, but when some of the members of the Provisional Parliament wanted to add several other .Acts after the Bill had been scrutinised by the Select Committee, the Prime Minister pleaded with them oot to do so. He said :\n\n\"I would beg to them not to press this matter. It is not wit11 any great satisfaction or pleasure that we have produced this long Schedule\".\n\nThese debates animated as they wer~, make interesting reading ancl one gets the impression that what was being done was what the original framers had intended to do but could. not give effect to the object because of lacunae in the language of the Article. The Prime Minister said :\n\n\"If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system.\" •\n\nKESAVANANl>A v. KEllALA (/l!lganmohan Reddy, J.) 533\n\nShri Hussain Imam (Bihar) : \"With compensation.\"\n\nShri Jawaharlal Nehru : \"With adequate proper compensation not too much\".\n\nShri Hussain Imam: \"Adequate is quite enough\".\n\nShri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because he was against the agrarian reforms but because of the precedent tlus would create. He said : \"By this amendment to the Constitution you arc saying that whatever lcgislatiol) is passed it is deemed to be the\n\nlaw. Then why have your fundamental righs? Who ased you .to have these fundamental rights at all? You might have said : Parliament is supreme and Parliament may from time to time pass anv law in any matter it liked and that will be the law binding on the people\". In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entcrtain- -cd in respect thereof.\n\nThe First Amendment was challenged in Sankari Prasad's case, but this C'..ourt held it valid. The queskon, as we have seen earlier, was whether Art. 13(2) imposed a bar on Art. 368 from amending fundamental rights? It was held that it did not, but no contentlion was urged or agitated before it that even apart frm Art!. 13(2), the amending power did not extend to the abrogation of fundamental rights. In Sajjan Singh's case the principal point which was urged was that the impugned Constitution (Seventeenth Amendment) Act was 1nvalid for the reason that before pre, enting it to the President for his assent the procedure prescribed, by the proviso to Art. 368 had not been followed, though the Act was one which fell within the\n\ncope of the proviso. It was, however, not disputed before the Court that Art. 368 empowered Parliament to amend any provision of t'.ie Constitution including the provisions . in respect of fundarr .• tal rights enshrined in Part Ill. Hidayatullah and Mudholkar. JJ., did, 'however, express doubts as to whether it is competent for Parliament\n\n\"to make any amendment at all to Part III of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised tihe question whether the 'f>arliament could \"go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Art. 31A in 1950 and now beyond amending the <le!inition of estate\"? (p. %9) .Even in Golaknath' s case the question\n\nraised before us was not conclusively decided. In this sllate of law to\n\nay that since Art. 3IC is similar to Art. 31A and 31B and since the latter were held to be valid in Sankari Prasad' s case fundamental rights could be abrogated by an amendment, would n'ot be justified.\n\n. 534 SUPllEME COURT llEPjlllTS [1973] Supp. s.c.ll,\n\nIt may be observed that both in Sajjan Singh's case and Golaknath's case one of the grounds which was taken into consideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case the majority had held that Parliament could not by amendment under Art. 368 affect fundamental r:ights,. the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest Bench. constituted. so far and has been fully argued, this aspect can be reconsidered. In this regard Gajendragadkar, C.J., while considering the question of stare decisis, observed in Sajjan Singh's case at pp. 947-948) :\n\n\"It is true that th~ Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decisiOlll of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared t<> review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context,\n\nand one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of substantial and compelling cliaractcr make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them.\"\n\nI have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has not remained unchallenged either on the ground of Art. 13(2) preventing such amendments or on other grounds urged before us. In these circumstances, it is not correct to say that iust because the validity of Art. 31A and 31C was Sustained by this Court, though in Golaknath's case it may have been on the grounds of cxpedi, ncy, Art. 31C must also on that account be sustained. However, an analogy of other Articles like Art. 33, Art. 15(4) and Art. 16( 4) is sought to he put forward in support of the contention that a similar device has been adopted in Art, 31C. I find that in none of rhe articles to which the le.1rned Solicitor-General ha' drawn our attention, is there a total abrogation of any of the rightt as ought to be affected by Art. 31C. Art. 33 for example, resorilcts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of puHic order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the\n\nKESAYANANDA v. KEllALA (Jaganmohan Reddy, J.) 535\n\natlzcns in the Armed Forces which arc unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15(4) which was rcfrrrcd to as an example of empowerment based on objective or purpose of lcgWation, has noanalogy with Art. 31C. In the first place, Art. 15 is an exception to the classification which would have been permissible under Art. 14., for instance on the basis of religion, race; caste, sex and place of birth and hence Art. 15 prohibits such a classification in the case of citizens,\n\nand Art. 16 makes a like' provision in the case of public employment with the addition of descent, The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause (4) of Art. 15 was added by the Constitu tion (First Amendment) Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward. classes of citizens or for the scheduled castes and the scheduled tribes.\n\nClause (4) of Art. 16 \"likewise enables the State to make provision for the reservation of appointments or posts in favour of any backard class of citizens which, in the opinion of the State, is not adequately reprcssentcd in the services under the State. The effect of thesr all'lcndments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Art. 14 to the extent of its . reasonable relationship with the objects of the law, had the same not been prohibited by Art. 15(1) and Art. 16(2). These provisions do not in any way abro!(atc the right in Art. 14 and I do not think the analogy between these provisions and Art. 31C is apt.\n\nThe Directives under Art. 39(b) & (c) arc wide and indeter minatc. They affect the whole gamut of human activity vis-a-vis the society. The .State is enjoined to ensure that ownership and control of the material resources of the community arc so distributed as best to subserve the common good and that the operation of the economic system docs not result in the concentration of wealth and means of\n\npruction to t?c common detriment. These objectives are ends wh!ch may be implemented by a party in power through legislative\n\nct1on ?Y resort to any_ one of. the diverse philosophies, political\n\n1dC?logis and economic theoncs. The implementation of these obect:Ivcs s the mcns. . These theories and ideologies both political, cconom.1c and soc10log1cal may vary and change from generation tO'\n\nenerat1n and from time to time to suit the social conditions existing dunng ay particular period of history. We have in th; world ta~ countries .adopting different political systems, according to the\n\nstoncal deyelopment of economic thought, the philosophy and tdcolpgy which is considered best to subserve the common good of:\n\n:536 SUPlll!Mir COURT lll!p0RTS [1973] Supp. s.c.ll.\n\n-that particular society. There is no standardi11ation, and what is good\n\nfor the, !)nc country may not be suitable to another. The accelerating technological advance and the exploitation of these development and .discoveries indicate the economic thought prevalent in that society. 'The various theories are, therefore, related to the delopmcnt and the _practical mew which are adopted for achieving the ends. In .a developing country such as ours, where millions arc far below the stan- .dard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved.\n\nIt is, therefore, the duty of the State to devise ways and means ot\n\nachieving the ends. A Government which comes to power with a particular political philosophy and cconmµic theory as having been\n\ndorsed by the electorate, has to give effect to llhat policy in the manner which it considers best to subservc the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not with.in the province of Courts tlJ .examine as to. whether they in fact subserve tese ends as \"otherwise ·\n\nthere would be a conflict between the Judges' and Parliament as to whether something was good for the country or not, and the whole machinery of justice was not apj:>roprµitc for that consideration\" (See Liyanage' s case at p. 267). The Government and Parliament or the Government and Legislature of a State have, within the sphere allotted to each other, the undoubted right to embark on legislative action which they thipk will ensure rhc common good, namely, the happiness of the greatest number and so they have the right to make mistakes and retrace any steps taken earlier to correct soch mistakes when that_ realisation dawns on them in giving effect to the above -objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The Stace, therefore, has the full freedom to experiment in implementing iu policy for achieving a desired object.: ThQUgh the Courts, as I said, have no function in the evaluation of these policies or in determining -whether they arc good or bad for the community, they havc,, h<>Wcvcr,\n\nin examining legislative action taken by the State. in furthering the ends, to ensure that the means adopted do .not conflict with the provisions of the Constitution within which the State action has to be confined. It is, therefore, necessary to keep in view. the wide fielll of. Governmental activity enjoined in Art. 39(b) & (c). in determining the reach of the means to a~!lleve the ends and the impact of these means on the Fundamental Rights which Art. 31C effects.\n\nThe impugned Art. 31C enables Parliament and the State kgis- _ 1atures to make laws unfettered by Arts. 14, 19 and 31 In respect Gf\n\n11:he wide and undefined field of objectives indicated in Art. 39(b) &\n\nKESAVANA.NDA v. Kl!llALA (/'aganm,, han Reddy, J.) 537\n\n(c). All these objectives before the amendment had. IP be achievea by the exercise of the legislative power enumerated m VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and th~ fundamental rights. The . amendi_ne?-t removes these limitations, .though the law made must sull be w1thm the legislative power conferred under the VII Schedule,· and enables.\n\nParliament and d1e State legislatures, subject to one tenth quorum. of its members present and by a simple majority, to enact laws whlch. contravene the fundamental rights conferred under Arlls. 14, 19 and: 31 and which Parliament by complying with the form and manner provided under Art. 368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Art. 39(b) & ( c) is in effect one and tile same. It is conti:nded that in conferring this power by Art. 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Art. 368 and has permitted amendments; being made without complying with ilie form and manner provided. thereunder.\n\nIt is not necessary in the view I am taking to consider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does not indicate the subject;.matter of legislation as in Art. 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said; is a.s wide and indeterminate as the term 'opera~\n\ntion of the economic system' would denote. I would prefer to consider Art. 31C as lifting the bar of the articles specified therein, and in so far as the subject-matter of the legislation is concerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power conferred on the respective legislative organ under the VII Schedule to the Constitution.\n\nIf Parliament by an amendment of the Constitution under Art. 368, cannot abrogate, damage or destroy the basic structure of the Constitution or any of the essential elements comprising that basic structure, or run counter to defeat the objectives of the ConstitutiPn declared !n the Preamble and if each and every fundamental right is an essentil featue of the Constitutie, the question that may have to be considered is wher the amendment by the addition of Article 3!C as a fundameDl&l,.D_iht in Part III of the Constitution has abrogated, damaged or dcJtroyed any c;>f the fundamental rights.\n\nArticle 31~. has 4 elements : (i) it permits tihe legislature to\n\nmke a law gtvm!l' effect to Arr:. 39(b) and Art. 39( c) inconsistenl with any of the nghts conferred by Arts. 14, 19 and 31; (ii) it per-\n\n:538 SUPREME COURT RJ!pORTS [1973] .Supp. s.CJl.\n\nmits the legislature to make a law giving effect to Article 39(b) and Art. 39( c) taking a1vay any of the rights conferred by Arts. 14, 19 :and 31; (iii) it permits the legislature to make a law giving effect to Art. 39(b) and (c) abridging any of the rights conferred by Arts. 14, 19 and 31; and (iv) it prohibits calling in question in any Court such -a law if it contains a declaration that it is for giving effect to the policy -0f State towards securing the principles specified in clauses (b) and ( c) of Art. 39 on the ground that it does not give effect to such a policy of the State.\n\nThe fist element seems to have been added by way of abundant <:aution, for it takes in the other two elements, namely, taking away and abridging of the rights conferred by Arts. 14, 19 or 31. However, it would be ultra vires the amending power conferred by Article 368. if it comprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra vires the amending power, for taking away of these fundamental rights is synonymous with destroying them. As for the third element, namely, abridging of these rights, the validity will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgement of\n\nthe fundamental rights is not the same thing as the damaging of :those rights. An abridgement ceases to be an abridgement when it .tends to effect the basic or essential conten~ of the right and reduces\n\nit to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Art. 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as Art. 31C authori$, cs or permits abridgement of the rights conferred by Art'. 19, it would be intra vires the amending power under Art. 368 as thereby the damaging or emasctt\n\nlating of these rights is not authorised. It will, therefore, be necessary to examine what exactly Art. 14 and Art. 19 guarantee.\n\nThe guarantee of equality contained in Art. 14 has incorporated the principle of \"liberty\" and \"equality\" embodied in the Preamble to the Constitution. The prohihition is not only agains~ the legislatures but also aginst the executive and the local authorities. Two concepts are inherent in this guarantee-one of 'equality before law', a negative one similar to that under the English Common Law; and the other 'equal protection of laws', a positive one under the United\n\nStates Constitution. The negative aspect is in the prohibition against discrimination and the positiYe co1, tent is the equal protection under the law to all who are situated similarly and are in like circumstances.\n\n(See Subba Rao, J., in State of U. P. v. Deoman Upadhyaya(').\n\n( 1) ( 1961) I S.C.R. 14 at p. 34.\n\nKESAVANANDA \"· .KJUlALA (}aganmohan Reddy, J.) 539\n\nThe impact of the negative content on the positive aspect has not so far been clearly discerned in the decisions of this Cour~ which has been mostly concerned with the positive aspect. Again, Subha Rao, J •.• in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Puniab(') while holding that the Patiala\n\nRecovery of State Dues Act did not offend Art. 14 of the Constitution, said at p. 395 :\n\n\"It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrie of classification is only a subsidiary rule evolved by Courts to give a practical content to the said. doctrine. Over emphasis on the dr. trine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.\" In Ram. Krishna Dalmia v. Shri fustice S. R. Tendolkar & Ors.('), Das, C. J., summed up the principle enunciated in several cases rcfred to by him, and. consistently adopted and applied in subsequent c; tSCs1 thus:\n\n\"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification mav be founded on different bases, namely, geographical, or acorduig IP objects or <>ccupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act\n\nuder consideration. It is also well established by the decisions of this Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure.\" '\n\n . In subsequent cases a further_ principle has been recognised by which Ar;.. 14 was alo not to be v10lated by two laws dealing with the same sub1ect-matter, 1£ the sources of the two laws are different.. (See\n\n( 1) (1963) 2 S.C.R. 353.\n\n{ 1) (1959) S.C.R. 279.\n\n540 SUPREME cou11.T llEP<lRTS [ 1973] Supp. s.c.It.\n\nState of Madhya Pradesh v. G. C. Mandawar(1). I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the cat.egories of classification arc never closed, and it may be that the objectives of Art. 39(b) & ( c) may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in Art. 1 + cannot be disembowelled by classification.\n\nThe lifting of the embargo of Art. 14 on any law made by Parliament or the Legislature of a State under Art 31C, by providing that no law made by these legislative orgam to give effect to the policy of the State towards securing the principles specified in clauses (b) and ( c) of Art. 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right conferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under Art. 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where it does not amount to abrogation, damage or destruction. The question is, whether the words 'inconsistent with or takes away, or', if severed. will achieve the purpose of the amendment? In what way can the abridgement of Art. 14 be effected without robbing the connt of that right? Can a law permitted under Art 31C affect persons similarly situated unequally or would equal protection of laws not be availabk to persons similarly situated or placed in like circumstances? While Art. 39 (b) & ( c) can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute fa question.\n\nIn so far as the abridgement of the right conferred by Art. 14 is concerned, it would be 11/tra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Art. 31A because the Courts had held invalid under Art. 14, the provisions of certain land reform legislations relating to compensation for the acquisition etc., of the estates.\n\nThe necessity for the exclusion of Art. 14 from being applied to' lawsunder Art. 31C is not apparent or easy to comprehen~. No law under Art. 31C could possibly be challenged under Art, 14 by, the owners G>r the holders of the property, for the reason that to treat all owners or holders of property equally in matters of compensation would be contrary to the very objects enshrined in Art 39(b) & (c). Any rational principles ~£ classification devised .for giving effect to the policies adumberated m Art. 39(b) & ( c) will not be difficult to pan the test of\n\n( 1) [1955] I S.C.R. 599.\n\nKESAVANANDA v. KUALA Uag1111mohan Retfdy, J.) 541 ·\n\nequal protection of the laws under Art 14. The exclusion of Art 14 in Art. 31A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Art. 31A were not immune from attack under Art. 14, if the measures of agrarian reforms were tainted with arbitrariness.\n\nThough this question has not been finally decided by this Court in any of the cases under Art. 31A it was raised in Balmadies Plantations Ltd. and Others v.\n\nState of Tamil Nadu(1), where the .appellants contended that it would not be open to the Government under s. 17 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1~9, o terminate by notice the right of the lessee as that would be v10lat1ve of the rights under Arts. 14, 19 and 31 of the Constitution. This Court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee's rights had been issued under s. 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna, J., speaking for the Court:\n\n\"Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to termil!ate the rights of the plantation lessees. Till such time as such a notice is given, the matter is purely of an academic nature. In case the Government decides not to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility. If, on the contrary, action is taken by the Government under Section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief.\"\n\nIt may be mentioned that in that case s. 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res integra.\n\nOn the other hand, it lends support to the view that the law can be challenged . . The decisions of this Coun in Nagpur Improvement Trust v.\n\nVithal Rao('), and the other two case.s> following it also do not affect my view that Art 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Art. 39(b) & (c).\n\nIn. the above case it was the State. which was given the power to acqwrc property for the samc; iublic purpose under two different statutes, one of them providing for lc5$C! compensation and the other\n\n( 1) (1972) 2 S.C.l. 133.\n\nSs-36 S. C. lndia/73\n\n5 4 2 SUPREME COURT REPORTS ( 1973 j Supp. S.CJI. ·\n\nproviding for full compensation. My Lord the Chief Justice, delivering the judgment o£ the Constitution Bench of seven Judges, while holding that these provisions contravened Art. 14, observed at p. 506:\n\n\"It would not be disputed that different principles of compensation cannot be formulated for lands acquired an the basis that the owner is old or young, healthy or ill, talL or short, or whether the owner has inherited the property or built it with his own efforts, or whet11er the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being io compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type\".\n\nThere was no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Art 31(2). If in two given cases siniilarly circumstanced, the property of one is taken under Art 31C and that of the other under Art. 31(2), then it will amount to discrimination and the Nagpur Improv, ment Trust case will apply. In a case of this nature, the objection is not so much to Art 14 being op. plied, but of adopting methods which run counter to Art 39(b) & (c), because the person who though siniilarly situated as that of the other is certainly favoured for reasons unconnected with Art. 39(b) & ( c ).\n\nIt cannot, therefore, be said that Art. 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Art. 39(b) and ·( c), which is professed to be the object d implementation in such a case. If no such abuse-is to be presumed, then there is no warrant for the apprehension that Art. 14 will hinder the achievement of the said Directives.\n\nThe sweep of Art. 31C is far wider than Art. 31A, and Art 14 is excluded in respect of matters where the protection was moot needed for the effectuation of a genuine and bona fid' desire of the State contained in the directives of Art. 39(b) & (c). For instance, persons equally situated may be unequally treated by depriving some in lhat class while leaving others to retain their property or in respect of the property allowed to be retained or in distributing the material re~ sources t11ereby acquired unequally, showing favour to some arid discriminating against others. To amplify this aspect more fully, it inay be stated t!13t in order to further the directives, persons may be grouped in relation to the property they own or held, or the economic power they possess or in payment of compensation .at different rates to dilf~ rent classes of persons depending on the extent or the value oE the property they own or possess, or in respect of classes of p, c; tsons tQ \\V}lom the material resources of the country arc distributed. . the object of\n\nKESAVANANDA v. K1!1IALA (faganmohan Reddy, J.)\n\nS43\n\nclauses (b) and ( c) of Art. 39 is the breaking up of concentration . of wealth or the distribution of material resources. If full compensation is paid for the property taken in furtherance of the objectives under Art. 39(b) & (c), that very objective sought to be implemented. would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Art. 14 is inapplicaJ;>le, firstly, because in respect of compensation there cannot be a question of equality, and, secondly, the exclusion thereof is not necessary J;>ecuse\n\nany law that makes a reasonable classification to further the ob3ectives of Art. 39(b) & ( c) would undoubtedly fulfil the requirement~ of Art. 14. The availability of Art. 14 will not really assist an expropriated owner or holder because the objectives of Art. 39(b) & ( c) would be frustrated if he is paid full compensation. On the other hand, he has no manner of interest in respect of equality in the distribution of the property taken from him, because he would have no further rights in the property taken from him. The only purpose which the exclusion of Art. 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the conferment or patronage etc. This right under Art. 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the avaifability of Art. 14 in respect of laws wider Art. 31C would ensure 'distributive justice', or 'economic justice', which without it would be thwarted. In this v'iew of Art. 31C vis.a-vis Art. 14, any analogy between Art. 31C and Art. 31A which is sought to be drawn is misconceive(!, because under the latter provision the exclusion of Art. 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. 1bere is another reason why there can be no comparison between Art. 31A and Art. 31C, because in Art. 31A the exclusion of Art. 14 was confined only to the acquisition etc. of the property and not to the distribution aspect which is not the subjectrnatter of that Article, whereas, as pofrited out already, the exclusion -0f Art. 14 affects distribution which is the subject-matter of Art. 39 {b) & (c).\n\nIt is not necessary to examine in detail the mischief that the abridgement or taking away of Art. 14 will cause, It is not an answer to :ay that this may not be done and abuse should not be presumed.\n\nThis may be true, but what I am concerned with is the extent of the power the legislative organs will come to possess. Once the power to do all that which has been referred above is recognised, no abuse caa be presumd. But if th.e power does not extend to destruction, damage or abrogation of the nght, the question of abuse, if any, has no relevance. !t cannot be presumed t Parliament by exercising its :amendmg power under Art. 368, intended to-confer a right on Parlia-\n\n544 SUPREME COUl\\T BEPOllTS [ 1973] Supp. s.c.11.\n\nment and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objec\n\ntives sought to be achieved under Art. 39(b) & (c) can be achieved\n\neen if this article is severed.\n\nIn respect of the exclusion of Art. 19 by Art. 31C a question was asked by one of us during the course of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of the restriction on freedoin of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate-General said he would consider and make his submissions.\n\nOn March, l, 1973, he made his submissions on the understanding that the question was asked in the context of Art. 31C which excludes the operation of whole of Art. 19 and not only Art. 19(1)(f) and Art. 19(1)(g). The learned Adve>- cate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Consl.itution had already provided for in Art. 19(2) to (6). After referring to the history and objects and reasons for enacting Constitution First, Fourth and Seventeenth Amendments, and after referring to the decisions of this Court, all of which relate to acquisition of property and have nothing to do either with freedom of speech or freedom of movement, he considered and answered the question posed under the follqwing heads as under :- ·\n\n\"(i) Generally, with reference to reasonable restrictions to which the fundamental rights conferred by Art. 19(1)(a) to (g) are subject under Art. 19(2) to (6);\n\n(ii) the reasonable restrictions to whi<:h the right to freedom of speech and the right to. move throughout the territory of India should be made subject ui.der Art. 19(2) and (5) respectively.\".\n\nUnder the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Art. 19(1) (a) to (g) are subject is narrower than all relevant social considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.\n\nN. Rau that in case of conflict between fundamental rights and the\n\nDirectives, the directives should prevail, otherwise necessary social\n\nKESAVANANDA ti. KEllALA (faganmohan Reddy, J.) 545\n\nlegislation might be hampered. This meant that the social content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of con\n\nllict with fundamental rights could arise as the social content of funda mental rights and t.he Directive Principles would be the same. Since the Constitution gave primacy to fundamental rights over the Dircc\n\ntives, making fundamental rights enforceable in a Court of law and the directives not so enforceable, the social content of the restrictions on fundamental rights wa~ placed in the framework of the enforce mcnt of rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the Constitution were enacted.\n\nThe social content of restrictions which can be imposed un<lr Art. 19(2) to (6) naturally docs not take in the injury to :he pu?hc good by dilatory litigation holding up large schemes of social legisla tion. The fundamental rights conferred by Art. 19(1) (a) to \\g) arc not mutually exclusive but they overlap. For example, the nght to move peaceably and. without arms conferred by Art. 19(1) (~) ln~Y be combined with the right to freedom of speech and expression, if those who assemble. peaceably carry placards or delivr speeches through microphones. Again, the right llo carry on. busmes~ under Art. 19(1) (g) would overlap the right to hold, _acqwre nd dispose of property, for ordinarily, business cannot be carr.1ed n w_1thout he sc of property. This consideration must be borne m mmd m cons1dermg the question why Ar~. 31C excluded the challenge to the laws protect cd by Art. 31C under the whole of Art. 19, instead of excluding a challenge only under Art. 19(1)(f) which relates to property; and Art. 19(l)(g) which relates .to business which would ordinarily re quire the use of property.\n\nUndr the scicond head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the Press, and thereafter referred to 'Press in a Dcmocracy'-Chapter X of Modem Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had come over the Press and the dictatorship of a syndicated Press. The First Amendment of the U. S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech, and ex prcssion and by judicial construction that freedom has been held to .include freedom .of the Press. But according to him the freedom of\n\nI .\n\n546 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nspeech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression, Art. 31C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business.\n\nArticle 19(1)(a) is so closely connected with Art. 19(1)(g) and\n\n(f) that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Art. 19(1)(a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a . Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement thoughout the territory of India has been clubbed together by Art. 19(5) with the right to reside and settle in any part of the territory of India, conferred by Art. 19(1)(c) and the right to acquire, hold and dispose of property conferred by Art 19(1) (f) for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any scheduled Tribe.\n\nAfter referring to the observations of Patanjali Sastri and Mukherjea, JI., in Gopal'an's case, the learned Advocate-General submitted that those observations show that if a law of land acquisition was to be protected from challenge under Art. 19(1)(f), it was necessary to protect it from challenge under Art. 19(1)(d) and (e) to foreclose any argument that the rights under Art. 19(1)(d), (e) and (£) are so closely connected that to take away the right under Art. 19 (!)(f) is to drain the rights under Art. 19(1) (d) and (e) of their practical content. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Art. 19 to the laws protected by those amendments and not merely a challenge under Art. 19(1) (f) and (g). In the result, it was submitted that Art 31C only contemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Art. 31(4) and (6) and then extended by Arts. 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which takle place after the Constitution was framed and the amending power is mended to enacting Article 31C.\n\nKESAVANANDA \"· ltl!RALA (}aganmohan Reddy, J.) 547\n\nI have set out in detail what according to the learned Advocatc- Gcneral is the basis and the raison d'etre for excludi:ng Art. 19 by Art, 31C. This able analysis surfaces the hidden implications of Art. 31C in excluding Art. 19.\n\nOn those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away; Art. 19(1) (a) to (g) is excluded on the ground that each of them have their impact on one or the other of the rights in Part Ill and since these rights are not mutually exclusive and any property and trade or business affecte<l by legislation under Art. 31C which necessarily must deal with property, if the directives in Art. 39(b) and (c) are to be given effect, will in turn, according to the learned Advocate- Gcneral, come into conflict not only with Art. 19(1)(f) & (g), but with the other sub-clauses (a) to ( e) of clause ( 1) of that article.\n\nAs far as I can see, no law, so far enacted under Art. 31A and' challenged before this Court has attempted to affect any of the rights in Art.19(1)(a) to (e), except Art. 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or t'O reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Arc .persons whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely throughout India or settle in any part of India or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seeking other employment or occupation and in that endeavour to move throughout India or. sctl\\le in any part of India? If they arc prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates.\n\nIf the law made under the directives has nothing to do with property, how does the duty to prevent the operation of the economic system from resulting in concentration of wealth and means of production, has any relevance or nexus with the movement of the citizens through out India or to settle in any part of India? Are those to whom property is: distributed in furtherance of the directive principles, ought not to be secured against infringement of those rights in property so distri• . buted by laws made under Art. 31C? It would seem that those for whose\n\nl>enefit legislation deprives others in whom wealth is concentrated them-\n\n.elves may not be protected by Art. 19 and Art. 14, if Art. 31C can rake away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic jwdcc would be meted out to diem. Nor am I ahlc\n\n548 sUPlll!ME 'COUP.T 111P01Ts [1973] Supp. s.c.R.\n\nto understand why where an industry or undertaking is taken over, ii it necessary IX> take away the right of. the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with 11he workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights. which are abridged by Art 3!C. No doubt, the recognition of the freedom of Press in the guarantee of freedom of speech and expression under Art. 19(1)(a) was highlighted by the learned Advocate-General of Maharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is sought to be broken up under Art. 39(b) and ( c) and the Printing Presses and undertakings of such a Press arc acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their f, edom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the country, which is a concomitant of Parliamentary dclllocracy? In the State of Bombay and another v.\n\nF. N. Balsara('), it was held under lite unamended clause (2) of Art. 19 that section 23(a) and Section 24(1)(a) which prohibited \"commending\" or advertising intoxicants to public were in conRict with the right guaranteed in Art. 19(1) (a) as none of the conditions in clause (2) of that Article applied. But the first Amendment has added 'incitement to an offence' as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expres.sion of the citizens.\n\nArt. 15 merely confines the right to those who are not women socially and educationally backward classes of citizens, scheduled ca~ or scheduled tribes all of whom were afforded protective discrimination. Art. 16 is again similarly conditioned. 17, 18, 23 and i4 are prohibitions which the State is enjoined to give affect to. Articles 25 to 28 which guarantee religious freedom, can be affected by Art. 31C in furtherance of directive principles because these denOlllir nations own properties, schools, institutions, etc., all of which wauld be meaningless w'ithout the right to hold property. Likewise, Arts; '19 and 30 would become hollow when Arts. 19 and 14 arc totally abrogated. The only rights left are those in Arts. 20, 21 and 22, of which Art. 22 has abridged by, reason ci clauses ( 4) to (7) by !>roviding for pr_eventive detention, which no doubt, is in the larger interest ci the security, tranquillity and i; afety of the citizens and the States. I have pointed ou~ the implications of the contentions on behail of the rcapoodcnts to show that if these are accepted, dlls country under a Constitution and a Preamble proclaiming the securing ci fundamental\n\n( 1) (1951) S.C.R. 682.\n\n.....\n\n;:~ '\n\nKESAVANANDA \"· KERALA Uaganmohan Reddy, J.) 549\n\nrisfits ID its citizens, will be without them. The individual rights which ensure political rights of the citiizcns in a democracy may have to be subordinated to some extent to the Directlive Principles for achieving social objectives but they are not to be enslaved and driven out -of existence. Such could not have been contemplated as being within the scope of the amending power.\n\nAlthough Art. 31A protected the laws coming within its purview from the rights conferred by Art. 19, such a protection could only be against the rights conferred by clauses (f) and (g) of Art. 19(1), as its subjected-matter was expressly stated to be the acquisition of or cxtinguishment or modification of rights in any esitatc as defined in clause (2) thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Art. 39(b) & (c). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in Art. 19 which relate to property and trade, business, profession or occupation.\n\nThough the expression 'economic sysl'em' is used in Art. 39(c), that article has not the object of changing the economic system generally, but is confined to only preventing concentration. of wealth and means of production to the common dctritnent. What this clause cnvisagCI\n\nis that the State should secure the operation of 'the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment. Where there is already concentration of wealth and means of production which is to the common detriment, the law under Art. 39(c) would be only to break up or regulate as may be necessary the concenrration of wealth and means .of production. All other rights arc outside the purview of Art. 31C\n\nans in this respect Art. 31A and Art. 31 C can be said to be similar in scope and no different. In my view, therefore, the learned Solicitor- Gcneral has rightly submitted that the law under Art. 31C will only operate on \"material resources\", \"concentration of wealth\", and \"means of production\", and if this is so, the rights in Art. 19(1)(a) to (e) would have no relevance and are inapplicable.\n\nWith rest to the exclusion of Art. 31 by Art. 31C, claute (1) ai Art. 31 is not in fact affected by Art. 31C, because under the latter any rights affected must be by law only. Even if Art. 31C was enacted for making laws in the furtherance of the directive principles in Art. 39(b) and (c) affecting property, those laws have to conform. to Art. 31(1) for they would be raws depriving persons of their property. Article 31C also contemplates the making of a law to give effect to the Directives in Art. 39(b) and (c). In so far as Art. 31(2)\n\n550 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nis concerned, s. 2 of the Twenty-fifth Amendment has already abridged the right contained in Art. 31(2) and a further abridgement of this right authorised by Art. 31C may amount in a given case to the destruct:iDn or abrogation of that right and it may then have to be considered in each case whether a particular law provides for such an amount for the acquisition or requisitioning of the property in question as would constitute an abrogation or the emasculation of the right under Art. 31(2) as it stood before the Constitution (Twenty-fifth) Amendment.\n\nOn the fourth element, I agree with the reasoning and conclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I alw adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also.\n\nIf the first part of Art. 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portion.s that may have to be severed are the words, \"is inconsistent witl1 or takes away, or\" and the words \"Art!cle 14\" and the part dealing with the declaration by reason of which judic'al review is excluded. The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Dardat Singh & Ors.,(') and the principles laid down by this Court in B.M.D.\n\nC!zamarbdugwalla v. The Union of India(').\n\nThe doctrine that the general words in o statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption L' that the L:g1sJ., ture does not intend to exceed its jurisdiction, is well established. In in Re. The Hindu Women's Rights to Property Act,(') and in Dau/at Singh's case it has been held that on clie general presumption the Legislature does not\n\nintend to exceed its jurisdiction, and that the Court could sever that part of the provision in excess of the power if what remained could be given effect tio. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. (See the observations of Gwyer, C. J. at p. 31). In the latter case, the proyisions of s. 13A of the Punjab Alienation of Land Act, 1900, which were ddcd by s. 5 of the Punjab Alienation of Land (Second Amendment) Act\n\n( 1 ) (1946) 73 Indian Appeals 59=(1946) F.C.R. I.\n\n( 2) (1957) S C.R. 930.\n\n( 3) [1941] F.C.R. 12.\n\nR.ESAVANANDA ~. KERALA (Jaganmohan Reddy, J.) 551\n\nNo. X of 1933, providing for the avoidence of banami transactions as therein specified which were entered into eit'her before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultr• flirts the Provincial Legislature as contravening sui>-s. (1) of s. 281 of the Government of India Act, 1935, in that in some cases s. BA would operate as a prohibition on the ground of descent alone, bur it was authorised and protected from invalidity as regards future tr.Ill\n\nsactions by sub. s.2(a) of s. 298 of the Act of 1935 as amended by s. 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of s. BA would have been ultra vire1 and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective clement by the dcletibn of the words \"either before or\" in the section and the rest of the section was left to operate. validly. Lord Thankerton, delivering the opinion of the Privy Council, observed at pp. 19-20:\n\n\"It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the the deletion of the words, \"either before or\" from s. 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate' validly.\"\n\nIn Chamarhaugwallas case, Venkatarama Aiyer, J., after referring t.o the various cases including F. N. Balsara s case accepted the principle that when a statute is in pm void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises bj reason of its subject-matter being outside the competence of the legisl~re or by reaso? of its provisions contravening constitutional prohib1t10ns. He enunciated seven rules of separability. In F. N. Balsara1\n\nca~, apart f'.on; i s. 23(a) and (b) and .s-.24(l)(a) relating to commendatJon and incitement from the definition of the word 'liquor' in s. 2(24)(a) the words \"all liquids consisting of or containing alcohol\" wer~ severed as these would include medicinal preparations. It will be seen that neither the whole subclause (a) was deleted nor the whole of clause (24) was separated. It is only the above words that were severed <llld held to make the remaining part of the definition valid.\n\nSS2 SUPREME COURT REPOllTS [1973] Supp. s.c.a.\n\nIn Corpor11tion of Calcutta v. Calcutta Tramways Co. Ltd.(') tht\n\nestion was whether s. 437(l)(b) of the Calcutta Municipal Ai:t, 1151, was invalid under Art. 19 (l)(g) in so far as it made the opiru'on ti. the Corporation. conclusive and non,.challengeable in any court.\n\nThe sub-clause (b) of s. 437(1) reads as follows:\n\n\"any purpose which is, in the opinion of the Corporation (which opiniop shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a\n\nnuisance;''\n\nThis Court held the portion in the parenthesis as violative of Art :19(l)(g). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated.\n\nThe Court held that the third proposition in the Chamarbaugwalllis ase, namely, that even when the provisions whicli are valid are distinct and separate from those which are iinvalid, if they all form part fl. a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the fai!lure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause consisting of the words \"which opinion shall be conclusive and shall not be challenged in any court\" is severable from the rest of the clause referred to above.\n\nJn the case of Kameshwar Prasad v. State of Bihar(') Ruic 4-A of the Bihar Government Serva:'.ls Conduct Rules, 1956, had provided that \"No Government servant shall participate in any demonstration ar reSQrt to any form of mike in connection with any matter pertaining to his conditions of service\". The Court held the rule violative ti Arc. 19(1)(a) and (h) in so far as it prohibited any form of demonstration, innocent or otherwise, . and as it was not possible to so read it as to separate the legal from the unconstitutional portiOn of the provisioµ, the entire rule relating to participation in any demonatration mllst be declared as ultra vires. The Court, however, did not llrike dpwn the entire Ruic 4-A, but severed only that portion which .lated co demorutration from the rest oi it. and the portion dealing with the sllrikc which was upheld continued to exist after severing the above, portion. However, in State of Madhya Pradesh v. Ranojir110 Shinde & Anr.(8) the doctrine of sevcrability was not applied. In that cue the term 'grant' was defined in 1. 2( 1) of the Madhya Pradesh\n\nAbolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between vario~ types of cash grants. This\n\n( 1) (1964) 5 S.C.R. 25. (') (1962) Supp. 3 S.C.R. 369.\n\n(') (1968) 3 S.C.R. 489.\n\n' '\n\nXESAVANANDA ti. XEllALA/ (}aganmohan Reddy, J.) 5Sl\n\nCourt did not find any basis for severing some out of the several granb. included therein and heru:c expressed the view that it is impermissibk to rewrite that clause and confine the definition to such of the c:ui grants which the Legislature might be competent to abolish. The cac is, therefore, distinguishable as the rule is inapplicable to such instaaces.\n\nI have considered the validity of Art. 31C by apply'ing the doctrine of severability although neither side dealt with this aspect in relation to Art. 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding ii. validity in enfoety. If as tlb.e petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or clestrored, the next logical step of the argument on his behalf should have been to establish that the entire Art. 31C is bad on that account, and if not, to what extent it would have been sustained by applying the doctrine of severability particularly when the severability of the declaration part of Art. 31C was very much in the forefront during the arguments. Likewise the respondents knowing what the petitioner's case is, should have examined and submitted to what extent Art. 31C is invalid on the petitioner's argument. When a question was asked. on February 19, 1973 that \"if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation\" and the ansmr was that \"the whok\n\nof the Constitution cannot be amended\", and also when a question was raised that on the language of Art. 31C it appear~ to be ineffective, neither side advanced any argument on this aspect. Nor whea the question of severability of the declaration portion was mooted oil several occasions during the arguments was any submffision made by either party as to whether such a severance is, or is not, possible. Io the circumstances, the Court is left to itself to examine and consider what is the correct posi, tion in the midst of these two extremes. In a case of constitutional amendment which has beeri enacted after following the form and manner prescribed in Art. 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valkd part can st!and on its own. It is not always in public interest to confine the consideration of the validity of a constitutional amendment to the arguments, the parties may choose IP advance, otherwise we will be constrained to interpret a\n\nCotution only in the light of what is urged before us, not what was understand it to be is the true nature of the impugned amendment Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Art. 31C to further the directiva of State Policy enshrined in Art. 39(b) and ( c). In the view I have\n\n554 SUPREME COURT REPORTS [1973] Sqpp. s.c.R.\n\n entertained, the words \"inconsistant with, or takes away or\" and the words \"article 14\" as also the portion \"and no law containing a declaration that it is for giving effect to such policy shall be calkd in question in any court on the ground that it does not give effect to such policy\" being severable, be deleted from Art. 31C. In the result, on the construction of Art. 31C after severing the portions indicated above, I hold s. 3 of the Twenty-fifth Amendment valid.\n\nOn the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief Justice has come to the conclusion that notwith- Jtanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be truck down. My karned brothers Hegde and Mukherjea, JJ., have in effect come to the same conclusion, when they hold that this amendcmnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any ot the basic elements or essential features of the Constitution will have\n\nto be examined when the validity of those Acts is gone into. With respect, I agree in effect with these conclusions which arc consistent Mth the view I have expressed in respect of Arts. 31A and 31B.\n\nI also agree that the contention of the learned Advocate for the petitioner that Art. 31B is intimately connected with Art. 31A is unacceptable and must be rejected for the reasons given in these judgments.\n\nThe question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment', will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitution (Twenty-ninth) Amendment valid.\n\nI now state my conclusions whiCh arc as follows: ( 1) On the construction placed on Arts. 12, 13 and other provisions of Part III and Art. 368, Art. 13(2) does not place an embargo on Art. ,368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath's case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision therein that the power of amendment is to be found in Art. 368 itself.\n\n(2) Twenty-fourth Amendment:\n\nThe word 'amendment' in Art. 368 does not include repeal. Parliament could amend Art. 368 and Art. 13 and also all the fundamental right~ and though the power of amendment is wide, it is not\n\nKESAVANANDA v. KERALA (]tiganmohan Reddy, J.) 555\n\nwide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential clements in the basic structure ot the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of d!.c Constitution.\n\nl'arliameJll cannot under Art. expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emas, culatC\" or destroy any of the fundamental rights or essential clement$ of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me, the Twenty-fourth Amendment is valid, for it has not changea the nature and scope of the amending power as it existed before the Amendment.\n\nTwenty-fifth Amendment:\n\n(i) SECTION 2\n\n(a) Clause (2) to Art. 31 as substituted.-Clause (2) of Art. 31 has the same meaning and purpose as that placed by this Court in the several decisions referred to except that the word 'amount' has been substituted for the word 'compensation', after which the principle of equivalent in value or just equivalent of the value of the property acquired no longer appllies. The word 'amount' which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which It is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles.\n\n(b) Clause (2B) as added.-On the applicability of Art. 19(1)(f) to clause (2) of Art. 31, the word 'affect' makes two constructions possible, firstly, that Art. 19(1)(f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Art. 19(l)(f). The second construction which makes the amendment valid is to be preferred, and that clause (ZB) by the adoption of the doctrine of severability in application is restricted to abridgement and not abro gation, destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under Art. 31 (2); for, a reasonable notice, a hearing opportunity to produce material and other evidence, may be necessary\n\n556 SUPREME COUilT REPORTS [1973] Supp. s.cJl.\n\nto establish that a particular acquisition is nor for public purpose and for providing the value of the property and other matters that may be involved in a particular prinCiple adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, s. 2 of the Twenty-fifth Amendment is valid.\n\n(ii) SECTION 3 OF THE TWENTY-FIF'rn AMENDMENT\n\nNew Art. 31C is only valid if the words \"inconsistent with or takes away or\", the words \"article 14\" and the declaration portion \"and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it doe~ not give effect to uch policy\", are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Arts. 19 and 31, so as to enabk laws made under Art. 31 C to further the directives enshrined in Art. 39 (b) & ( c). In the result on the construction of Arr. 31C, after severing the portions indicated above, I hold s. 3 ot the Twenty-fifth Amendment valid.\n\n( 4) Twentyninth Amendment:\n\nThe contention that Arts. 31A and 31B are inter-connected is unacceptable and is rejected. The Constitut!ion (Twenty-ninth) Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the fundamental rights in Part III or the basic element's or essential features ot the Constitution will have to be examined when the validity of those Acts is challenged.\n\nThe petitions will now be posted for hearing before the Constitution Bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own costs.\n\nPALEKAR, J. The facts leading to this petition have been stated in judgment delivered by my lord the Chief Justice and it is not therefore necessary to recount the same.\n\nIn this petition the constitutional validity of the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the-recently passed Con..iitution Amendment Acts, he has also challenged the validity of theS<> Acts. They arc :\n\n(1) The Constitution 24th Amendment Act, 1971;\n\n(2) The Constittsdon 26th Amendment Act, 1971 and\n\n(3) The Constitution 29th Amendment Act, 1972.\n\nKESAVANA!'DA v~ KEIV.LA (Palekar, J.) 551\n\nThe . crucial point involvoo is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Constitution.\n\nBy the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this Coun with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of lndia(1) the Constitutional Bench of five Judge~\n\nof this Coun unanimously held that fundamental rights could be abridged or taken away by an amendment of the Constitution under\n\nArticle 368. In the next case of .Saijan Singh v. State of Rajasthan('} a majonty of three Judges expressed the view that Sankari Prasad'.r\n\n.e was correctly decided. Two Judges expressed doubts about that\n\n'View but considered that it was not mcessary to dissent from the decision as the point was not squarely before the court. In the third case namely Golak Nath v. State of Puniab(') the. view taken in. the earlier cases by eight Judges was overruled by a majority ofsix Judges to five .. The majority held that Parliament had no power to amend the Constitution under Article 368 so as to abridge or take away the fundamental. rights, one of them (Hidayatullah, J), who\n\ndelivered a separate judgment, expressing the view that this could\n\nnot be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In tHis state of affairs . the Union Government was obliged lb take a defini~ stand. It\n\nwould appear that the Union Government and the Parliament agreed: with the view taken in Sankan Prasad's case by the majority in Sajjan Singh's case and the substantial minority of Judges in Golak Nath's case. They were out of sympathy with the view adopted by the\n\nmajority fa Golak Nath's case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (!) that nothing in Article 13 applied to an amendment to the Constitution made under Article 368; (2) that Article 368 did not merely lay down the procedure for a constitutional amendment but also contained the power to amend the Constitution; (3) that the Parliament's power under Article 368 was a constituent power as distinct from legislative power; (4) that this power to amend included the power to. amend by way of addition, varia, tion or repeal of any provision of. the Constitution.\n\n( 1) [1952] S.C.R. 89.\n\n( 2) [1965] (1) S.C.R. 933.\n\n( 8) [1967] (2) S.C.R. 70l. 36-36 S. C. India/73\n\n558 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.\n\nAfter passing the 24th Amendment the other two amendments were pqssed in accordance with the Con.stitution as amended by the 24th Amendment.\n\nln his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak Nath with supplemental arguments. In any event, he further contended, the power of Parliament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the core of these rights was impermissible.\n\nThe argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarlficatory 24th Amendment but also under the unamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr. Palkhivala with regard to essential features and basic principles of the constitution.\n\nWe are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majo. rity view in Golak Nath was not correct. A fuller bench of 13 Judges was, therefore, constituted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted; because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament could not increase its power to do so by the device of amending Articles 13 and 368 whether one calls that amendment cliarificatory or otherwise. The\n\nreal question is whether the Constitution had granted Parliament the power to amend the Constitution in that respect, because, if it did .not, no amendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment.\n\nSince fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (R.iziasthan) Ud. v. he State of Raias- Jhan and others,(') thoroughly acquainted with the Constitutions and Constitutional problems of the more important countrie1 in the world,\n\nespecially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what constitutions were\n\n(') [1963] I S.C.R. 491 at p. 539, 540,\n\nKESAVANANDA v. KERALA (Palekar, J.) 559\n\nregarded as \"Flexible\" constitutions and what constitutions were regarded as \"rigid\" constitutions. They further knew that in all modem written constitutioll.$ special provision is made for the amendment of the constitution.\n\nBesides, after the Government of India Act, 1935 this country had become better acquainted at first hand, 'both with the Parliamentary syitem of Government and the frame of ; i Federal constitution with distribution of powers between the centre\n\nand in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi - Federal constitution which adopted the Parliament1ry System of Government based on adult franchise both at the centre and in the States.\n\nThe two words mentioned above 'flexible' and 'riwd' were first -coined by Lord Bryce to describe the English constitution and the American constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885.\n\nMany generations of lawyers, thereafter, who looked upon Dicey as <me of the greatest expositor~ of the law of the constitution became familar with these words. A 'flexible' constitution is one under which every law of every description (including one relating to the -constitution) can legally be changed with the same ease and in same manner by one and the same body. A 'rigid' constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). See 'Dicey's Law of the Constitution 10th eclition, 1964 p. 127. It will be noted that the emphasis is on the word 'change' in denoting the distinction between the two types constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King(') used the words 'uncontrolled' and controlled' for the words 'flexible' and 'rigid' respectively which were current then. He had to examine the type of constitution Queensland possessed, whether it was a 'flexible' constitution or a 'rigid' one in order to decide the point in controversy. He observed at page 703 'The first point which requires consideration depends upon the distinction bet- . ween constitutions the terms of which may be moclified or repealed with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality and in some cases by a specially convened assembly.' He had to do that because the distinction between the two types of constitutions was vital to the decision of the controversy before the privy Council. At page 704 he further said 'Many different terms have been employed. in the text-books to distinguish these two contrasted forms of constJtution. Their special qualities may perhaps be exhibited as clearly by\n\nlling the one a 'controlled' and the other an 'uncontrolled' constitu-\n\n( 1) [1920) A.C. 691.\n\n560 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\ntion as by any other nomenclature'. Perhaps . th.is was an apology for not using the words 'rigid' and 'flexible' which were current when he delivered the judgment. In fact, sir John Simon i11 the cgurse of his argument in that case had used the words 'rigid' and 'flexible' and he had specifically referred to 'Dicey's Law of the Constitution' Strong in his text, booki on Modem Political Constitution, Seventh revised edition, 1%8 reprinted in 1970 says at p. 153 \"The sole criterion of a rigid constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as. to how it was to be changed. If in the Constitution there are no such directions; or if the direc, tions, explicitly leave the Legislature a free hand, then the constitution is 'flexible'.\n\nThe above short disquisition into the nature of constitutions was necessary rn order to show that when our constitution was framed in 1949 the framers of the constitutiOn knew that there were two constrasted types of democratic constitutions in vogue in the worldone the 'flexible' type which rould be amended by the ordinary procedure governing the maki, ng of a law and the. other the 'rigid' type which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt the 'flexible' or the 'rigid' ? On an answer to the above question some important consequences will follow which are relevant to our enquiry.\n\nOur constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council. . Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters contained in List I of the Seventh Schedule and the State Legi$laliures with regard to thooe in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these\n\nbodie,. by Articles 245 to 248 and the law making procedl}CC for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the 'Amendment of the Constitution' as one of the subject matters of legislation for oi.ther the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the constitution in the first XIX parts covering '367 Articles, the constitution makes special provision for the 'Amendment of the Constitution' in Part XX in one single Article, namely, Article '368. A spCcial procedure is provided for .amendment which is not. the same as the one provided fot making ordi-\n\nKESAVANANDA v. KERALA (Palekar, J.) 561\n\nnary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, l)lld in case of an impasee between the two Houses of Parliament, by a majority voto at a joint sitting. All that is neces,.1ary is that there should be a co ram which we understand is 10% of the strength of the House and if such a coram is avaiilable the two houses separately or at a joint meeting, as the ca~ may be, may make the law in accordance with its legislative procedure laid down in Art'1cles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Artices 368 however, a different and special procedure is provided for amending the constitution. A Bill has to be introduced in. either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible.\n\nIn the case of certain provisions of the Coru; titution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is clifferent and more exacting or restrictive than the one by which ordinary laws arc made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of makmg the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our constitution is a 'rigid' or 'controlled' constitution because the Constituent Assembly has \"left a special direction as to how the constitution is to be changed.\" In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the constitution or, in other words, it writes itself into the constitution.\n\nThe above discussion will show that the two separate procedures one for law making and the other for amending the constitution were not just an accident of drafting. The two procedures have been delibarately prov'1ded to conform with well-know constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure. 1 he word 'constituent' is so well\"known in modern Political constitutions that it is defined in the dictionaries as\n\n\\ 562 SUPREME COURT IU!POl.TS (1973) Supp. S.C.ll,\n\n'able to frame or alter a constitution.' And the power to frilme or alter the constitution is known as constituent power.\n\nSee The Concise: Oxford Dictionary.\n\nWhere then in our constitution lie the legis, lative power and the constituent power? The legislative power is given specifically b} Articles 245 to 248, subject to the constitution, and these Articles are found under the heading 'Distribution of legislative powers'. That alone is enough to show that these artides do not deal with the constituent power. The point is important because the leading majority judgment in Golak Nath's case proceeds on the footing that the power lies in Article 248 read with the residuary entry <Jl in List I of the: Seventh Schedule. That finding was basic to the decision because unless an amendment of the constitubion is equatci! with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it wa.s nor easy to iiivoke the bar of Article\n\n13(2). Mr. Palkhivala says that he is indifferent as to whether the power is found in Article 248 or elsewhere. But that does not conclude the question because if we agree with the view that it falls in Article 248 the decision that an amendmqit abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13(2) would be unassailable.\n\nIn Golak Nath's case Siibha Rao, C. J. who spoke for himselt and his four learned colleagues held that the power to amend the constitution wa5 not found in Article 368 but in Article 248 read with the residuancy entry <n of List I of the Seventh Schedule. The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J, on the other hand, held that Article 368 did not give the power to any particular person or persons and that i£ the named authorities acted according to the Jaw of Article, th.e result of amendment was achieved. And if the procedure could be deemed to be a .. power at all it was a kgislative power, sui generis, to be found outside the three lists in Schedule Seven of the constitution. In other words, six learned Judges did not find the power in the residuary entry <Jl of List I, while five found it there. We have, therefore, to sec whether the view of. Subba Rao, C. J. and his four colleagues who held that .the power lay in Article 248 read with the residuary entry <J7 is correct. In my view, with respect, it is ru>t.\n\nArticle 368 is one slngle article in Part XX entitled. 'The amendipent of the Constitution.' It is a special topic dealt with by that Part.\n\nIn other articles like Articles 4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the Parliament to amend specific provisions 'by law' i.e., by adopting the ordinary procedure of legislation.\n\nUSAVANANDA v. KEllALA (Palekar, J.) 563\n\nthough it altered certain provisions of the constitution. The alteration$ are 'a faw' made by .the Parliament and, therefore, liable to be struck down, unless specifically saved, in case of inconsistency with the provisions of the constitution. Secondly in every such case a provision is deliberately added explainio.g that the amendment so made by law is not to be deemed an amendment of the constitution for the purpose of Article 368.. The warning was necessary to emphasise that an amendment of the constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made 'by law' by the Parliament. The speeial quality flowed from the fact that tlic Parliament and the States which were to partieipate in the process performed not their ordinary legislative function but a special .function known in all Federal or quasi-federal or controlled constitutions as a 'constituent' function. The differ cnce between the ordinary function of making law and the function of amending the constitution loses its sign.ificancc i.ri the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written constitution of the Unitary type. These bodies can amend a constlitutional law with the same ease with which they can make an ordinary law. The reason is that their constitutions arc 'flexible' constitutions. But in countries which have\n\na written constitution which is a 'rigid' or 'controlled' constitution the constitution is liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the constitution are regarded as exercising con•tituent power to distinguish it from the power 'they exercise in making ordinary legislation under the constitution. So far as we arc concerned, our constitution gives specific powers of ordinary legislation to the Parliament and the State legislatures in respect of well demarcated subjects' But when it comes to the amendment of the constitution, a special procedure has been prescribed in Article 368. Since the result of folli:>wing thcspccial procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function 'in accordance with Article 368: with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles. 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the 'proposed amendment shall become part of the constitution, which is the substantive part of Article 368. Therefore,. the peculiar or special power to amend the constitution is to be so11ght' in Article 368 only and not elsewhere.\n\n:564 SUPREME COU!lT REPORTS [1973] Supp. s.c.R.\n\nThen again if the constituent assembly had regarded the power to amend the constitution as no better than ordinary legislative power the framers of the constitution who were well-aware of the necessity to provide for the power to amend the constitution would not have failed to add a specific entry to that effect in one or the other of the 'lists in the Seventh Schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a spedal setting in Part XX of the constitution is eloquent of the fact that the power was not to be. sought in the residuary entry or the residuary Article 248.\n\nIn this connection it may be recalled that in the Draft Constitution Article 304 had a separate provision in clause 2. Clause 1 of that article fairly corresponds with our present article 368. In clause 2 power was , iven to the States to propose amendments in certain matters\n\narid Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the constitution was not a specific imbject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in clause 2 of Article 304 of. the Draft Constitution it is only reasonable to hold that the power of. Parliament to amend the rest of the constitution was to be found in Article 304 (1) which corresponds to the present Article 368.\n\nMoreover the actual wording of Article 245 which along with Articles 246 to 248 comes under the topic \"Distribution of legislative powers\" is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to makt laws on Parliament and the Legislatures ot the State for and within the territory allocated to them.\n\nHaving conferred the power, Articles 246 to 248 distribute the subject matters of legislation in respect of which the Parliament and the State Legislatures have power to make the laws referred to in .Article 245. But there 'is an important limitation on this power in the governing words with which Article 245 commences. It is that the power was subject to the provisions of the constitution thereby lifting the constitution above the 'laws'. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be \"subject to the provisions of the constitution\" which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the constitution which is the supreme law of the land. A law is inconsistent with the provision of\n\nKESAVANANDA v. KERALA (Palekar, J.) 565\n\nthe con.stitution when, being given effect to, it impairs or nullifies the provision of the constitution. Now no simpler way of impairing or nullifying the constitution can be conceived than by amending the text of the provision of the constitution. Therefore, since a law amending the text of a constitutional provision would necessarily entail impairing or nullifying. the constitutional provision it would contravene or be inconsistent with the provision of the constitution and hence would be impermissible and invalid under the governing words \"subject to the provisions of the constitution\" in Article 245. It follows that a law amending the constitution if made on the assumption that it falls within the residuary powers. of the Parliament under Article 248 , read with entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, conform with the ordinary legislative procedure for making it laid down for the Parliament in Part V, Chapter II and for the State Legislature in Part VI, Chapter III of the constitution and, no other. To say that the power to make law lies in Article 245 and the procedure to make it in Article 368 is to ignore not only this compulsion, but also the fundamental constitutional practice followed in our constitution. as in most modern controlled constitutions, prescribing special1 procedure for the amendment of the constitution which is different from the procedure laid down for making ordinary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that article 368 does not speak of the power to amend but only of the procl'!lure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of tihe special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the constitution and gives it equal status with the other parts of the constitution.\n\nMoreover, if an amendment of the constitution is a law made under Article 248 read with entry 97 List I strange Tesults will follow.\n\nIf the view taken in Golak Nath's case is correct, such 'a law being repugnant to article 13(2) will be expressly invalidated so far as Part Ill of the constitution is concerned. And such a law amending any other article of the constitution will also be invalid by reason of the governing words \"subject to the provisions of the constitution\" by which article 245 commences. In that event no article of the constitution can be amended. On the other hand, if the law amending an article of the constitution is deemed to be not repugnant to the article which is amended,. then every article can be amended including those embodying the fundamental rights without attracting the bar of article 13(2) which can only come in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole of the constitution becomes unamendable, and on the\n\n566 SUPREME COURT REPORTS [1973) Supp. s.c.lt.\n\nargument that such a law never becomes repugnant to the article amended the whole of the constitution becomes amendable, in which case, we are unable to give any determinate value to article 13(2).\n\nInstead of following this complicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be correct to find it in article 368 because that is a speciaL article designed for the purposes of the amendment of the constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the constitution are in article 368.\n\nThe next question which requires to be examined is the nature of this constituent power, specially, in the case of 'controlled' or 'rigid' constitutioM A student of Modern Political Constitutions will find that the methods of modern constitutional amendment are (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions ofa Federal State; (4) by special convention; and (5) by a: combination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the constitution is given to the legislature by the Constituent As.!Cmbly the Legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152 \"The constituent assembly, knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary legislature the power to alter the constitution by its own act, and since fr cannot possibly foresee all eventualities, it must arrange for some method of amendment. In short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions.\" (emphasis supplied)\n\nAuthorities are not wanting who declare that such amending power is sovereign constituent power. Orlield in his book, the Amending of the Federal Constitution (1942) page 155 (1971 Edn.) says that in America the amending body i.s sovereign in law and in fact. Herman Finer in his book The Theory and Practice of Modem Government, fourth edition 1961 reprinted in 1965, pages 156/157 says \"Supremacy is shown and maintained chiefly in the amending process ........ Too dilficult a process, in short, ruins the ultimate purpose of the amending cla.use . . . . . . . . The amending clause is so fundamental to a constitution that I am tempted to call it the constitution itself.\" Geoffery Marshall in his Constitutional Theory ( 1971) p. 36 says \"there will in most constitutional systems, be an amending process and some \"collection\" of persons, possibly complex, in whom sovereign authority to alter\n\nKESAVANANDA v. KERALA (Palekar, J.) 567\n\nany legal rule inheres ...... Constitutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a complex specially convened majority can he discovered and labelled \"sovereign\" in almost all systems.\" Wade in his Introduction to Dicey's Law of the Constitution,\n\n10th edition says as follows at page 36 \"Federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these \"in its own sphere is co-ordinate with the others and independent of them.\" This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division.\n\nWherever that power rests, there is to he found legal sovereignty.\" Having regard to this view of the jurists, it was not surprising that in Sankari Prasad's case Patanjali Shastri, J., speaking for the court, described the power to amend under article 368 as \"soverign constitutent power\" (p. 106). By describing the power as \"sovereign\" constituent power it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word 'sovereign' is used as a convenient qualitative description of the power to highlight its superiority over other powers conferred under the constitution. For example, legislative power is subject to the constitution but the power to amend is not. Legislative activity can operate only under the constitution but the power of amendment operates ober the constitution. The word 'sovereign', therefore, may, for our purpose, simply stand as a description of a power which is superior to every on~ of the other powers granted to its instrumentalities by the constitution.\n\nThe amplitude and effectiveness of the constituent power is not impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is les, s when exercised by the ordinary legislature as required by the constitution or more when it is exercised-say by a special convention. This point is relevant because it was contended that our Parliament is a constituted\n\nbody-\"a creature of the constitution\" and cannot exercise the powcI\" of amending the constitution tO the same extent that a constituent assembly specially convened for the purpose may do. It was urged that the sovereignty stiU continues with the people and while it is open to the people through a convention or a constituent assembly to make any amendments to the constitution in any manner it liked, there were limitations on the power of an ordinary Parliament-'a constituted body', which precluded it from making the amendments which damaged or destroyed the essential features and elements of the constitution.\n\nWe shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which make~\n\nS68 SUPlmME COURT REPORTS [ 1973] Supp. s.c.R.\n\nthe amendment. In my view it does not.\n\nBecause as C11:plained by Strong in the passage already quoted \"In short it (i.r.. the constituent .assembly which framed the constitution) attempts to am .. 1ge for the recreation of a constituent assembly whenever suCh maturs are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions.\" Only the methods 'Of making amendments are less rigid or more rigid according tt> the\n\nhi.ltorical or. political background of the country for which the constitution is framed. For example Article V of the American constitution divides the procedure for formal amendment into two parts-proposal and ratification. Amendments may be proposed in two ways; (1) by\n\ntwo-thirds vote of both Houses of Congress ; (2) by national constillltional conventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods, (I) by the legislatures of three-fourths of the States; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratilication may be by the state legislatures or by special conventions.\n\nOne thing which stands out w far as Article V is concerned is that referendum as a proce&s of constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge vs. Woo, lsey(') \"the constitution 15 supreme over the people of the United States, aggregately and in their separate sovereignities, bcausc they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them.\" In other words, the people, having entrusted the power to amend the constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combination of the Congress and the State Legislatures and between them, though they are constituted bodies, they can qualitatively amend the constitution to the same extent as if the proposal made by the Congress was to be ratified by convention by' 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U.S. Constitution, with the exception of the twenty first which repealed the 18th amendment, have been ratified by State legislatures. Such an ameadment accomplished by the participation of the Congress and the State Legislature~ has not been held by the U.S. Supreme Court as being any less effecti've because the Congress had not obtained the ratification from a convention of the\n\nStates. The question arose in United States v. Sprague.(\") ThJt ca, e was on the 28th (Prohibition) Amendment, The amendment became\n\n( 1) (1855) 18 How 331 at 348.\n\n( 2 ) 282 U.S. 716.\n\nKESAVANANDA v. KERALA (Pale.tar, J.) 569\n\npan of the constitution on a propOsal by the Congress and ratification by the State legislatures. Objection was raised to the validity of the amendment on the ground that since the amendment affected the per.\n\nsonal libeny of the subject and under Article X the people had still retained rights which had not been surrendered to the Federal Constiru.\n\ntion, the ratification ought to have been by the representatives of the . people at a special convention and not by the State legislatures. That ' objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the conventions had to ratify the amendment. Conversely, in Hawke v. Smith(') which also related to the 18th amendment it was held that the State of Ohio could not provide for the ratification of the. 18th amendment by popular referendum since such a procedure altered the plain langiiage of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from thi$ case that the\n\nState legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a place in Article V. This establishes that an amendment of the constitutiion must be made strictly in accordance with the method laid down in the constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the constitution must be made only in accordance with the procedure laid down in the constitution and whatever individuals and bodies may think that it had better be made by a representative constituent assembly or a convention or the like is of really no relevance.\n\nUnder Article 368 the Parliament is the Principal body for amending the consutution except in cases referred to in the proviso. Parliament need not be associated with the State legislatures in making an amendment of the constitution in cases excepted from the proviso.\n\nIt cafi?ot be lost sight of that Parlianient in a very large way represents the will of the people. Parliament consists of two Houses-the Lok\n\nSabha and. the Rajya Sabha. The Lok Sabha is elected for five years on the basts of adult franchise. The Rajya Sabha is a permanent body -members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United States and the position of the Executive in relation to the Parliament and the State legislatures in India. In America the President is directly elected by the people for a term and is the Executive head oE the Federal Government. The\n\n( 1) 253 U.S. 221.\n\n570 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nCongress may make laws but the President is not responsible to the Congress. In India, however, in our Parliamentary system of democracy, as in Great Britain, the Executive is entirely responsible to the legislature. The Congress in U.S.A. will not be held responsible by the people for what the President had done in his Executive capacity.\n\nThe same is true in respect of State legislatures in America. In India people will hold the Parliament responsible for any executive action taken by the Cabinet. While in the context of a constitutional amendment it is facile to decry the position of Parliament as a constituent body, we cannot ignore the fact that in both Great Britain and New- Zealand-one with an unwritten constitution and the other with a written constitution-governed by Parliamentary democracy, the <:onstitution could be changed by an ordinary majority.\n\nWhy the power to amend the consti.tution was given in the main to Parliament is not fulJy clear. But two things arc clear. One is that as in America the people who gave us the constitution completely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our constitution that the alternative methods of referendum or convention had been considered and definitely rejected.\n\nSee Constituent Assembly Debates, Vol. VII page 43. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief controversy was as to the degree of flexibility which should be introduced into the constitution. There may have been several historical reasons for the constituent assembly's preference for Parliament. Our country is a vast continent with a very large population. The level of literacy is low and the people are divided by language, castes and communities not all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which reptesented All-India leadership at the centre should be the choice.\n\nWhatever the reasons, the Constituent Assembly entrusted the power of atnendment to the Parliament and whatever others may think about a possible better way, that was not the way which the constituent assen:bly commanded. The people themselves having ithdrawn from the process of amendment and entrusted the task to the Parliament in.stead of to any other representative body, it is obvious that the power of the authorities designated by the constitution for amending the constitution must be co-extensive with the power of a convention or a constituent assembly, had that course been permitted by the co.\n\nstirution.\n\nKESAVANANDA v. KERALA (Palekar, J.) 571\n\nWe have already shown that constituent power is qualitatively ruperior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King(') \"Indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest po.ssihle amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for C\"1Jada(2 ). 'Their Lordships do not conceive it to be the duty of thls Board - it is certainly not their desire - to cut down the provisrons of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but\n\nWithin certain fixed limits, may be mmttes< in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs\". If that is the measure of legislative power the amplitude of the power to amend a constitution cannot be less.\n\nThe width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy one modern constitutions of the world and more than fifty of them show that those constitutions have provided for their amendment. They have used the word 'amend', 'revise', or 'alter', as the case may be, and some of them have a!So used other variations of those words by showing that the constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the constitution amendable some others have made some provisions unamcndable; and two constitutions - that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the 'Amending power' to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigidbut the power is the same, namely, the amending power.\n\nThe raison d'etre for mali'ing provisions for the amendment of the constitution is the need for orderly change. Indeed no constitution is\n\nsafe against violent extra-constitutional upheavals. But the object of making such a rovision in a constitutin is to discourage such upheavals and provide for orderly change m accordance with the constitution. On this all the text-books and authorities are unanimous.\n\nThose. who frame a constitution naturally want it to endure but, however gifted they may be, they may not be able to proj'ect into the future,\n\n( 1) [1935] A.C. 500 at p. 518.\n\n(') [1930] A.C. 124, 136.\n\n572 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nwhen, owing to internal or external pressures or the social, economic and political changes in the country, alterations would be necessary in the constitutional instrument responding all the time to the will of the people in changed condiitions. Only thus an orderly change is ensured. If such a change of constitution is not made possible, there is great danger of the constitution being overtaken by forces which could not be controlled by the instruments of power created under the constitution. Wide-spread popular revolt directed against the extrc~ rigidity of a constitution is triggered not by minor issues but by majol' issues. People revolt not because the scxalled 'unessential' parts of a constitution arc not changed but because the 'essential' parts are not changed. The essential parts arc regarded as a stumbling block i:n their progress to reform. It is, therefore, evident that if for any rea-. son, whether it is the extreme rigidity of a constitutiQil or the dis. inclination of those who are in power to introduce change by amend. ment, the essential parts looked upon with distrust by the people a~ not amended, the constitution has hardly a chance to survive against the will of the people. If the constitution is to endure it must neccs. sarily respond to the will of the people by inwrporating changes sought by the people. The survival of the American constitution i$ generally attributed not so much to the amending articl~ V of the constitution but to its vagueness which was cxyloited by the great judges of the Supreme Court of America who by their rulings adapt• ed the constitution to the changing conditions. Legislative enactments, custom and usage also played a part. If the constitution were to me1ely depend upon constitutional amendments there are many who believe that the constitution would not have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern constitutions as of India learning from experience of other countries have endeavoured to make their constitution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the constitution is necessary.\n\nA good deal of unnecessary dust was raised over the question whether the amendment of the constitution would extend to the repeal of the constitution. That is an interesting subjec, t for speculation by\n\npurists and theoretical jurists, but politicians who frame a constitution for the practical purposes of government do not generally concern themselves with such speculations. The pre-eminent object in fram; ng a constitution is orderly government. Knowing that no constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen. developments, the framers wisely provide for the alteration of the constitution in the interest of orderly change. Between these tWo co-ordinates, namely, the need for orderly\n\nKESAVANANDA. v. KERALA (Palekar, J.) 573\n\ngovernment and the demands for orderly change, both in accordance with the constitution, the makers of the constitution provide for its amendment to the widest possible limit. If any provision requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the constitution the rhetor, ical question whether they contemplated the repeal of the constitution, the answer would be, in all probability, in the negative. They did not toil on the constitution for years in order that it may be repealed by the agencies to whom the amendment of the constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required change.. made in an orderly manner. Declaring their faith in the constitution they will express their confidence that the constitution which they had framed with tho knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment. To them the whole.-sale repeal would be unthinkable; but not nece$sary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current constitutional instrument would be able to absorb. This is sufficient for. the courts. to go on as it was suflicient for the framers of the constitution. Quibbling on the meaning of the word 'amendment' as to whether it also. involved repeal of the whole constitution is an irrelevant and unprofitable exercise. Luckily for us besides the word 'amendment' in Article 368 we have also the uncompliicated word 'change' in that article and thus the intention of the framers of the constitution is sufficientiy knoWil. Then again the expression 'amendment of the constitution' is not a coinage of the framers of our constitution. That is an expression well-known in modern constitutions and it is .s:ommonly accepted as. standing for the alteration, variation or change in its provisions.\n\nWhichever way one looks at the amending power in a constitution there can be hardly any doubt that the exercise of that power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later.\n\nBut having regard to the generality of the principle already discussed the meaning of the word 'amendment of the constitution' cannot be less than 'amendment by way of addition, variation or repeal of any provision of the constitution' which is the clarification of that expression accepted by the Constitutional 24th Amendment. .\n\nWe $hall now see if there arc express or implied limitations in Article 368 itself. Article 368 is found in Part XX of the Constitution which deals with <;>nly one subject, namely, the Amendment of the Constitution. 'the article provides that when the special procedure directed by it is successfully followed the constitution ttands amended S7-36 S. C. IDdia/7~\n\n574 SUPREME. COURT REPORTS [1973] Supp. S.C.R.\n\nin terms of the propQSal for amendment made in the Bill. Whatever provision of the constitution may be sought to be amended, the amendment is an Amendment of the 'Constitution. The range is the whole of this constitution which means all the provisions of the constitution. No part of the constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other provision of the constitution. There are no governing words like \"subject to the constitution\" or this or that part of the constitution. If the framers of the constitution had thought it neces- <ary to exclude any part or provisi0n of the constitution froni amendment, they ould have done so in this par.t only as was done in the American constitution. Article V of that constitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article 368. Therefore, if any pan of the constitution was intended to be excluded from the operation of the power to amend it would have normally found a place in or below article 368. As a matter of fact, in the draft constitution below Article 304, which corresp0nds to the present Article 368, there was article 305 which excluded =tain provisions fiom amendment, but later on article 305 itself was deleted. Even article 368 itself was not safe from amendment because the proviso to article 368 show$ that the provisions of the article . could be changed. Then again we find that when the people through the constituent assembly granted the power to amend, they made no reservations in favour of the people. The people completely withdrew from the process of amendment. In other words, the grant of power was without reservation.\n\nAnother thing which is to be rioted is that when the Constituent Assembly directed that amendments of the constitution must be made by a prescribed method, they necessarily excluded every other method of amending the constitution. As long as the article stood in its present form the Parliament could not possibly introduce its own procedure to amend the constitution by calling a constituent assembly, a convention or the like. Altogether, it will be seen that the grant of power under article 368 is plenary, unqualified and without any limitations, except as to the special .procedure to be followed.\n\nThe character of an amendment which can be made in a constitution does not depend on the flexibility or rigidity of a constitution.\n\nOnce the rigidity of the restrictive procedure is overcome, the constitution can be amended to -the same degree as a flexible constitution.\n\nSo far as a flexible constitution like that of Great Britain is concerned, we know there are no limits to what the Parlient can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union ·\n\nKESAVANANDA v. XERALA (Palekar, J.) 575\n\nof Scotland by appropriate provisions even in a Dentist's Act. (Law of the Constitution page 145). We know that by the statute of Westminster the British Parliament removed most of the Imperial fettrs from the self governing colonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Commdn Market. Similarly, as we have seen in McCawley's case, referred to earlier, the legislature of queensland, whose constitution was a flexible constitution, was held competent to amend its constitutional provisions with regard to the tenure. of office of the Judges of the Supreme\n\nCourt by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of th¢ constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. \"Still les.s is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between di1ferent matters dealt with by the Act, so that it becomes legitimate to say of one section: \"This section is fundamental or organic; it can only be altered in such and such a manner\"; and of another: \"Tb¥ section is not of such a kind; it may consequently be altered with as little ceremony as any other statutory provision.\" Their Lords.hips therefore fully concur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the contrary, no such character can be attributed to one Bcction of the Act which is not conceded to all; and that if ss. 15 and 16 (relating to the tenure of office of the Judges) arc to be construed as the respondents desic, the same cha.-actcr must be conceded to s. 56, which provides that in proceedings for printing any extract frcim a paper it may be shown that such extract was bona fide made\". This only emphasizes that all provisions in a constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important constitutional provision as unceremoniously as it can amend an unimportant provision of the constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127 : \"The \"flexibility\" of our constitution in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a cdmpany to make a new railway from Oxford to London.\"\n\nAs already pointed out what distinguishes a 'rigid' constitution from a 'flexible' constitution is that it requries a special procedure for its amendment. It cannot be legally changed with the same case and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally\n\n576 SUPREME COURT REpORTS [1973]' Supp. s.c.R.\n\non all provisions of the constitution without distincition. Indeed, rigid constitutions may safeguard certain provisions from amendment even by the special procedure. But where no such provision is protected the power of amendment is as wide as that of a Parliament with a exible constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a 'rigid' and 'flexible' constitution and when this rigidity is overcome by following the special procedure, the power of amendment is not inhibited by the fact that a constitutional provisions is either important or unimportant. The amending power operates on all provisions as dicctively as it does in a flexible constitution. If the nature of the provision is so important that the constitution itself provides against its amendment the amending power will have to inspect the provision.\n\nBut if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided.\n\nIn that respect the fact that the constitution is a 'rigid' constitution docs not place any additional restraint.\n\nWe have already referred to the principle underlying the Amending provision in a written constitution. In some constitutions the special procedure is very 'rigid' as in the American constitution.. In others, especially in more modem constitutions, having regard· to the disadvantages of providing too rigid and restrictive procedures; amend• ing procedures have been made more and more flexible. Our constitution which learnt from the experience of other similar con•titutions made the amending procedure as flexible a8 was reasonably PQ!!Siblc. There are several articles in the constitution which permit the Parliament to make laws which arc of a constitutional character. There are some other articles which permit amendments to certain other specified prC>- visions of the constitution by the ordinary legi$;1ative procedtire; For the rest there is article 368 which provides a much more flexible procedure than does the American constitution. The following passages from the book 'Political Science and Compru:ative Constirutioi; ial Law, Vol. I' writ.. ten by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a constitution and the need of making the amending procedure as lcu rigid as possible. At page 137 he says \"A complete constitution may be said to consist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a constirution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether' the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogrC$&on and revolution. A constitution, which may be imPerfcct and enoncous ill i4 other parts. can be easily , supplemcntcd and corrected, if only the state be truthfully organised in the constitution; but if this be not accomplished, error will accumulate until\n\nnothing short of revolution can save the life of the state''. Than at pages 150/151 commenting on the disadvantages of the amending procedure of the American constitution he remarks \"When I reflect that, while our naJ:Ural. conditions and relations have been requiring a gradual strengthening and extc..'ISion of the powers of the Central Government, not a single 1tep has been taken in this direction through the process of ameruhnent prescribed in that article, except as the. result of civil war, I am bound to conclude that the organization of the sovereign power within the constitution has failed to accomplish the purpose for which it 'Was con:structed ...... But I do say this that when a state must have recourse to war to 110lve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the constitution is imperfect; and when a state cannot so modify and amend its constitution from time to time as to express it.lei£ truthfully therein, but must writhe under the bonds of its constitution until it perishes or breaks them asunder, this is again inrusputable evidence that the law of its organization within the constitution is imperfect and false. To my mind the error lies in the arti.ficially exci:ssive majorities required in the production of constitutional changes.\" These passages\n\nexpress the deep anguish .of the jurist and his disappointment with the current process of amendment prescribed in the U.S. constitution. He gives the amending provision supreme importance in the constitution and wants it to be very much less rigid than what it is, so that the constitution can correspond w:ith the truth of contemporary, social and political changes. The whole object of providing for amendment is to make the constitution as responsive to contemporary conditions as possible because, if it is not the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon.overtake the people.\n\nThat bting the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible constitution. The latter can adjust itself more readily with changing conditions and thus discourage violent revolts. If the object of a constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be conceded that all constitutions whether flexible or rigid must have the power to amend the constitution to the same degree; and if ftexible constitutions have the power to make necessary changes .in their most cerihed constitutional principles, this power cannot be denied to a const1tut1on merely because it is a rigid constitution. The amending power in such a constitution may therefore, reach all provisions whether important or unimportant, essential or unessential.\n\nThe above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American\n\n578 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nStates, the constitutions of which are all 'rigid'. In Edwards v. Lesueur(') it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as. a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite(') only one of the judges, Judge Harrison, held the view that the word 'amendment' in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is not shared by others. In the State Constitution of California the word 'amendment' was used in addition to the word 'revision' and that may have influenced the judge to give the word 'amendment' a special meaning. The actual decision was dissented from in Edwards v. Lesueur referred to above, decided about 10 years later, and the opinion of Judge Harrison with regard to the meaning of the word 'amendment' was dissented from in Ex-parte Dillon.(') This case went to the Supreme Court of America in Dillon v. Gloss(') and the decision was affirmed.\n\nThe challenge was to the Prohibition Amendment (18th) and the court observed at p. 996 \"An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired (that provision expired in 1808) it subjects this power to only two restrictions : one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by conventions, in three fourths of the states, \"as the one or the other mode of ratification mav be proposed by the Cortgress.\" Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratific:d in three fourths of them. The plain meaning of this is ( l) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three fourths of the states shall be taken as a decisive expression of the people's will and be binding on all\". The above passage is important from two points of\n\n( 1) South Western Reporter Vol. 33, 1130.\n\n{ 2 ) 102 Cal. 118. (') 262 Federal Reporter 563 decided in 1920. (') 65 Law edn: 994.\n\nKESAVANANDA II. KERALA (Pa!ekar, J.) 579\n\nview. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose w that the people's ratification may be obtained in one of two ways, namely, by the State legislatures or by State conventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special conventions, was the ratification on behalf of the people because they were representative assemblies who could give a decisive expression of the people's will. As a malter of fact although several amendments have been made to the constitution under Article V there has been only one,. namely, the 21st Amendment which had been referred to state conventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by people's representatives who could decisively express the people's will.\n\nIf the State legislatures in America which have no responsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold that our Parliament and State legislatures are no less representative of the will of the people when they participate in the procr& of amendment of the constitution.\n\nBut reverting to the consideration of the character of \"an amendment of the constitution\", we find from decided American cases that there are no limits except those expressly laid down by the constitution.\n\nIn Ex-parte Mrs. D.C. Kerby(') decided by the Oregon Supreme Court in 1922 which concerned an amendment restoring the death penalty which had been abolished by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v.\n\nCox( 2 } were quoted with approval. \"The constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and except other provisions by declaring them not to be amendable. The general assembly, in amending the constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it esses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in its powers save by the constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named.\"\n\nIn Downs v. City of Birmingham(') the Supreme Court of Alabama held that an amendment to state constitution may extend to a change in form of the state's government, which may be in any res-\n\n(1) 103 Or. 612.\n\n( 2) 8 Ark. 436.\n\n( 3 ) 198 Southern Reporter, 231.\n\n580 SUPRl!Mll COURT REPORTS [1973] Supp. s.c.11.\n\npect except that the government must continue to be a republican form of government as required by the U.S. fderal constitution, which was inviolable, and that rights acquired under tbe constitution arc subject to constitutional provisions permitting amendw~ lts to the constitution, and no right can be acquired under the State cO!iAitution which cannot be abridged by an amendment of the constitutiOn and such a rule extends to contract and property rights. ·\n\nIn Schneiderman v. United States of America(') which was a dcnaturalization case on the ground of non-allegiance to the \"principles\" of. the American constitution, Murphy J. delivering the opinion of the court said, pp. IBOS-1809 :. 'The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the Fir~ Amendment, guaran- . teeing freedom of thought, soon followed. Article V contains procedural provisions for coIUtitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer)('). This provision and the many important and far-reaching changes. made in the constitution since 1787 refute the idea that attllthment to any particular provision or provisions is csscm:ial, or that one who advocates radical changes is necessarily not attached to the constitution.\"\n\nIn Ullmann v. Uniud Staus(8) Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination (Vth amendment) which, by the way, is recognized by our constitution as a fundamental right, quoted with approval Chief Judge Macgrudcr who said \"if it be thought that the privilege is out-moded in the conditions of this modern age then the thing to do is to take it out of the constitution, not to whittle it down by the subtle encroachments of judicial opinion.\"\n\nRecently in Whitehill v. Elkins,(') Douglas, J. delivering the opinion of the court, observed at p. 231 \"If the Federal Constitution is our guide, a person who might wish to \"alter\" our form of Government may not be cast into the outer darkllClllS. For the constitution prescribes the method of \"alteration\" by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered.\"\n\n( 1) 87 Law. ed. 1796.\n\n( 2) 65 Law. ed. 946. (') 100 Law. ed. 51 I. ('' 19 Law. ed. 2d. 228.\n\ni •\n\nXESAVANANDA v. KERALA (Palekar, J.) 581\n\nIt is unnecessary to multiply cases to appreciate the width of the amending power in a 'rigid' constitution.. Even the dictionaries bring out the same sense. The word 'amend' may have different nuances of meaning in different contexts, like \"amend once conduct'', \"amend a letter or a document\", \"amend a pleading\", \"amend a law\" or \"amend a constitution\". We are concerned with the last one, namely, what an amendment means in the context of a constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word 'amend' is otated to mean ''To make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwan it.\"\n\nSutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explmed an \"amendatory act'', as any change of the scope or effect of an e:xisting statute, whether by addition, omission, or substitution of provisions, which docs not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.\n\nIn Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word 'amendment' involves an alteration or change, as by addition, taking away or modification. It i.s further explained that the words 'amend', 'alter', and 'modify' are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word 'amendment' would include any alteration or change.\n\nFurther on ( 458) it is explained in the context of a constitution that an 'amendment' of a constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v.\n\nCity of Birmingham, already referred to, it is stated that every proposal which effects a change in a constitution or adds to or takes away from it is an 'amendment', and the proposal need not be germane to any other feature of the constitution, nor to the feature which is amended.\n\nSimilarly citing State v. Fulron(1) it is explained that the word 'amendment', when used in connection with the constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section.\"\n\nIn Standard Dictionary of Funk and W agnalls 'amendment' is defined as an act of changing a fundamental law as of a political constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the constitution.\n\n( 1) 124 N.E. 172.\n\n582 SUPllEME COURT llEPORTS [ 197J] Supp; s.c.R.\n\nIn a _Dictionary of the Social Sciaices edited by Jtilius Gould and William L. Kolb compiled under the aupkes of the Unesco p. 23 the word 'amendment' has been explained. \"The. term 'amendment', hen ever used, has the cm:e denotaWri of alteration or change. Historically the change or alteration denoted was for the sake of correction or im provement In the realities and contr0versies of politics, however; the nature of correction or improvement becomes uncertain, so that altera tin or change remains the only indisputable meaning as the term is applied. Probably the most fundamental type of formal amendment is . that which is constituted by the .alteration of the formal language of\n\nwritten constitutions. The importance of the amending procedure in a time of serious social change has been stated. by C. J. Friedrich. 'A well drawn constitution will provide for i.ts pwn amendment in such a way as to forestall as far as is humanly possible revolutionaty upheavals.\n\nThat being the case the provisions for amendmc.il! form a 'vital part of most modern constitutions.' (Constitutional Government and Democracy-Bos.ton . 1941 p. 135}.\" It will be thus seen-that having regard to the object 0£ providing an amendment clause in a modem consti tution, amendment must stand for alteration and change in its provisions.\n\nThat this was intended is clear from the wording of Article 368.\n\nThe main part ol. the Article speaks only of \"an amendment of this constitution.\" It hows how .a proposal for amendment becomes part cJ. the constitution. The language structure of Article 368 recalls the language structure of Article V of the. American constitution. There also the words used are \"amendment of this constitution\", and nothing more. No such supplementary words like \"by addition, alteration or repeal\" arc Used, Y ct we have seen that so far as Article V is concern ed an a.tl!lendment under Article V involves alteration and change, \"in the constitution. Article 368 has. a proviso which begins with these words \"provided that if such amendment seeks to make any change in -\n\n(a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chilpe,. V of Part VI, or Chapter I. of. Part XI, or (c) any of the Liars in 'the Seventh Schedule, or (d).the'representa tion of States in Parliament, or ( e) th~ provisions of this article, die amendment shall also rTa~ to be ratified by the legislatures ct.c. etc.\" The proviso, therefore, ly implies that an anieridment .under irti cle 368 seeks to make a c/umge in the provisions of th~ i:olistitutioo.: If the amendment seeks to make a change hi the piovislons referred to in sub-clause (a) to (e) then only the amendment, whicbmakes .such a change in these provisions requires ratifaatiop by the State legiA!atures.\n\nOtherwise, the amendment making a change in other .provisions does not require ratification. we have already ed thit the. meamng of the word 'change' is uncomplicated and can be easily felt and under\n\nstood. The noun 'change' according to the Shorter OxfOrd 'English Dictionary means \"substitution or succeS&iori-'of one .thing in place of\n\n) ' i;\n\nDSAVANANDA ti. uaALA (Pa/elc.11r, J.) 583\n\n:mother; substitution of other conditions; variety.\" It also means \"alteration in the state or quality of anyt; hing;. variation, mutation.\" There can be no doubt, therefore, that, ha'ting regard to the importance of the amending clause in our cO!lstitution, an amendment contemplates changes in the provisions of the constion which are capable of being effected by adding, altering or rcpcal.ing them, as found necessary, from time to time. As a matter q{_fact it is il!lpossible to concei..-: of even the llimplcst form of amendmentiwithout adding, altering or repealing. If you add some words to a provision of the constiti; tion\"you thereby alter the provision. If you substt'tutc a few words, you alter and itJ>Cal. Mr.\n\nPalkhivala admitted that he had no. objc¢on whatsdeVer to an amend.\n\nment improving the constitution s0 that! it can serve the people better.\n\nHe said that it was open to the Parliament to improve the content of the constitution by making necessary changes. All that would necessarily imply amendment by 'way cl addi, tion,. variation or repeal of a provision of the constitution which is just what the 24th amendment\n\nms to do. As a matter of fact any amendment to the consritution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a constitution, whatever his opponents may say to the cOb.tnry, will ever agree that his. proposal is retrOll'cssive. Therefore, improvement o!\" nonimprovcment cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the col\\lltitution is made, will understand.\n\nHaving seen. the importance of the amending clause in a constitution, the philosophy underl}'ing it and the amplitude of its power, it will be improper to try to cut down the meaning of the word 'amendment' in th~ expression 'mendment of the constitution' by comparing it with the same word used in other provisions of the constitution or other statutes in a different context. . Not that such a comparison will in any way serve the object with which is made, but it will amount to comparing, in effect, two worde operating on a higher plane and the other on a lower. The wdrd endment in the expression \"amendment of the constitution\" operates on a higher plane and is substantially different in connotation from the same word used on a lower plane iii some other provision of the cooatitution or any other statute in an enrircly different context. To say that the word 'amendment' in 'amendment of the constitution' is used in a low key because padding words like amendment \"by way of addition, variation or repeal\" are used else where in the constitution would be to ignore the status of tbl word 'amendment' when -used in the context of amending the cotution.\n\nIndeed the express.ion \"amendment by way of addition, variation or repeal\" would also amount to 'amendment'. But it is more appropriate ly used when some distinct provisions oE a statute arc under consideration and even the extreme limit of. a repeal of such provisi0ns is con-\n\nS84 SUPREME :COURT REPORTS [1973] Supp. s.c.R.\n\ntemplated. In the case of an amendment of the constitution this extreme limit of the repeal of the constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with \"amend by way of addition, variation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is not oruy to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the constitution added sub-para (2) in each case, but for which, what was done in accordance with sub-para (1) was likely to be misunderstood as an amendment of the constitution as described in Article 368. Textually the provisions in the Schedules would stand amended. But this amendment is carried out 'by law'. On the other hand, if even a word in any provision of the constitution is changed in accordance with Article 368, it is not described as an amendment of the provision but an Amendment of the Constitution with all its wide connotations.\n\nIn Articles 4 and 169 (2) we have just the word 'amendment' for amending certain provisions of the constitution by law, and both of them show in their context, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of \"amendment of the constitution for the purposes of arti- cle 368\" but for which they would have amounted textually to an amendment.\n\nReference was also made to the amendment made by the constituent assembly in section 291 of the Government of India Act, 1935 where similar padding words were used along with the word 'amend'. Here again it will be seen that the amendment was not an amendment of the constitution but an authorization of the Governor General to amend, by Order, certain provisions relating to the Provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of section 308 (later repealed) which provided for 'the amendment of the Act and the Orders In Council' on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the context shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council.\n\nThe structure of article 368 is now changed by the 24th amendment and the expanded expression \"amendment by way of addition. varia-\n\nKESAVANANDA v. KERALA (Palekar, J.) 585\n\ntion or repeal, any provision of this constitution\" is adopted. The language structure of the original article 368 was, however, different and there was no reference to \"the provisions\" of the constitution therein. The article commenced with the words \"An amendment of this constitution\" without reference to any provisions. Reference to \"provisions of the constitution\" having been eschewed, to pad the expression \"amendment of the constitution\" by the words \"by way of addition, variation or repeal\" would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the constitution, considered as a whole. Neither the alteration nor the repeal of the constitution, as a whole, could have been intended and hence the padding words would not have commended themselves to the Draftsmen. And becausethat was not the intenti.:>n, we have to take the first\n\nstep, off legally construing \"this constitunion\" as \"every provision of the constitution\" and then import the padding wotds with reference to the pil:)vision. . Such . a construction is perfectly permissible having regard to the general meaning of the word 'amendment'. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of-the other six judges, who agreed that the word 'amendment' was wide in its application, the 24th amendment had to clarify the positionc\n\nArticle V of the American constitution used only the words 'amendment to the constitution' without any padding like \"by way of-addition, variation or repeal\" and yet no body questions the fact that after 1789, when the constitution was framed, there have been several additions, alterations and repeals. Actually the 18th amendment was repealed by the 21st.\n\nWe thus come to the conclusion that so far as the wording of article 368 itself is concerned, there is nothing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power. Whether one likes it or not, it is not the function of the court to invent limitations where there are none. Consequences of wreckleS:S use of the power are political in character with which we are not concerned. Consequences may well be considered in fixing the\n\nsq>pe and ambit of. a power, where the text of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous,\n\nco~ have to implement the same without regard to consequences good ot bad, just or unjust. In Vacher's(') case Lord Shaw observed at page 126 \"Were they (words) ambiguous, other :;.ections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and 86 prodUce error. And \"- course this is ti frmiori the case; if a reference is\n\n(') [19U] A.Q., J87,\n\n586 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nsuggested, not to something within, but to considerations c:xtraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament\n\n\"looking before and after,\" having in view the past history of a question and the future consequences of its language, •must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Coun of law, whose duty is loyally to accept and plainly to expound the simple words employed.\"\n\nWe have to see next whether there are express limitations on the amending power elsewhere in the constitution. The only provision to which our attention is drawn in. Anicle 13(2). The anicle, before its amendment by the 24th amendment, was as fo!IO..Vs : ..\n\ni3. (1) All Jaws in force in the territory of India. immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part,· shall, to the extent of . such inconsistency, be void,\n\n(2) The State shall not make any Jaw which takes away or . abridges the rights conferred by this Part and . any law made in contravention of this clause shall, to the extent of the contravention be void.\n\n (3) In this article, unless the context otherwise requires,-\n\n.. (a) \"law\" includes any Ordinance, order,· bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law ;\n\n(b) \"laws in force\" includes laws passed or made by a Legislature or otherwise competent authority in the territory of India 'before the 'commencement of this Constitution and not previously repealed, notwithstanding that any such law or any pan thereof may not be th, en in operation either at all or in particular areas.\n\nIt is obvious from Articles 13(1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the Con.sritution of India there could not possibly be a vacuum with regard to laws and, therefore, by article 372 (I) all the laws in force in the territory of India immediately before the commencement of the Constitution were continued in force until altered or repealed or amended by a competent legislature or other competent authority. Such laws which were in force before the commencement of the constitution and were continued under article 372(1) were, in the first instance, declared void . to the extent of their inconsistency with the provisions of Part III containing the fundamental rights. As to future laws provision was made\n\nKESAVANANDA v. KERALA (Palekar, J.) 587\n\nunder clause (2) which commanded that the State shall not make a law which takes away or abridges the rights conferred by Part III and further added that any law made in contravention of the clause would be void to the extent of the contravention.\n\nIt was contended before us that an amendment of the constitution under Article 368 was ; i, law made by the State and, therefore, to the extent that it contravened clause (2) it would be void. The submission was similar to the one made in Golak Nath's case which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which. was made under Article 248 read with the residuary entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abridged any of the fundamental rights. Hidayatullah, J. who agreed with the conclusion did not agree that the power to amend was traceable to the residuary artide referred to above. Nevertheless he held \"it was indistinguishable from the other laws of the land for the purpose of article 13(2).\" The other five judges who were in the minority agreed substantially with ' ' the view taken in Sankari PraMd's case and by the majority in Sajjan Singh's case that this was not a law within the meaning of article 13(2) because, in their opinion, an amendment of the constitution under Article 368 was an act in exercise of the constituent power and was, therefore, outside the control of article 13(2).\n\nMr. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in article 368. the worst that could be said against him was that the amendment was a constitutional law and in his submission even such a law would be taken in by article 13(2). In this connection he argued that there were certain laws made in the Indian Stat~ 'or even other laws which could be properly described as constitutional laws which continued in force after the commencement of the constitution and came within the category described . in article 13(1) and, therefore, there was no reason why an amendment of the constitution which was also a constitutional law should not come within the prohibition of article 13(2). The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main constitutional statutes in accordance with which the country had been governed had been specifically repealed by article 395. No other statute of similar competence and quality survived our constitution. It may be that certain statutes of the States and other constitutional documents may have continued in force as laws under article 13(1) but it would be wrong to conclude therefrom that an amendment of the constitution. also being a constitutional law, would be deemed to have been included . in the word 'law' in article 13(2). We must be clear as to what 'constitutional !aw' means in a written constitution. Jennings in his The Law and the Constitution (fifth edition), pp. 62-05 points out that there ,\n\n588 SUPREME COURT REPOl!.TS [1973] Supp. s.c.R.\n\nis a fundamental clistinction between constitutional law and the rest of •the law and that the term 'constitutional law' is never used in the sense of including the law of the constitution and the law made under it.\n\nIn the context of the question in issue, we are concerned with our contitution which is the supreme fundamental law, on the touch-stone of which the valiclity of all other laws-those in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by article 13 (2). Other laws in force at the time of the commencement of the constitution consisting of state treaties or state statutes were not laws of this superior category. In fact artkle 372 ( 1) itself shows that if they were to continue in force they were to do so subject to the other provisions of this constitution and were liable to be altered or repealed or amended by a competent legislature or the other competent authority. All such laws though vaguely described as constitutional were made abso. lute!y subordinate to the constitution. In that respect they were nu better than any other laws which were continued in force after the: commencement of the constitution and to the exllent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which continued in foJX.e after the commencement of the constitution. Their status was entirely subordinate to the constitution. On the other hand, the stature of a constitutional amendment, as already seen, is the stature of the constitution itself and, there. fore, it would be wrong to equate the amendment of the constitution with a so-called constitutional law or document which survived after the commencement of' the constitution under article 372(1).\n\nAn amendment of the constitution cannot be regarded as a law as understood in the coni; titution. The expressions 'law', 'by law', 'make a law', are found scattered throughout the constitution. Some articles, as shown by Bachawat, J. in Golak Nath's case at pages 904 and 905, are expressly continued until provision is made by law. Some articles of the constitution continue unless provision is made otherwise by law; some continue save .as otherwise provided by law. Some articles are subject to the provisions of aIJY law to be made and some are expmsed\n\nnot to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression 'law' means a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of note that article 368 scrupulously avoids the use of the word.'law'. After the proposal for amendment, introduced in Parliament in the form. of a Bill, is passed by the two\n\nltl!SAVANANDA \"· ltEllALA (Palekar, J.) 589\n\nHouses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States . m certain cases mentioned in the proviso, the proposed amendment wntes itself into the constitution as a pan of it. It is not passed, as already pointed out, as any other law is passed by the ordinary procedure by competent legislatures. The ratification by the State legislatures by a resolution is not a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is compulsory for any other laws made by the Parliament or the State legislatures, and hei:ice advisedly the term 'law' seems to have been avoided.\n\nIn doing this the framers of the constitution might have been influenced by the view held by many jurists in America that Article V of the American Constitution to which Article 368 conforms to some extent in its language structure don't regard an amendment of the constitution as a legislative act. Finer called it, as we have already seen,. the constitution itself. \"In proposing a constitutional amendment, the legislature is not exercising its ordinary legislative function.\". Corpus Juris Secundum, V-01. 16 pp. 48, 49. \"Under Article V of the American constitution the proposal by the Congress for amendment and the ratification by the States are not acts of legislation\". Burdick-The Law of the American Constitution, pp. 40-42. \"Ratification by the States is not a legislative act\"-W eaver Constitutional Law and its Administration, p. 50.\n\nSerondly, we find in several places in our constitution the two words 'constitution' and the 'law' juxtaposed which would have been unnecessary if the word 'law' included the constitution also. For example; in the oath of the President mentioned in Article 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would \"preserve, protect and defend the laws\" instead of swearing that he would \"preserve, protect and defend the constitution and .the law\". Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would \"discharge the functions conferred on him by law\" inslled of t!i:it ''.he would discharge the functions conferred by a.pd ?, nde~ ~JS onst1tutldn' o; any other law for the time being in force . Similar. 1s the e<1se with the oaths prescribed in the I!Ird Schedule for t!Je judges of. the Supreme Court and the High Courts and t!he Comptroller d .. Auditor General. Indeed it is quite possible ; 0 urge at he ccJnstJtllon has been specblly mentioned in order tp empha- !12e its ~· 'But that is the very point. Its importance lies in Its suprelnal:y O'ief all in1s of others laws-a special position which the f; amers of the on.stttutton, thorr<'-!ghl y acquainted with federal and quasi-federal constllUtIOlls of the more important countries in the w.or11, must hae .always known. In any case they knew that the constttution was distinct from other laws. On that footing it would be\n\n38-36 S. C. India/73\n\n590 SUPREME COURT REPORTS (1973J Supp. S.C.L\n\nonly reasonably expected that if an Amendment, not being of the nature of an ordinary law, was in11ended to be included in word 'law' in article 13(2), it would have been specifically mentioned in the definition of the word 'law' given in clause 3(1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye, law, rule, regulation, notification, custom or usage in order to clarify that altliough the aforesaid are not enactments of a legislature, they were still 'law' falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the constitution was intei; ided to be regarded as 'law', not being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. las omission is, therefore, very significant.\n\nThe significance lies in the fact that the constitution pr its amendment is neither a law in force within the meaning of artlide 13( 1) con' tinued under article 372 ( 1); nor can 1t be regarded as a law made by the State within the meaning of article 13(2). The bar under article 13(2) is not merely against law but a law made by die State. A fundamental right conferred by Part III could not be taken away or abridged by law made by the \"State\". To leave no doubt as to what the 'State' means, Pair III,- containing the fundamental rights, opens with the definition of the word \"State\" in article 12. According to that definition the State includes the Government and the Parliament of India and the Government and the Legisl:uure of each of the States and all local-or other authorities . within the territory of India or under the control of the Government of India. The definition thus includes all goveq1mental organs within the territories of India d these governmental organs are either created under the constlitution or under the laws adopted by the constitution under Article 372. In other words, they arc all organs or agencies opeJ:ating under the constitution owing superior obligation to the constitution. It would be, therefore, wrong to identify 'state' in article 13(2) with anything more than the instruments created or adopted by the constitution and which arc required to work in conformity with the constitution. Nor can the word 'state' be regarded as standing for a Nation or a Conglomeration tt all the governmental Agencies. The Natipn is an amorphous conception. The bar under article 13(2) is against concrete instrumentalities of the\n\nState, instrumentalities which are capable of making a law in accordance with the constitution.\n\n. __ ,)\n\nKESAVANANDA \"· KEllALA (Palek..ar, J.) 591\n\nBy its very definition as discussed earlier, a body or set of bodies ·\"' exercising, as indicated in the constitution, sovereign constituent power whether in a 'flexible' or a 'rigid' constitution is not a governmental organ owing supreme obligation to the constitution. The bod~ or bodies operate not under the consticution but over the constitution.\n\nThey do not, therefore, while amending the constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the constitution.\n\nWe thus reach the conclusion that an amendment of the constitution is not a law made by the State and hence Article 13(2) W10uld not control an amendment of rhe constitution.\n\nThe same conclusion is arrived at by a slightly different approach.\n\nArticle 13(2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the constitution. Th\\ls it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidabilicy with reference to \\he provisions of the constitution. This is possible only when it is a law made by the organs ol the State. When an amendment is made. we have already shown, it becomes partt of the constitution, taking an equal status with the rest of the provisions of the constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which_ its voidability can be determined. Indeed, if the amendment cannot entirely lit in with some other provisions of the constitution the courts might have to reconcile the provisions, as was done in Sri Venktaramana v.\n\nThe State of Mysore(') in which the fundamental right under Article 26(b) was read subject to Article 25(2) (b) of the constitution. The point, however, is that courts have no jurisdiction to avoid one provision of the law with reference to another provision of the same law.\n\nIt becomes metely a matter of construction. It follows, therefore, that an amendment of the constitution not being liable to be avoided with refe; enc.e. to a superior law is not a !aw about which you can predicate av01dab1hty and, hence, stands outside the operation of article 13(2).\n\nIf the fundamenal rights in Part III were unamendahle, nothing would have been easier than to make a specific provision about it .in Part XX .wh.ich dealt specifically with the subject of the amendment of the const1tut10n. That was the proper place. Article V of the America1 constitution clearly indicated the two subject.s which were unamedJ ..\n\nab!~. The Draft Constitution shows that, as a matter of fact there was article 305 under the subject \"amendment of the constitutio;\" ancl tbt\n\n( 1 ) [1958] S.C.R. 895.\n\n592 SUPREME COURT REPORTS f1973] Supp. s.C.R.\n\narticle had specifically made some parts of the onstitutin unaen?\n\nable. Later, article 305 was deleted and the mam amendmg arttcle m the Draft Constitution, namely, article. 304 appeared in the garb of article 368 of the constitution with some additional subjects in the proviso.\n\nIn adopting the distinction between the 'constitution' and 'the law' the framers of the constitution did not create any new concept of the law being subordinate to the constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amendment of the constitution by a special procedure.\n\nNo body disputes that law in its widest sense includes constitutional law as it doe~ natural law, customary law or ecclesiastical law.\n\nThe point is whether in our constitution 'law' includes an \"amendment of the constitution\". As already shown our constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the constitution under article 368. This is highlighted even when certain provisions of the constitution are amended by ordinary law. As already shown articles 4, 169 and paras 7 and 22 of die Fifth and Sixth Schedules respectively permit the Parliament llO make 'by law' certain amendments in the constitution, but in every case it is further provided that such an amendment made 'by law' shall not be deemed to be an amendment of the constitution for the purposes of article 368. When such a distinction is maintained between 'law' and 'an amendment of the constitution' the same cannot be impaired by reference to the word 'law' used by the Privy Council in a more comprehensive sense in McCawley's case .and Rana Singhe's(1) case. In the former the constitution was a flexible constitution. In the latter, J:hough it was a controlled constitution. the provisi\\ln with regar<; I to the amendment of the constitution namely section 29(4) of the Ceylon (Constitution) Order in Council was. part of sectillll 29 which specifically dealt with the making of laws and. came. under, the subject heading of Legislative power and procedure. In bQth cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British\n\nParliament, the distinction between constitutional law and ordinary Jaw becomes blurred and the use of the word 'law' to describe a constitutional law. is indeterminate. We .are, however, concerned with our constitlition and cannot. ignore the distinctielll maintained by it in treating ordinary laws as different frm the amendment of the constitution under article 368. The forms of oath in the IIIrd Schedule referring\n\n001 \"constiti.ition. as by law established\" prove nothing to the contrary because as \"by iaw established\" merely means constitution \"as legally\n\n(') [1965) A.C. 172.\n\nKESAVANANDA v. KERALA (Palekar, J.) 593\n\nestablished.\" There is no indication therein of any intended dichotomy between 'law' and 'the constit11tios'.\n\nReferenee was made to the consitutent assembly debates and to the several drafts of the constitution to show how the original provision which culminated in article l3 underwent changes from time to time.\n\nThey hardly prove anything. The fact that initially article l3 \"\".as so worded as not to override the amendment of the fundamental nghts, but later the Drafting Committee drppcd rhat provision da<:s nt prove that the framers of the constitution were of the view that art1cle 13(2) should reach an amendment of the const!itution if it abridged fundamental rights. It had been specifically noted in one of the notes accompanying the first draft that -article 13(2) would not control an amendment of the constitution and, therefore, any clarification by a special provision to the effect that fundamental rights are amendable was not necessary except by way of abundant caution. (See : Shiva Rao \"The Framing of India's Constitution, Vol. IV, page 26). That was apparently the reason for deleting that part of article 13 which said that article l3 should not. come in the way of an amendment to the constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the drafting of the constitution nor their speeches (the. same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendable-rather the contrary.\n\nThe further argument that fundamental rights are inalienable natural rights and, therefore, unamcndablc so as to abridge or take them away does not stand close scrutiny. Articles l3 and 32 show that they are rights which the people have \"conferred\" upon themselves. A good many of them are not natural rights at all. Abolition of untouchability article 17), bolition of titles (article 18); protection against double. JeOpardr (arucl.e 20(2)); , Proction of children against employ- !Dent ii: factones (article 24); rrecdo_m as to attendance at religious msri:uct1on or religious worship in certain educational institutions (article 28) are not nat11ral rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in article 19 arc conferred only. on citizens and not non-citizens. Even the rights\n\nnfcrr.cd arc not m absolute terms. They arc hedged in and restricted ii: the mtcrest of the general public, public order, public morality, security f the State and. the like which shows that social and political consi- ?crat1ons are more 1.port, ant in our organized society. Personal liberty\n\nJS cut down , by prov1S1on for preventive detention which, having regard to the cond1twns prevailingeven in peace time, is permitted. Not a\n\n394 sUPDME COUllT UJGD [1973] Supp. s.c.a.\n\nfew mcmben of the constituent assembly resented the limiwions on freedoms on the ground Wt what was conferred was merely a husk.\n\nPrior to the constitution no such inherent inalienability was ascribed by law to these rights, because they could be taken away by law.\n\nThe so called natural rights which were discovered by philosophers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political constitutions only to the extent that organized society is able to respect them. That is why the constitution has speciafically said that the rights are conferred by the people on themselves and are thus, a gifa of the constitution. Even in the most advanced and orderly democratic societies in the world in which i>olitical equality is to a large extent achieved, the content of liberty is more and mote recognized to be the produca. of social an4 economic justice without which all freedoms become meaningless. To claim Wt there is equal opportunity in a society which encourages or permits great dispartics in wealth and other means of social and politi ca I advancement is to run in the face of facts of life. Freedoms arc not intended only for the fortunate few. They should become a reality for those whose entire time is now consumed in finding means to keep alive. The core philosophy of the constitution lies in social, economic and political justice-one of the principal objectives of our constitu tion as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the \"sanctity\" attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our constitution commands should be funda\n\nmental in the governance of the countty, require the state to direct its policy towards securing to the citizens adequate means of livelihood.\n\nTo that end the ownership and control of the material resources of the community may be distributed to serve the common good, and care has to be taken that the operation of the economic system docs not result in 'the concentration of wealth and means of production to the com\n\nmon detriment. See: Article8 37 liO 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the\n\nr common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights arc concencd, the unlimited freedom to hold it would have to undergo an adjustment to the demands of .the , State policy dictated by the Direc tive Principles. Deprivation of property in one form or other aiid even\n\nexpropriation would, in the eyes of many, stand justified in a democratic organization as long as those who arc deprived do not earn it by their own effort or otherwise fail to make adequate return to the society\n\nin which they live~ The attribute of 'sacredness' of property vcs in an egalitarian society. And once this is accepted and depnvauon and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right .loses its force. One cannot lift parts of . the constitution above it by ascribing ultra-constitutional virtues to them. The constitution is a legal document and if it says that the whole of it is. amendable, we cannot place the fundamental rights out of bounds of the 'amending power. It is essential to note in the present case that though the plea. was generally made on behalf of all fundamental rights, the fundamental right with which we are concerned, principally, is the right to property. It will be sajlicient to note here that in modern democracies the tendency is n0H6 recognize right to property as an inalienable natural right. We can do no better than quote here a few passages from W. Friedmann's Leafil Theory, fifth edition, 1967.\n\n\"The official doctrine of the modern :(loman catholic Church. from Rerum Novarum (1891) onwards, and of most neo-scholastic philosophers, is that the 'right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly\n\ndeny the natural law character of the right of private property and regard it (rightly as I believe) merely as a matter of social utility\" p. 357.\n\n\"When faced with the solution of concrete legal problems. . we find time and again that natural law formulae may disguise but not solve the conffict between values, which is a problem of constant and painful adjustment between competing interest, purposes and policies. How to resolve this conffict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpret1tions. And, of course, we all have to make up our minds as responsible human beings and citizeru what stand we will take, for example, in the tension between state security and individual. freedom. The danger is that by giving our faith the halo of. natural law we may claim for it an absolute. character from which it is only t<\" easy to step to the _condemnation or suppression of any different faith.\" pp. 357-358.\n\n\"The ti.me is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothcois aid much in the solution of the ag<inising problem of the litnits of obedience to positive law. p. 359;\n\n\"'the main forces in the development of modern democratic\n\nth.)ught have been the liberal idea of individual rights protecting\n\n596 SUPJU!Ml! COU.T UPORTS [1973] Supp. s.c.R.\n\nthe individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social anc! economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy.\" p. '398;\n\n\"But democratic communities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right.\" p. 399;\n\n\"But modern democracy, by the same. process which has led to the increasing modification of individual rights by social duties towards neighbours and community, has every-where had. to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State's right of taxation, its police power and the power of expropriation-subject to fair compensation-arc examples of public restrictions on freedom of property which are now universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment.\". p. 405.\n\n\"The degree of public control over private property depends largely on the stringency of economic conditions. Increasing prosperity and availability of consumer goods has led to a drastic reduction of economic controls, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed resources, and jealous of their a newly-won sovereignty, public planning and control 6ver vital r ... resources are regarlled as essential. The Constitution of the West German Republic of 1949, which reflects a blend of Amcrif can British and post-war German ideas on the economic aspects of democracv. lays down that land, minerals and means of production may be socialised or be subjected to other forms of public control by a statute which also regulates compensation. Such compensation must balance the interests of the community and those of the individual and leave recourse to law open to the person affected. Th; s still permits wide divcrgcncics of political and economic philosophy, but in the recognition of social control over property, including socialisation as a-licgitimatc though not a ncccs- ·\n\nsarv measure, it reflects the modern evolution of democratic ideas.\n\nBetween the capitalistic democracy of the United States. and the\n\nSocial democracy of India there arc many shades and variations.\n\nBut modern democracy looks upon the right of property as one conditioned by so6a1 responsibility by the needs of society, by the\n\nKESAVAN'ANDA v. KERALA (Palekar, J.)\n\nS97\n\n\"balancing of interests\" which looms so large in modem jurisprudence, and. not as preordained and untouchable private right.\" p. 406. .\n\nNor is it correct to describe the fundamental rights, including th( right to property, as rights \"reserved\" by the people to themselves.\n\nThe constitution docs not use the word \"reserved\". It says that the rights arc \"conferred\" by the people upon themselves, suggesting thereby that they were a gifl_Jlf the constitution. The constitution had, therefore, a right to take them away. This i~ indirectly recognised in Gola.k Nath's case where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly.\n\nWhen rights are reserved by the people the normal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it i~ the people, who had given the qmstitution and the rights therein, that could decide to take them away. In our oonstitution the people having entruted the power to the Parliament to amend the whole of the constitution have withdrawn theelves from the process of amendment and hence clearly indicated that there was no reservation. What the constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore, article 13(2) does not control the amendment of the constitution. On that conclusion, it must follow that the majority decision in Golak Nath's case is not correct.\n\nNo reference was made to any other provision in the constitution as expressly imposing a limitation on the Amending Power.\n\nIt was next contended that there are implied or inherent limitations on the amendatory power in the very structure of the constitution, the principles it embodies, and in its essential elements and features (described briefly as essential features). They are alleged to be so good and desirable that it could not have been intended that they were tiable to be adversely affected by amendment.\n\nSome of the essential features of the constitution were catalogued as follows :\n\n(1) The supremacy of the constitution;\n\n(2) The sovereignty of India;.\n\n(3) The integrity of the country;\n\n(4) The democratic way of life;\n\n(5) The Republi.can form of Government;\n\n( 6) The guarantee d basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the constitution;\n\n(7) A secular State;·\n\n598 SUPREME COURT REPORTS [1973] Supp. s.c.11.\n\n(8) A free and independent judiciary;\n\n(9) The dual structure of the Union and the States;\n\n( 10) The balance between the legislature. the executive and the judiciary;\n\n( 11) A Parliamentary form of Government as distinct from Presidential form of Government;\n\n(12) The amcndability of the constitution as per the basic scheme of article 368.\n\nThese, according to Mr. Palkhivala, arc some of the essential features of the constitution and they cannot be substantially altered by the amendatory process. .\n\nA question of very wide import is raised by the submission. So far as the present case is concerned, the 24th amendment docs no more than give effect to Parliament's acceptance ofthe view taken in Sankari Prasd's case, the majority in Saiian Singh's case and the minority in Golak Nath's case with regard to the nature of the amending power in relation to fundamental rights. It is clarilicatory of the original Article 368. What was itnplicit in Article 368 is now made explicit and the essence of Article 368 is retained. Therefore, there can be no objection to the 24th Amendment on the ground that any essential feature of the constitution is affected.\n\nThe 25th Amendment introduces some abridgement of the fundamental right to property. Riight to property has been subject to abridgement right from the constitution itself (Sec: Article 31(4) &\n\n( 6)) and the 25th amendment is a further inroad on the right to property. In Golak Nath's case, the first, fourth and the seventeenth amendments were held by the majority as having contravened article 13(2). Nevertheless the amendments were not struck down but permitted to continue as if thev were valid. Since I have come to the conclusion that article 13(2). does not control an amendment of the constitution, it must be held that all previous amendments to the constitution, so far made, could not be challenged on the ground of repugnancy to Article 13(2). It follows that any amendment of the constitution cannot be challenged on that ground, and that would be true not only of the 24th amendment but also the 25th amendment, and the 29th amendment.\n\nThe question still survives whether the 25th amendment and the 29th amendment are invalid bccausc,.as contended by Mr. Palkhivala, an essential feature of the aonstitution has been substantially affected. The argument proceeds on the assumption that in the ab!eJl(.c of any express limitation on the power Of amendment, all the\n\nr --\n\nKESAVANANDA \"· KEl\\ALA (Palekar, J.)\n\nprovisions in the constitution arc liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this connection, he referred to . the first amendment by which articles 15 and 19 wmJ amended and m both these cases the amendment did abridge the fundamental rights.\n\nSimilarly. he conceded that articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian poiity which could not have been ignored for long and to which the Ruling party was committed for 'a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights.\n\nAccording to him they had not reached the 'core' of the rights. In other words, his submission is that there are some very good and desirable things in the constitution. One of them is fundamental rights, and though these fundamental rights could be abridged somewhat, it was not permissible to affect by amendment the core of the fundamental rights, including the core of the right to property. For this argument he relics on the basic scheme qf 'the constitution as first promulgated and contends that y Amendments made thereafter, including the 24th Amendment, would not affect.his argument, because, according to him, every one of them, must be evaluated on the principles and concepts adopted in that basic scheme. His further submission was that if such a core of a fundamental right is damaged or destroyed by an amendment, such an atnendment is illegal and, therefore, liable to be struck down by this Court as the guardian of the constitution. It necessarily follows from the submission that Mr. Palkhivala wanted this Court to decide whether by any particular amendment the core of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this Court to undertake. It may appear as very odd that while the framers of the constitution did not think it necessary to expressly exclude even one provision of the constitution from being amended, they still intended that this Court, as the guardian of the constitution, should make parts of it unamendable by implying l'tmitations on the Amending power. Indeed this Court is a guardian of the constitution in the sense that will not permit its contravention by any of its ti.nstrumentalities, but it cannot constitute itself a guardian against change constitutionally effected.\n\nThough the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were. not liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so.\n\n'6{)0 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nwhether there was any :implied or inherent limitation on the amend- :ing power which prohibiteq such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture 'in the present case. It is not the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form •of Government has been destroyed. One of the several essential fea- 'tures listed by him is fundamental rights. Amongst fundamental 'rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them.\n\nBy that amendment chiefly two things are oought to be accomplished (1) There shall be no right to receive ''compensation', as judicially interpreted, for a State acquisition for a public purpose, but only to receive an 'amount', (2) A law made to achieve the a:ims of equitable distribution of community resources or for the prevention of concentration of wealth and means of produclion shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this Court to decide questions which are not 'in immediate controversy it would not be ]>roper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or de; troyed by amendment. But since it is argued on behalf of the State chat there can be no l:imitalions on the amending power except those expressly provided in the constitution and since that will affect our decision as to the 25th amendment, we shall have to deal briefly with the question of im- Jllied and inherent limitallions with special reference to fundamental :rights including property rights.\n\nWhatever one may say about the legitimacy of describing all the Tights conferred in Part III as essential features, one thing is dear. 'So far as the right to property is concerned, the constitution, while assurmg that no-body shall be deprived of property except under the ; authority of law and that there shall be a fair return in case of COl!lpulsory acquisition (Article 31 (1) & (2) ), expressly declared its , determination, in the interest of the common good, to break up con- centration of wealth and means of production in every form and to .arrange for redistribution of ownership and control of the material resources of the community. See: Article 39(b) & (c). If anything in the constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterouslv it may have been played down in the course of an argument which painted the gloom resulting by the denial of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The constitution had not merely stopped at declaring this determination but actually started its implementation from the commencement of the constitution itself by incorporating clauses (4) & (6) under Article 31, the first two clauses\n\nKESAVANANDA ti. KERALA (Palekar, J.) 601\n\nof which spelt out the fundamental right to property. Apart from what Pandit Jawaharlal Nehru said about the Article in the Constituent :Assembly Debater-and what he said was not at all sympathetic to Mr. Palkhivala's argument before us-the fundamental right to receive compensation under clause (2), as then framed, was completely nullified by clauses (4) & (6) .in at least one instance of concentrati<)n of wealth and material resources viz. Zamindilris and landc ed estates. These clauses were deliberately inserted in the original\n\nArticle 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various States had already. passed laws or were in the process of passing laws 011 the subjet, and specific provision was made in the two clauses. securing such ' laws from challenge on the ground that. they were not acquired by the State for a public purpose 'or that adequate. compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh(') shows that the law was highly unjust (from the prevailing point of view of 'justice') and the compensation payable was in some cases purely illusory. (See : Mahajan J. p. 936). And yet by virtue of Articie 31(4) there could be no challenge to that Act and other similar laws on those grounds. By oversight, challenge tJo such laws under Articles 14 and 19 .had not been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to .'1ke no chances, a challenge based on all fundamental rights in Part UI was wholly excluded. The course taken by the constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated. from the very beginning and no 'core' with' regard to payment of compensation was sought to be safeguarded. By the ti.ql, e the 4th Amendment '\\'\\'.as made in 1955, it became apparent that the challenge o any. scheme of redistribui:ion or breaking up of concenrration of 'property was confined generally tp Articles 14, 19 and 31, and.herii:e.Article'31A was' amended; By the amendment all interinediari\\i 'incjuding small absent.cc' landlords, were permitted . to be el!minated .ana :challenge to Ari:icle 31A :was exdi.ided only under Ai; ticles 14, J~:3f)~ '3('. I!1 shor, t, 'rights ,,, in' :randed agricultural\n\nproy we extmj!U!Sh.ed V\\!'Ithout a thouglitto the necessity of paymg .f; m , compesauon .. In a: real .sen~ 1 <; oncentration o~ wealth in the form . of agricultural lands was brolCcn and commuruty resources\n\nwcr~ .trihte4 .. On the other hand; a ptotecti<lnist economic system, reinforced by controls, followed in the realm of trade and industry with a view to. itcli.icve greater production of goods and services l~ t?, other fotlhs f <:orlcentration <)f wealth. ahd means of producllon in. the. wake of Independence. So comes the 25th Amendment, ..\n\n( 1) [1952] s.c.R. 889'.\n\n602 SUPREME COURT REPORTS [1973) Supp. S.C.R,\n\nthe object of which is the same viz. implementation of Article 39(b) & ( c ). It has made clear that owners of property when it is acquired for a public purpose are not entitled to compensation as interpreted by this Court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and 31. In principle, there is no difference in Article 31A and the new Article 31C inserted by the 25th Amendment. In tryPig to support his arguments on the oore principle of essential features, Mr. Palkhivala tried to play down the role of Article 31(4) & (6) and Article 31A excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Ar sembly 'Was for years before the constitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article 31A clearly show that community interests were regarded as supreme and those Articles were only a step in the implementation ot the Directive Principles in Article 39(b) & (c). (Compare the observations d Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The constitution definitely refused to accept the 'core' principle with regard to properqy rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind V allabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of.Article 31(4) & (6) in relation to laws regarding Zamindaris and agrkultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said \"I presume that if at any time this legislature chooses OOi nationalise industry, and take control of it, whether it be all .the indusl\\ries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any court. They will not be open tn question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy Iyer) one of the most eminent jurists which our country has ever eroduced, is this, that it should be a fraud on the constitution).\" (See: Constituent Assembly Debates Vol. IX page 1289). It shows that Article 31( 4) (6) were the first step as applied to land legislation, in the direction of imp lemcnting the Directive l'dnciples of Article 39(b) & (c), and it was only a matter of time when the principles would be applied to other types of concentration of wealth and its distributiio.n. As Mahajan, J observed in State of Bihar\n\nv. Kameshwar Singh at pages 929-30, our constitution raised the obligation to pay compensation for compulsory acquisition of property to the status of a fundamental right At the same time by specifically inserting clauses (4) & (6) in Article 31, it made the sues of publi'.c purpose and compensation prescri?ed in Articl~ 31(2) no.n-i?stiable in some specified laws dealing with concentration and d1stnbuhon of wealth\n\nKESAVANANDA v. KERALA (Palekar, J.) 603\n\nin the form of landed agricultural property. This clearly negatived the idea of protecting concentration of wealth in a few hands as an essential feature of the oonstitution. Hidyatullah, J was saying practically the same thing when he remarked in Golak Nath'• case that it was an error to include propeny rights in Pan III and that diey were the weakest of fundamental rights (p. 887).\n\nI have already di=ed the amplitude of power conferred by the amending clause of the constitution. In countries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that ev(n these expres.'! limitations can be removed by following the procedure laid down in the amending clause. According to them this could be done in two steps the first being to amend the air.ending clall!>e itself. It is not necessary for us to investigate the matter further becatlse Article 368 does not contain any exprC8s limitation. On the other hand, the power is wide enough even to amend the provisions of Article 368. See: proviso\n\n( e) of that article. In other words, article 368 contains unqualified and plenary powers to amend the provisions of the constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Isaacs and R'ich JJ in McCawley v. The King-26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691).\n\nWhen such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and St1te Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. Wh, ile, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescn'bed. Hidayatullah, J ., with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generatd when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent\n\n(i.ssemly had entrusted the power to any-body. If the authority which.\n\ns requued to follw the proce?ure is t.he Parliament for the time being, it may be onveruent to descnbe Parliament as the authority to whom the power is anted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whithever mav be the instrumentality for the time being, the power remains unquaiied.\n\n604 SUPREME COURT REPOllTS [1973] Supp. s.c.R.\n\nIf the theory of implied limitations is sound-the assumption made being , that the same have their origin in the rest of the constitutional provisions including the. Preamble and the fund2mental rights - . then these limitations must clog the power by whatever Agency it is\n\nexercised. The rest. ot the constitution does not change 'merely because the procedure prescribed in Article 368.i.s changed. Therefore, the im plied limitations should continue to clog the power. Logically, if Article 368 is so amended as to provide for a convention or a referendum, the latter will be bound to respect the implied limitations-a conclusion which Mr. Palkhivala is not .prepared to accept. . He agrees with the jurists who hold that a convention or a referetidurn will not be bound .by any limitations. .The reason given is that the people directly take plU\"t in a referendum or, through thCir elected representatives, in a convention. Even in Golak Nath it was accepted that any part of the constitution including the fundamental .rights could be amended out of existence by a (::onstituent Asembly. ·\n\nThe argument' ieems to be that a 1di.stinction must be made between the power exercised by the people and the power exercised by Parliament. In fact' Mr. Palkhivala's whole thesis is that the Parliament is a creature of the constitution anl the limitation is inherent in its being a constituted authority. We have :ilready examined the question and shown that where the people have withdrawn completely from the process of Amendment, the Constituent body to whom the power is entrusted can exercise the power to the same extent as a Constituent Assembly and that' the power does not vary according tci the Agency to whom the power is . entrusted. Therefore, this reason also viz. that Parliament ii a conscituted body and, therefore,· it suffers from inherent limitations does not hold good.\n\nFC?m the conclusion that the power of Amendment remains unqualified by whomscxwer it is exercised, i• follows that there can be no implied.or inherent: limitations on the Amending power, If a special convention admittedly does n(lt. suffer from limitations,. any other constituent body cannot be subject to it. .\n\nTh.eleadip.g, majonty judgnwnt in G\"lqk Nath's case had seen some fotce in this. d!).cq~ of implied limita.tiOQ.S (808), btiu\\id not find it neceSiSW'y to decide 011 the isstJ~ To remove all doubts on that score the 24th Amendment is now su.\\tl!Wy amc; nded. Its first clause says that Parliament may .amend:any 'J>l'OVi.sion of the constituticm norwithstanding anything in it. Thore, in:tht matter of amendment Parliament may not, now; be inhibited by the other express provisions of the constitution, which would mean that it may also .. ignore all implications arising therefrom.\n\n.KESAVANANDA v. KERALA (Palekar, J.) .605\n\nWhere power is granted to amend the Amending power, as m our constitution, there is no limit to the extent this may be done. It may be curtailed oJ. 'enlarged' ... This is well illustrated fa Ryan v. Lennox(').\n\nUnder the Irish State Constitution Act of 1922, the Parliament (Oire<ichtas) had been given power to amend the constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the constitution, could be validly made without having recourse to a .referendum unless •specially demanded by the per.rons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a constitutional amendment of 1928 (Amendment No.· 10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result wa, g that the constitution now authorized the Parliament to amend by\n\nordinary legislation its constitution for the period of 16 years from the commencement of the constitution without being required to have recourse to a. referendum. In 1931 by a further Amendment (Amendment No. 17) extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular courts. Ryan who was one of the victims of the new law applied to the High Court for a Writ of Habeas Corpus on the ground that the several amendments were invalid, especially No. 16, by which the period of S years had been extended to 16 years. If Amendment No. 16 was invalid, that would have automatically resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High Court (3 JJ) unanimously held that all the Amendments were valid. In appeal to the Supreme Court that decision was confirmed by a majority, Kennedy, Chief Justice, di_.; senting. One of the chief contentions directed against Amendment No. 16 was that the Parliament\n\ncould not have 'enlarged' its power from 8 to 16 years to change the constitution without a referendum by ordinary legislation. This contention was rejected by the majority. Kennedy, C.J. took .i different view of the amendment. He held thaf Article 50 did not provide for the amending of the Amendatory power, conceding that otherwise the power could have been so 'enlarged'. Since there is no dispute in our case that by reason cJ. clause ( e) of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to 'enlarge' the power by amendment. If it is assumed-and we have shown there is no grouna to make such an assumptionthat there was some implied limitation to be derived from other provisions of the con\"\n\nstitution, that limitation, if any, is now removed by the non-obstante clause in clause 1 of the Amended Article 368. ·\n\n( 1) [1935] Irish Reports, 170.\n\n39-36 s. c. India/73\n\n606 SUPREME COUI\\T llEPOllTS (1973] Supp, S.c.J..\n\nIt is of aome interest to note here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State(') and in which a constitutional amendmen.t made by the Irish Parliament .in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed ( 494) \"Mr. Willied Greene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.\" The question of validity of Amendme.nt No. 16 was so vital to the petitioner's case that it. is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, 'rightly'. According to Keith the judgment of Kennedy, C.J. in Rayan's case was wrong.\n\nSee: Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157.\n\nThe importance of Rayan's case lies in the fact that though Article 50 of the Irish Free State Constitution did not expressly say that Article 50 itself is liable to be amended, no le~ than five judges of the Irish Courts held it coul.d be amended though tl).e amendment resulted in the 'enlargement' of the power of the Irish Parliament to amend the constitution. How wide the power was further established in Moore's case which held. that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by the combined operation of tl; ie, Statute of Westminster and the Constitutional Amendment, in sp!l:e of Article 50 having been originally limited by the terms of the Scheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and such an amendment can enlarge th.e powers of the Parliament, if such was the need.\n\nApart from reasons already given, we will consider, on first prin-/ ciples, whether the constituent bod): is bound to respect the so-called 'essential feature' of the fundamental rights especially that of right to property. The fact that some people regard them as good and desirable is no adequate reason. The question really is whether the constituent body considers that they require to be amended to meet the challenge of the times, The philosophy of the amending claµse is that it is a safety-valve for orderly change and if the good and d>sirable feature has lost its appeal to the people the' constituent body would have undoubtedly the right to change it.\n\nIndeed, if there are some parts of the constitution which are made expressly unamendable the constituent body would be incompetent to\n\n(') {1935] A.C. 484.\n\nKESAVANANDA v. KERALA (Palekar, J.) 607\n\nchange them, or if there is anything in the provisions of the ons~\n\ntution embodying those essential features which by necy unphcation prohibit their amendment those provisions will also become unamendable. The reason is that in law there is no distinction between an express limitation an.cl a limitation which must be necessarily 'implied. Secondly, it is an accepted rule .of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in. other parts of the statute.\n\nBut we have 11o remember that Article 368 permits the amendment of all the provisions of the constitution expressly.\n\nAnd if that power is 1lo be cut down by something that is said in some other provision of the constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland(') observed at page 500 \"No rule of construction can require that, when the words of one part of a statute convey a clear meaning . . . . . . . . it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act.\" To control the true effect of article 368 \"you must have a context even more plain or at least as plain as the words to be controlled\". See : Jessel M. R. in Bentley v. Rotherham(2 ). Neither the text nor the context of the articles embodying the fundamental rights shows that they are not exposed to article 368.\n\nMoreover, when we are concerned with a power under a .statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah (3) at pp. 904 & 905 \"The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restncted. If what has been done is legislation, within the general scope of the affirmative words which give . rhe power, and if it violates no express condition or restriction by which that power is limited it is not for any Court of Justice to inquire further or to enlarge constructiv_ely those conditions and restrictions.\" Similarly Earl Loreburn m Attorney-General for the Province of Ontario v. Attomey-\n\nGenral for th_e Dominion of Canada(4 ) observed at page 583 \"In the mterpretat10n of. a completely self-governing Constitution founded\n\n( 1) (1831) II Dow le Clark, 480.\n\n(2) (1876-77) 4 Ch. D. 588 (592).\n\n( 8) (1878) 3 App. Cas. 889. (') (1912) App. Cas. 571.\n\n608 SUPREME 'COURT J\\EPORTS [1973] Supp. s.c.11..\n\nupon a written organic instrument suh as the ritish, No'.th Americ~\n\nAct, if the text is explicit the text 1s conclusve, e m what it directs and what it forbids.\n\nWhen the text 1s ambiguous, as for example, when the words establishing too mutually exclusive )urisdictions are wide enough to bring a particular power w1thm either, recourse must be had to the context and scheme of the Act.\" The only course which is open to courts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy Council in Webb v. Outrim(') the effect of which is summarized by Isaacs, J, in The Amalgamated Society of Engineers v. The Adelaide Steamship Company Limited and others(') at p. 150 as follows:\n\n\" ...... we should state explicitly that the doctrine of \"implied prohibition\" against the exercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v. Outrirn.\"\n\nHaving regard to the rules of construction relating to power referred to above, we have to see if either the provisions relating to the, fundamental right to property or any related provisions o.f the constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest that rights to property cannot be abridged by an amendment of the constitution. On the other hand, article 31(1)\n\nsugges~ that onecan be deprived of, property under the authority of law. The right to receive compensation under clause (2) of article 31, as it stood at the time of the commencement of the constitution, had been considerably cut down by several provisions contained in the other clauses of that article. Article 31(4) & (6) not only envisaged breaking up of concentration of landed property in the hands of Zamindars and the like but also expropriatlion without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in _property would succeed without theirexclusion. 1:hereafter there has been a spate of amendments curtailing property nghts and none of them seems to have been cliallenged on the , ground that there was something in the provisions themselves (apart from e fact .that. they '1;1fect a 'tranceental' fundamental right) suggesung an 1mphed or mherent hm1tat1on on the amending power.\n\nThe last sentence from Lord Loreburn's judgment quoted about em- /\n\n'(1) [1907] A.C. 81.\n\n(') 28 C.l.R. 129.\n\nbodies a well-known rule of construction whic~. is usetul whep the text of a statute is ambiguous, Where i)i~ :.te~ ; u i:lear' an9 yrrambiguous there can be .no recourse to. the contexf ?~ rl\\e. shme of .tJie Act; nor can the context, or the scheme be u, tihsed to , make ambiguous what is cJiar and unambiguous .. ¥or~er thc'fole does . not permit in .. cases. ofi. ambiguity recourse :to , th~ scheme and cotext which is unhelpful, iri, resolving the ani\\1iguitY .. It' does not authvrize investigating the sol\\cme and context ~Jlh an effec.t. of delimiting the power referred to in , the: 'ambiguous' '\\at; if , the' scheme and the context do not contain ..yi:irds which., expressly or liy necessary impli,- cation havethe effect.\n\nAl llhis is impo~t in. cc; mnection with the construction of .the word. Aniendment'. 10 Article 368., We have\n\nali-eady shown that the ord 'Amendment' usec:I :in the 'oontet of a constitutioo is dear an4 unainbiguoll,!. Therefore, the scheme and :the context are irrelevant. ... :The scheme and the c.011text on which reliance is placed before .us consist principally of the alleged dominating statuts of the Preanible and the alleged transcedental character of the fundamental rights neither of whicli helps Us in the legal interpretation of the word 'Amendment'. They are being .pressed into $ervice merely to create an ambiguity where there is' µqne.. Actually the context and scheme arc here used to cut dowi+ the ambiti and 'SCOpe of the expression 'amendment of the constitution' by investing them with that effect where neither expressly nor by necessary impli• cation do they contain any prohibition or limitation on the Amend, ing power. Therefore, as a matter of construction no implied limitatins can be inferred from the Preamble or the fundamental rights, bcmg as much part of a -legal document as any other provision of the constitution, are subject to equal consideration in the matter of legal construction. To be releant, e scheme and context must say or ceasonably suggest something with regard to Amending power.\n\n. .M~. Palkhivala sought to draw support for his doctrine of implied littnitations from the preamble. According to him the Preamble sets\n\n~t the objecve~ of the Constitution and, therefore, any tampering\n\nwith t?ese ob1ect1ves would destroy the identi~ of the constitution.\n\nAnd since amndment of the constitution, howsoever made, must 1fesehrve the identity of the Constitution the objectives of the Pream- . e s ould be treated as permanent and unamendable. On that basis\n\ne ~er contended. tht since the fundamental rights are mostly an £!d rationalof .the ob1ectlves of llhe Preamble, it was implied that the\n\nto b amdcnt nghts or, at least, the essence of them was not liable c amagecl or destroyed by an amendment\n\nThe submission that the f d 1 h . of the P bl . . un amcnta . ng ts arc an elaboration the p ' rew the is an over-statement and a half truth. According to\n\nream e e people of India have given unro themselves the\n\n610 SUPJllMI couaT ul'OlTS [1973] Supp. s.c.I.\n\nConstitution to secure to all its citizens (a) 1USTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship; (c) EQUALITT of status and of opportunity; and to promote among the citizens ( d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the\n\nConstitutlion is intended to be a vehicle by which the goals set out in it arc hoped to be reached. Indeed; being a part of the Constitu- .tion, strictly speaking, it is amendable under Article 368. But we will\n\nissumc that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the Preamb!C is there the Governments will have to honour the Preamble and the Constitution will have to oontinue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature.\n\nMost of the fundamental rights may traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the concepts of LIBERTY and EQUALITY ate mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in absolute terms. They rcflcc~ the concepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions illlposcd in the interest of orderly and peaceable Government.\n\nThe pre-eminent place i, n the Preamble is given to JUSTICE-- social, economic and political, and it is obvious that without JUSTICE the other concepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic country whose institutions arc informed by JUSTICE;-social, economic and political, the other three concepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered. Social and political Justice takes care of Liberty; and Justice, social and economic, takes care of Equality of status and of opportunity. Therefore, even in the Directive Principles the supreme importance of Justice-social, economic and political-is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of the National life. Where genuine and honest efforts are made in the implementation of this manda.te the content and ambit of the concepts of Liberty and Equality are \"9und to increase and expand. As Wade has pointed out in his introduction to Dicey's Law of the Constitution all page lxnii \"Liberty today involves the ordering of social and economic conditions by go\"ernmental authority, even in those countries where political, if not economic equality of its citizens, has been attained. Witihout expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kiligdoni, the~ is inevit- ·\n\nKESAVANANDA II. KEllALA (Pll/tklll'1 J.) till\n\nably a risk that the constituti.on ay break dowi_i fore a. f?rc~ which is not limited by considerations o£ constitutional mcctlcs.\n\nAgain he points out at pages xxiv and xxv that _ the modcr1! House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill oi the body politic . . . . . . . . and the changing conditions have all been brought about by the action of Parliament. In doing that, Wade says, it could not be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the tcns of our constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political. ·\n\nThe absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the countlry whether they arc described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and docs not make a song and dance about them. British rulers of India tried to introduce these rules -in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practik:ally withol\\t change, under our constitution. No body can deny that when Imperial interests were in jeopardy, th_csc rules of good government were applied with an unequal hand; and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. To them their value in ou:r social and political life assumed such importance that when the constitution was framed we decided that these rules of Civilized _ government must find a place in the constitution, so that even our own Governmen\"s at the centre and the States should not overlook them. That is the .genesis of our fundamental rights. The importance of these rights as conferred in the constitution lies not in their being something extraordinary but in the bar that the constitullion imposed against laws which contravened these rights and the effective remedy supplied under article 32. Indeed the framers of the constitllltion took good care not to confer the fundamental rights in absolute terms because that was\n\ni?Iprctical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundan; icntal rights i.e. rules of civilized government arc liable to be altered, 1f necessary, f9r the common good and in the public interest.\n\n612 SUP!ll!Mll coURT UPOllTS. (1973} Supp .. 6.C.R.\n\nAnd yet; .as we have seen above, even in U.K. individual liberty as it wAs undetstood a generation or:.two ago• is rio longer so. sacrosanct, especially; in relation :t6 owne'rshipof P\"opctty;. Severa! statutes irrthe eoonomic and social field have been passed which while undoubtedly impinging. upon the individual liberties •of a f!iw have expanded social and economic justice for the many; If U; K, had stood staunchly by its Victori, an cancept of •laiuez faire and individual liberty, the progress in-social and economic j11stice which it has.achieved during the last half a century would have been difficult. Even so; though very much more advanced than our country, U.K. cannot daim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the Governments there have always this goal in view though tiheir methods may be different. In a country. like ours where we have, on' the one harid, abject povoty on a very large scale and great concentration of wealth. on the other, the advance towards social and eeonori:iic justice is bound to be retardeG!\n\nif the old concept 'Qf incjividual liberty is to dog our footsteps. In the ultimate analysis, liberty or 'freedoms which are So much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, out constitution does not sympathise with. If the normal rule is that all rules of civilized government are subjec~ 'to public interest and the common weal, those ,, rules will hav1no undergo new adjustments in the impleme11tation of the Directive Principles. A blind adheJ'l:ncc to the concept of freedom to own disproportionate wealth will not take us to the imporlant goals of the Preamble, while a just and sympathetic implementation .; if the Directiive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they now enjoy. 1bat being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39(b) and ( c), instead of being contrary to the Preamble, would be in conformity with it because while it may cut down individual liberty of a few, it widens its horizon for _the many.\n\nIt follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the course of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary consequence and, therefore, secondary. The Preamble read as a whole, therefore, does not contain the implication that in any genuine implementation pf the Directive Principles, A fundamental right will mt suffer any dimunition. Cori•\n\nccntration and control of comm\\IDity resourc.c; s, wealth. and means of production in the hands of a few individuals are, in the eyes of the\n\nKESAVANANl>A fl • .!WALA (l'alek..a,, J.). 613\n\n<:onstitution, an evil which must be cradica, tec\\ .fr pm the, soda! org~· :zation, and hence, any fundamental . right, to i:h~. extent . that 1.t fosters this evil; is liable to be. abridged or takn ~':\".ay m. tlic 1hntcrcst Clf the cSOCial structure envisaged , by the constttutlon, 'l'hc .sc. cme of .the\n\nfundamental .rights in }>art III itself shows that rcstril:tions oq them have been placed tlo guard. against their exercise in an evil way.\n\nNor is there anything in the Preamble to suggest that the power to. a111e!ld. the fundamental , right to property is cut down .. Actually there is no reference to the right to property. On the other hand, while dcdaring the objectiv, es which inspired the framers of the constitution to give unto themselves the constitution which, they .hoped, would be able to achieve them, they took gd care to prov1d.c for the amendment of \"this constitution\". It was clearly implied that if the operative. parts of the constitution failed to put us on the road to the objectives, the constitution was liable to be appropriately amend ed. Even the Preamble, which, as we know, had been adopted by the constituent assembly as a part of the constitution. (Constituent Assembly Debates Vol. X p. 456) was liable' to be amended. Right to property was, perhaps, dcilbcratcly not enthroned in the Preamble 'because that would have conflicted with the objectives of securing to .all its citizens justice, social, economic and political, and equality of -Opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase nor decrease the power granted in plain and clear \"Words in the enacting parts of a statu~ See : The Berubari Union .and Exchange of Enclaves(') at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the •apparent ambit of the Preamble. See : Secretary of Stltte v. Maharaiah of Bobbili('). As a matter of fact if the enacting part is clear and 'Unambiguous it does not call for construction. In Spraguc's case the 'Supreme Court of America had been called upon to construe Article y, c mendi!1!1 clause, so ae o cut down the amending power by 1mphcat1ons ansmg ouu of certain other provisions of the constitution itself.\n\nReplying to the argument the court observed, \"the United 'State asserts hat. Article V is clear in sta&ment and in meaning con tams no a'!1b1gu1ty and calls for no resort to rules of construction. A mere redmg demonstrates thad this is true.\" These observations oapply with. greater force to our amending clause namely Article 368, for m Article V of the American constitution there was some room for play of. argment on the basis of alternative methods permitted for the rat1.ficat1on of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State\n\n( 1)\n\n[ 1960] 3 S.C.R. 250.\n\n( 1) 43 Madras 529 P.C. at 536.\n\n1)14 SUPIU!ME COURT Rl!PORTS [1973] Supp. s.c.11.\n\nlegfalature and the other by the State convention-it was argue? that. the State convention was the appropriate method 1IO the exclusion of the State legislature, because the prohibition amendment .<18th amendment) directly affected personal liberty. Where personal liberty was itwolved, it was submitted, the people alone through their con-- vention could ratify an amendment, especially, as under article X the people had reserved to themselves the powers which were not expressly conferred on the federal constitution. This argument was rejected by the Supreme Court on the ground that the language of Article V was. clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratification by the State legislature there was an end of the matter •.\n\nThe court observed \"In the constitution words and phrases were used in their normal and ordinary as distinct from technical meaning.\n\nWhen the intention is clear, _there is no room for construction and no excuse for interpolation\". By interpolation the court specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification.\n\nReference was made to certain cases with a view to show that though there were no words suggesting a limitation on a power, implied limitations or prohibitions are noticed by courts. In a recent Australian case of Victoria v. The Commonwealth(') the question arose as to the power of the Commonwealth Parliament under section 51 (ii) of the constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1%9. It was unanimously held by the court that the Commonwealth Parliament had the power.\n\nDuring the course of alrguments, the question arose, which has been troubling the Australian courts for years, whether there were implied limitations on commonwealth Legislative power under the constitution in view of the fact that the Preamble to the constitutfon recited that the people had agreed \"to unite in one indissoluble federal commonwealth under the Crown.\" In Amalgamated Engineers case. already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no-\n\n( 1) 45 A.L.I.R. 251.\n\n' .\n\nKESAVANANDA v. KUALA (Palekar, J.) 615\n\ndiffrence to tne question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with Jq,; iative power and that had to be ascertained within the four corners of the constitution by which the power had been crca~ nd under which it had to be exercised. There was room for constructton on the basis of the words and structure of the constituljion, especially,. the Preamble which was not . liable to be amended by the Commonwealth. On the other hand, since the power to amend the consti-· tution is a superior power it cannot lie bound by any provision of th.e oonstitution itself, the obvious reason being that even such a provision is amendable under the constitution. In re The Initiative and Referendum Act,(') it was held by the Privy Council that the British North America Act, 1867, section 92, head 1, which empowers a Provincial legislature to amend the amstitution of the Province, \"excepting as regards the office of Lieutenant-Governor,\" excludes the making of a law which abrogates any power which the Crown possesses through the Lieutenant-Governor who directly .represents the Crown. By the Initiative and Referendum Act the legislative assembly of Manitoba-a Province in Canada-<ompelled the Lieutenant- Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenan.t-Governor as part of the legislature and since the amendment to the constitution had the effect of affecting thar office which was expressly excepted from the amending power the\n\nlw. ws void. It is thus seen r.?at there was no question of an implied hm1tat1on .. In the other case cited before us namely Don John Francis Douglas L1nage & others v. The Queen(') no question of amending the co?st1tut10n arose. here hy an ordinary act of the legislature made ID 1962 under section 29(1) of the Ceylon (Constitution and\n\nIndpendence)_ Orders i~ Council, 1946-47 an attempt was made to\n\npart1all~ vest ID te legislature and the executive the judicial powers\n\nof th~ 1udges which vested .ID them under a separate Imperial Charter viz. the Charter of Justice, 1833 the effective operation of which was recognized in the constitution of 1946-47. It was held that the\n\nct ws , ultra tmes the constitution. Some more cases like Ranasmghe s( case, Tylor v. 41tmey General of Queensland('), ft.!angal Singh v. Union of India( ), were cited to show that constitutwnal laws permit implications to be drawn where necessary. No body\n\n( 1) [1919] A.C. 935,\n\n( 2) [1967] A.C. 259.\n\n( 8) [1965] A.C. 172.\n\n\n\"i16 _SUPRE?4E. COUllT IUU'O&TS [ 19.7.3] Sµpp. s.c.a.\n\n-disputes that proposition. Courts may have to. do so where th( implica tion is necessary to be drawn. In Ranasinghe's case tile Privy Council is supposed to .have expressed the opinion on a construction ot section 29 of the Ceylon (Constitution) Order in Council, 1946 that suboSC.ctions 2 and 3 are. unamendable under the constitution. In the first place, the observation .is obiter, and it is doubtful if their Lordships intended to convey that even under section 29(4), they were unamendable. A plain reading of the latter provision shows they were amend .able by a special majority. Secondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as 'entrenched', the -plain dictionary meaning of which is that they are not to be repeal- .cd except under more than stringent conditions.\n\nSee also Wade's lritroduction to Dicey pages xxxvi to xxxvii. Jennings in his Consti- .tution of Ceylon (1949) points out at page 22 that the limitations of .29(2) & (3) can be altered or abridged by the special procedure under section 29(4). Similarly . we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a reading of sub-sections 1 .to 4. of section 29 together. In Taylor's case the question for consideration was as to the interpretation of the expression 'constitution of , such legislature' in section 5 of the Colonial Laws Validation Act,\n\n1865. At the time in question the legislature consisted of a lower house and an upper house and it was held that the expression 'constitution of such legislature' was wide enough to include the conversion of a bicameral legislature into a unicameral one. Issacs, J. also held 'legislature' in the particular context meant the houses of legislature and did not include the. Crown.\n\nIn Mangal Singh's case it was merely held that if by law made under Article 4 of our .constitution a state was formed, that state must have legislative, exe- -cutive and judicial organs which are merely the accoutrements of a .state as understood under the constitution. The connotation of a 'state' included these three organs. That again was a matter of pure construction. None of the cases sheCls any light on the question with which we are concerned viz. whether an unambiguous and plenary _power to amend the provisions of the constitution, which included the Preamble and the fndamental rights, must be .frighnened by the fact that some superior and transcedental character has been ascribed\n\nto them.\n\nOn the other hand, in America where implied limitations were sought to be pressed in cases dealing with constitutional amendments, the same were rejected .. In Sprague's case the Supreme Court rejected the contention of implied limitation supposed to arise from some express provisions in the constitution itself. Referring to this case\n\n\"\" ,_\n\nKESAVANANDA v. KERALA (Palekar, J.) 617\n\nDodd in Cases in Constitutional Law, 5th edition pages 1375-1387 says-\n\n''This case it is hoped puts an end to the efforts to have the court examine into the sub ect matter of constitutional amendment\" In.\n\nThe National Prohibition(') cases decided earlier, the Prohibition Amendment (18th) was challenged, as the briefs show, on a host of alleged implied limitations based on the constitution, its scheme and its history. The opinion of the court did not accept any of them, in fact. did not even notice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitat ons. See for example Cooley Constitutional Law, 4th edition,\n\n46-47; Burdick Law of American Conctitution pp. 45 to 48.\n\nThe argument that essential features (by which Mr. Palkhivala means \"essential features, basic elements or fundamental principles\").· of the constitution, though capable of ame;1dment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled \"spirit of the constitution\" which had been rejected as far back as 1952. See: State of Bihar v. Kameshtvar Singh(2). That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the constitution. After it became law it was reserved for tbe consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in question on the ground that it contravened the provisions of clause 2 of Article 31. Under that law\n\nZamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of challenge under ,\\rticles 14, 19 and 31, the constitution was amended to incorporate Article 31A and Article 3lll to take effect from the date of the commencement of the constitution an<l this Act along with similar other Acts were included in the Ninth Schedule.\n\nIn Sankari Prasad's case the amendment was held valirl and when the case came before this Court the arguments became limited in scope. Mr. P. R. Das who appeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry 36 List II and Entry 42 in List III arguing that the law in so far as it did not acquire the Zamindaris for a public purpose or make provision for adequate compensation was incompetent under those entries.\n\nDr.\n\nAmbedkar who appeared for other Zamindars took a different stand.\n\nIn the words of Patanjali Shastri, C.J. \"He maintained th1t a constitutional prohibiti_on against compulsory acquisition of prnpertv without public necessity and payment of compensation was deducible from what he called the \"spirit of the constitution\", which, according to.\n\n(1) 65 Law, cdn. 994.\n\n( 2) [1952] S.C.R. 889.\n\n6J 8 SUPREME COUB.T REPOH'S (1973) Supp. S.c.L\n\nhim, was a valid test for judging the constitutionality . of a statute.\n\nThf Constitution, being avowedly one for establishing liberty, iusti\" and equality anti a government of a free people with only limitetl pomers, must be held to contain an implied prohibition against tak..ing private property Without iust compensation and in the absence of a publz'c purpose. (Emphasis is supplied) He relied on certain Amcri can decisions and text-books as supporting the view that a constitu tional prohibition can be derived by implication from the spirit of the Con.\"litution where no express prohibition has been enacted in that behalf. Artic, les 31-A and 31-B barred only objections based on alleged infringemonts of the fundamenual rights conferred by Part III, but if~ from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before\n\nprivat~ property could be compulsorily acquired by the State, there was\n\nnothing in the two articles oresaid to preclude obiection on the ground that the impugned Acts do not satisfy these requirements anti are, thdrefore, unconstitutional.\" (Emphasis supplied) This argument was re)ected in these words \"In the face of the limitations on the State's power of compulsory acquisition thus incorporated in the body of the Constit11tion, from which \"estates\" alone are excluded, it would, in my .opinior, be contrary to elementary canons of statutory construction to read, by Implication, those very limitations into entry 36 of List II, alone or in con\\iunction with entry 42 of List III of the Seventh Schedule, or to deduce them from \"the spirit of the Constitution\", and that too, in respect of the very properties excluded.\" The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unconstirutional, and this conclusion should be drawn by implied prollibition in spite of Arti cle 31(4), 31A & 31B eJIPressly barring challenge on those very grounds. In other words, an express provision of llhe constitution validating a state law was sought to be nullified on the basis of 'essential features and basic principles' underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec no distinction between Dr. Ambedkar' s argument in the above case and the case before us, because the plenary power of amendment under Article 368\n\nis sought to be limited by implications supposed to arise from those same 'essential features and basic principles'.\n\nA legislature functioning under a constitution is entitled to make a law and it is not dispur.ed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute .either directly or indirectly it is inhibited by any important or essential\n\n'.USAVANANDA v. llJ!; aALA (Palekar, J.) 619\n\nparts of that stature. It can amend the _important, desirable, parts as \"Ull.Ceremoniously as it can any other ummportant parts of th~ statut:. 'That being so, one does not see !!he reasonableness of reusmg this latitude to a body which is specifically granted the unqualified power to amend the constitution. While the legislature's power to amend operates on each and every provision. of _tlhe stat':Itc it is diffil~ to sec why the amending clause in a const1tutton specifically authonsmg the amendment of the constitutioff should stand inhibited by any of the .constitution. Essential parts and unessential parts of a constitution should make no difference to the amending power (Compare passage from McCawley's case already quoted at p. 43-4) That a legislature can repeal an act as a whole and the constituent body does not repeal the constitution as a whole is not a point of distinction. A legislature repeals an Act when it has outlived its utilitv. But so far as a constitution is concerned it is an organic instrument continuously growing in utility and the question of its repeal never arises as long as orderely change is possible. A constitution is intended to last. Legislative acts -do not have that ambitiion. It is the nature and character of the constitution as a growing, organic, permanent and sovereign instrument of government which exclude the repeal of the constitution as a whole and not the nature and character of the Amending power.\n\nSince _the 'essential features and basic principles' referred to by Mr.\n\nPalkhivala are those culled from rhe provisions of the constitution it is clear that he wants to divide the constitution into part&-<lne of provisions containing the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are concerned, though they may be amended, they cannot be a!ljended so as to damage or destroy the core of the essential features. Two difficulties arise. Who is to decide what are essential provisions and nonessential provisions? According to Mr. Palkhivala it is the court which should do it. If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essenal?\n\nEery provision, in one sense, is an essential provision, because if a law 1s made by the Parliament or the State legislatures contravening even the most insignificant provision of the constitution that law ~I e voi?. From that point of view the courts acting und; r the const1tunon \"'.ill have to . look ~P?n I.ts provisions with an equal eye.\n\neconclly, 1f. an :ssenual i; rv1s10n 1s amended and a new provision is inserted which, m the op1mon of the constituent body, should be presumed to ?e more essential than the one repealed, what is the yardstick the court IS expected to employ? It will only mean that whatever\n\nnece5;1ity_ the constituent body may eel in introducing a change in the constitution, whatever change of pohcy that body may like to introduce\n\n620.\n\nSUPl\\1':}IB, COURT R1'PPRTS [1973], Supp •. s.c.R.\n\nin the constitution,' the $ame is liable, to be struck down if the cout is not $atisfied either. about the necessity o.c the policy. Clearly this is not a function of the courts. , The difficulty' assumes greater proportion when an amendment is challenged on the ground that the core of an essential feature is either damaged or ,: destroyed. . What is the standard? \\Vho will decide where the core lies and when it is reached? One can understand the argument, that particular provisions in the constitution embodying some essential features are not amendable at alL But the difficulty arises when it is conceded that the provision is. liable to be amended, but not• so as to touch its 'core'. Apart from the difficulty in determining where the 'core of an essential feature' lies,· it does n-0t appear to be sufficiently , realized. what fantastic results may follow in working the constitution. , Suppose, an amendment of a provision is made this. year •. : The. mere fact, that an amendment is made will. not give any body• the, right. to come. to . thi$ Court. to have the amendment nullified on .. the ground, that it affects, the core of an essential.· feature, _It is only when a<Jaw is made under the amended provision and that law affects some individual's right, that he may come to this Court. At that time he . will first, show that the amendment is bad because it affects .the core of an essential feature and if he succeeds there, he will. automatically succeed and the law made by the Legi~ lature in the confidence that it is protected by the amended constitution will .be rendered void. And such a challenge to the amendment may come several years after the amendment which till then is regarded as a part of the constitution: In other words, every amendment, however innocuous it . may seem wheri it is made is liable to be struck down several years after the amendment although all the people have arranged their affairs on the strength of the amended' cons- • titution. . And in dealing with the challenge to a particular amendment and searching for the. core of .the essential feature the court will have to do it either with reference to the original constitution or the constitution as it stood with all its amendments upto date. The former procedure is clearly absurd because the constitution has. already undergone vital. changes by amendments in the meantime. So the challenged .amendment: will have to be assessed on the basis of the constitution with all its a!llendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are not under challenge, and on that basis Judges will have to deal. with the challenged amendment But the other amendments . are . also not' free from challenge in subsequent proceed7 ings, because we have. already seen •.that;· every amendment can be cha!lenged severa.l years after it is made, if a law made under it affects a priv.ate individual: .Sd. there will be 'a continuous state' of flux after\n\nan amendment is made 'and: 'ae ariy given moment when 'the . 'court \"\\vants to ., dterm.iriE 'fue 1cdre1: of , th~, eientil f eatu; e 'it \\ill hve io\n\n'.1::1ii ( 1-! :,;..:,'.:; /i~.'1 ·.ti11'.i '.J:i:r l/_'l .·; -:1. ··:·.L -~- ,,;,.,·. , ·\n\ndiscard in order to be able to say where the core lies, every othei: amendi'nent because these amendments also being unstable will not help in the determination of the core. In other. words, the court~ will have to go by the original constitution to decide the core .of an essential feature ignoring aloogether all the amendments made m thct meantime all the transformations of rights that have taken place after them, all 'the arrangements people have made on the basis of th~ validity of the amendments and all the laws made under them w1thou1 question. An argnment which leads to such obnoxious results can hardly be entertained. In this very case if the core argument wre to be sustained, several previous amendments whll have to be set aside because they have undoubtedly affected the core of one or the other fundamental right. Prospective overruling will be the order of the day.\n\nThe argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the constitution as a whole in the light of social, political and economic concepts embodied therein and determine on such an assessment what is the irreducible minimum of the several features of the constitution. Any attempt by amendment, it is contended, to go beyond such irreducible minimum-also called the 'core; of essential features-should be disallowed as invalid. In other words, we are invitled to resort to the sub, tantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected !Ong ago by this Court (Gopalan's case) even in its application to ordinary legislation.\n\nSee 1950 S.C.R. 88 (Kania, CJ. llO) (Das, J. 312). The argument does not have anything to do with the meaning of the expression 'Amendment of the Constitution' because it is conceded for the purpose of this argument that 'amendment of this constitution' means amendment of all provisions by way of addition, alteration or repeal' What is contended, is that by the very implications of the structure, general principles and concepts embodied in the constitution, an amendment can go only thus far and no further. In other words, the scope of amendment is circumscribed not by what the constituent body thinks, but by what the Judges ultimately think is its proper limits. And these limits, it is obvious, will vary with individual Judges, and as in due process, the\n\nlimis will be those fixe? by a m.ajrity of Judges at one time, changed, if necessary, by a bigger ma1on~ at another. Every time an amendment is mde of so!\"e magnide as by the Twenty-fifth Amendment we will have, without anything to go on, to consider how in our opinion, the several provisions of the constitution react on on; another, eir relative importance from our point of view, the limits on such 1D?ponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directiv~\n\n40-36 S.C. India/73\n\n622 SUPREME COUllT aEPOllTS [1973] Supp. s.c.a.\n\nprinciples in one case and fundamental rights in another-in short,\n\ndetermine the 'spirit of the constitution' and decide how far the amendment conforms with that 'spirit'. We are no longer, than construing the words of the constitution which is our legitimate province but determining the spirit of the constitution-a course deprecated by this Court in Gopalan's case at pages 120-121. When concepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to properl)y-matters traditionally left to legislative policy and wisdom, we are bound to flounder \"in laby rinths to the character of which we have no sufficient guides.\"\n\nIt is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The constitution and the Legislatures specifically leave such determination to the higher tJOUrts, not because they wiII be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinanion of all these questions is left to the higher judiciary under the constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under t:he constitution and have no relevance when we have to deal with a constitutional amendment. The constitution supplies the guides for the assessment of any statute made under it. It does not supply any guides to its own amendment which is entirely a matter of policy.\n\nThe 'core' argument and the division into essential :ind nonessential parts are fraught with the greatest miscb'ief and will lead to such insuperable difficulties. that, if permitted, thC)? wilt open a Pandora's box of endless litigation creating uncertainty about the provisions of the constitution which was Intended to be clear and certain. Every single provision emobies a concept, a standard, norm or rule which the framers of the constitution thought was so essential that they included it in the constitution. Every amendment thereof will be liable to be assailed on the ground that an essential feature or basic principle was seriously affected. Our people have a reputation of being litigious lot. We shall be only adding to this.\n\nWhen an amendment is successfully passed, it becomes part ot the constitution having equal status with the rest of the pl'.ovisions of\n\nthe constitution. If such an amendment is liabJe to be struck down\n\nKESAVANANDA \"· !WW.A (Palekar, J.) 623\n\non the ground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the constitution as it stands. It witl be open to the court to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the constitution. . If the court holds the opinion that the provisibn\n\nwith regard to preventive detention in Article 22 damages the core of personal liberty it will be struck down. The same can be said\n\nabout the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if :Ill\n\namendment which has become part of the constitution is liable to be struck down because it damages an essential feature it should follow\n\nthat every restriction originally placed on that feature in the constitution would necessarily come under the pruning knife of the courts.\n\nIn short, if the doctrine of unamendability of the core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : \"Nothing in the above Amendment will be deemed tQ have authorized an Amendment of the constitution, which has tho effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the constituti!Jn as may be determined by the Courts.\" This is quite impermissible.\n\nIt is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few.\n\nBryce in his book \"The American Commonwealth\" New and revised edition, Vol. I says at pages '366-67 with reference to Article V of the ·\n\nAmerican Constitution \"But kioking at the constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State Ila become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should ic ever be desired in\n\na perfectly lel way, just s .th~ British arliament is legally cm\n\npetent to red1V1de Great Bntam mto the sixteen or eighteen independent kin¥dos wh!cli cxit~ with'in the island !n the eighth century.\" Randall m his revised ed1t1on, 1964 The ConstJtutional Problems under Lincoln, says at page 394 with reference to Artiicle V \"Aside from the restriction concerning the \"equal suffrage\" of the States in the Senate, the Constitution, since 1808, has conf'.ained no amendable part, and it designates no field of legislation that may not be reached by the amending power. An Amendment properly made becomes\n\n624 sup~ \"9lla11 RXPOll'l'S [1973] Supp. s.c.R.\n\n\"valid, to alf intents. anal pUipOSCS,. as part of .. this constitlition\", having as mudi.· .fori:e ar ant other :article. There is. no. valid distinction between \"tfte Constitutioru itseif' .and the amendments. The. Constitution at any given time includes all up to the latest amendments, and excludes portions that have not. survived the amending process.\n\nWe should think not of \"the Constitution and its amendments,\" but of \"the Constitution as amended\". This is especially true when we reflect that certain of the amendments supplant or construe portion• df the original document.\" COOiey in his book, The General Principles of Constitutional Law in the Unlted States of America, fourth edition, says at pages 46-47 \"Article V of the Constitution prohibits any amendment by which any State \"without its consent shall be deprived of its equal suffral(e in the Senate\". Beyond this there appears\n\nto be no limit to the power or amendment. This, at any rate, is the result of the decision in the so-called National Prohibi tion Cases . . . . . ... . . . . . . . . . The amendment was attacked on the gr; ounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, but the contention was overruled. The decision totally negatived the contention that \"An amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic struc11Ure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted. to it.\" Quick and Carran writing in the \"Annotated Constitution of the Australian Commonwealth\" ( 1901) observe as follows at p. 989 with regard to the amending clause of the constitution namely section 128. \"It II)ay be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action accOlrding to certain modes prescribed. We will consider the modes and conditions of constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be .amended either in the direction of strengthening or weakening. the Federal Government; strengthening it, by conferring on it new and addi.tional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the constitution could be amended by. abolishing the Sena~. It could certainly be amended by remodelling the Executive Department, abolishing what is _known a5 Responsible Government, and introducing a new system, such as that which prevails in Swiezerland, accord-\n\nKESAVANANI>A v. KUALA (Palekar, J.}\n\ning to which the administration of the public departments is placed in the hands of officers elected by the Federal legislature. :rhe Cons\n\ntitution could be amended by altering the tenure of 1ihe JIJ_des, by removing their appointment from the Executive, and authonzmg he\n\nelection _of judges by the Parliament or by the people. Th~ Const1tu tion could be amended in its most vital part, the amending power itself, by providing' 'that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative; that proposed alterations may be formulated by the Executive and submitted to the people; that proposed alterations may, with certain constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of_ a majority of the\n\nStates.\"\n\nOn a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368\n\nof the constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom.\n\nComing to the actual amendments made in the constitution by the twenty-fifth amendment Act, we find in the first place that the original clause (2) of Article 31 is recast to some extent by deleting any reference to 'compensation' in ces of compulsory acquisition and requisition for a public purpose. The fundamental right now is not to receive 'compensation' which this Court construed to mean 'a just equivalent' but to receive an \"amount\" which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the \"amount\" may be given in cash or in such manner as the law may specify.\n\nThe princip-11 objection to the amendment is that the clause arms the legislature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed maybe more in one and very much less in another depending entirely on the whim of the legislature.\n\nConceivably the amount may be illusory having regard to the value\n\nof the propert~. The principles for determining the amount may\n\nqually be arbitrary and unrelated to the deprivation. Therefore, i~ 1s contended, the amendment is pad.\n\nIt is difficult to understand how an amendment to the constitution becomes invalid because the\n\nconsitution auth.ori?'es the legislatures -tO fill an \"amount\" or to specify the pnnciples on which the \"amount\" is to he determined instead ~! fixing the \"compensation\" or specifying the principle~ for\n\n626 SUPUME COURT ll!P01TS .[1973] Supp •. S.C.R.\n\ndetermining \"compensation\". Even compensation ultimately is an\n\n\"amount\". All that the amendment has done is to negative the inter\n\npretation put by this Court on the concept of compensation, Clause\n\n(2) recognizes the fundamental right to receive an amounn in case of compulsory acquisition or requisition and all that it wants !Kl clarify is that the fundamental right is not to receive compensation as intel'-\n\npreted by this Court but a right to rece.ive an amount in lieu of• the deprivation which the legislature thinks fit. It is not the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The contention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is no power which\n\ncannot be abused. All constitutions grant power to legislatures to make .laws on a variety of subjects and the mere possibility of the power being used unwisely, injuriously or even abused is not a valid ground to deny legislative power. See: Bank of-Toronto v. Lambe(').\n\nJf that is the position with regard to legislative power, there does not appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the constitu tion which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically conferred by clauFe (2) will depend upon the law when made and is tested on the basis of clause (2). One cannot anticipate any such matters and strike down an amendment which, in all conscience, does not preclude a fair amount being fixed for payment in the circumstances of a particul:ir\n\nacquisition or requisition. The possibility of abuse of a power given by an amendment of the oonstitution is not determinative of the validity of the amendment.\n\nThe new clause 2B inserted in Article 31 having the consequence of excluding the application of article 19(l)(f) to a law referred to in clause (2) of article 31 is merely a re-statement of the law laid down by this Court after the constitution came into force. The mutual exclusiveness of article 19(1)(£) and article 31(2) had been recognized by this Court in a series of cases. See: Sitabati Debi & Anr. v. State of West Bengal & Anr.(2). That principle is now embodied in the new amendment.\n\nThe only substantial objection to the twenty-fifth amendment is based on the new article 31C inserted in the constitution by secti-On 3 of the twenty-fifth amendment act.\n\n( 1) 1887, Vol. XII-Appeal Cases 575 at pages 586.587.\n\n( 2) [1967] (2) S.C.R. 949.\n\nI _,\n\nKESAVANANDA \"· KERALA (Palekar, J.) 627\n\nThe new article is as follows : \"31C. Notwithstanding anything contained in article 13, no law\n\ngiving effect to the pol.icy of the state towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for givingeffect to such policy shall be called in question in any court on the ground that it docs not give effect to such policy.\n\nProvided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration d the Presi\n\ndent, has received his assent.\"\n\nIgBoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall not be deemed to be void on the ground that it affects injuriously somebody's fundamental rights under ilrticles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular .kind of objection. ·\n\nIn the first place, it should be noted that what is saved by article 31 C is a law i.e. a law made by a competent legislature.\n\nSecondly since Article 31C comes under the specific heading 'Right to property' in Part III dealing with fundamental rights it .is evident that the law must involve right to property. That it must of necessity do so is apparent from the description of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in clauses (b) & ( c) of Article\n\n39. That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that' though the Directive Principles are not enforceable by any court, they are nevertheless fundamental in the governance of the\n\ncountry and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Governments and Legislatures are enjoined to make laws giving effect to the Directive Principjes: W are !mmediately concerned with the Directive Principles contained m Article 39(b) and ( c) namely, that the State shall direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to sub. serve the common good; and ( c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In short clause (b) contemplates measures to secure what is known as equitable distribution of community resources and clause ( c) contemplates measures for pre-\n\n628 SUPREMI! COURJ ll!IPO!ITS .[1973} Supp. s.c.R.\n\nventing concentration of wealth and ~s , of production in a few pri.vate hands. Read along with artic_lc 38 and other principles in_ this . Part, they justify the conclusions of Granville Austin in his Inaian\n\nConstitution : Cornerstone of a Nation-that our Constitution is informed by social democratic principles .. See: pages 41-52 of the book.\n\nT~ final conclusio°: he came to is expressed in this way :\n\n\"By establishing these positive .obligations of the state, the members of the Constituent Assembly made it tlhe responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good.\" p. 52.\n\nThe philosophy which inform1 the constitution looks on concentration <>f wealth and means of production as a social evil because such con- .centration, resulting in the concentration of political and economic _power in the hands of a few private individuals, not only leads to un- equal freedom, on the one hand, but results, on the otiher, in under; mining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the 'core' theory of Mr. l'alkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, <ven as Article 31A provided many years ago, that such laws shol}ld\n\nnot be called in question on the grounds furnished by Articles 14, 19 'and 31. If a law is made with a view to giving effect to the Directive\n\nPrinciples mentioned in Article 39(b) and 39(c) the law is in conformity with the direct mandate of the constitution and must be deemed to .be constitutional. The effect of the first part of Article 31C is rhe\n\name as if, a J?roviso had been inserted below Article 13(2) or each of the several articles 14, 19 and 31 excluding its application ru the parti <ular type of law mentioned in Article 31C., If the law d0es not _genuinely purport to give effect to the specified Hirective Principles it :will not be secure against the challenge und_er Articles 14, 19 and 31.\n\nIndeed since the Directive Principles are couched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in article 31C but such a <lifliculty i._. no reason for denying, the' 'validity of the amendment.\n\nCourts had no difficulty in deciding whether any particular law did fall .under Article 31A or not.\n\nKESAVANANDA v. KERALA (Pale/(ar, J.) 629\n\nThe real difficulty is raised by the second part of Article 31C which provides \"No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.\" The contention is that if any law makes a declaration as stated, that is conclusive of the fact that it is covered by Article 39(b) or ( c) and courrs will be debarred from entertaining any objection on the ground that it is not so covered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Article 39(b) or (c) or not will conclude the issue and the courts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law contravening provisioni of the constitution and by the simple device of a declaration insert the law as an exception to articles 14, 19 a11d 31-i.e. in other words amend the constitution which the legislature cannot do. The constitution, it is pointed out, may be amended only in the way prescribed in article 368 and no other and, therefore, article 31C authorising ari amendment.in a way other than the one laid down in article 368, which still forms part of the constitution with full force, is invalid.\n\nOn behalf of the Union, however, it is claimed that the new article 31C does non have the effect attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of itts true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or ( c), it will not be saved under article 31 C. The sole purpose of the declaration:, according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanif v. lllinois(' ). \"The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform.\n\nIt is the price to be paid for the .trial and error inherent in legislative efforts to deal with obstinate social issues.\"\n\nIt appears to us that the approach suggested on behalf of the Union is the correct approach to the interpretation of Article 31C.\n\nThe State's functional policy is to strive to promote the wel!are of he peopl~ by seuring nd protcting as eectively as it may a\n\nocial order in . w?1c~ JUS11ce, soc•a.l, ecoomic and political shall, 1riform all the mslttut10ns of the naltonal hfe. (Article 38). . That is the goal of the State policy. As prac; tical steps, the State is commanded\n\n(1) 343 U.S. 250.\n\n630 SU~REME CQURT REPORTS [1973] Supp. s.c.R.\n\n, in the next following articles from articles 39 to 51 to direct its policy towards securing some aims which, being well-known concepts of social dtmocratic theory, are described as 'principles'. See for example the marginal note of article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Pan IV.\n\nWe are concerned with Article 39(b) and (c). The State is commanded, in particular, to direct its pqlicy towards securing two aims,\n\none described in (b) and the other in (c). In directing its policytowards securing the aims, the State will evidently have to make laws.\n\nA description of such a law is given in the first part of Article 31Cas a law giving effect to the policy of the State towards securing the principles (aims) specified in Articles 39(b) or (c). If a law truly answers that description it will be secure against a challenge under Articles 14, 19. and 31; otherwise not. When such a challenge is made, it will be the obvious duty of the court to ascertain on an , o):>jtctive conation of the law whether it falls within the descrip- :'l:fun. What the court will have to consider is whether it is a law\n\nwhich can reasonably be described as a law giving effect to the policy .fif\"the State towards securing the aims of ArticLe 39(b) or (c). That 'h an issue which is distinct from the other issue whether the law does.\n\naOt give effct; t to the policy of the State towards securing the lliid aims. A law reasonably calculated to serve a particular aim or purpose may not actually serve that , aim or purpose; and it is this latter issue which is excluded from judicial review. In doing so the declaration does no more than what the courts themselves have been always saying viz. that they are not concerned with the wisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and .isewhere. though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that e_ffcct. That inay have been so because the law was inadequate or . cause the law gave rise to prObleins which were unforeseen. But tmi did not impair the genuineness of the law as being reasonably talculated to .achieve a certain result. The two questions are different.\n\nOne involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. . The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State's policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to be made by a court in order to see the application of a constitutional' provision .. But it is an entirely different proposition to say that tlie law does not actually give effect to the State's policy of securiJ:ig tlie eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate mean~ of\n\nKESAVANANDA II. KERALA (Palekar, J.) 631\n\nknowledge and sources of information. An enquiry, like that of a Commission, wilr lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the course of implcment; ition of the law and the like, all of which do not legitimately fall within the ambit of an enquiry by a court. The problems arc problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose.\n\nThe legislature will have to consider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The courts arc not concerned with that aspect of the matter and even if a law is considered a failure, courts cannot refuse to give effect to the same. The declaration does no more than forbid such an enquiry by the courts which the courts themselves \"Mould not have undertaken.\n\nThe declaration is only by way of abundant caution.\n\nNo other ground is precluded from judicial review under Article 31C. It was rightly conceded on behalf of the Union that the court in deciding whether the law falls within the general description given of it in Article 31C will be competent to examine the true nature and character of the legislation, its design and the primary matter dealt with, its object and scope. See: e.g. Charles Russell v. The Queen(').\n\nIf the court comes to the conclusion that the above object of the legislation was merely a pretence and the real object was discrimination or something other than the ob:cct specified in Article (b) and (c), Article 31C would not be attracted and the validity of the Statute would have to be tested independently of Article 31C. Similarly as\n\noberved in ttorney-General v. Queen Insurance Co.(2) \"if the lcgislatmn ostensibly under one of the powers conferred by the constitutWu is in truth and fact really to accomplish an unauthorised purpose the court would be entitled to tear the veil and deci<le according to the real nature of the statute.\"\n\nIn that view of the true nature of Article 3!C it cannot be said that the amendment is invalid.\n\nThe twenty-fifth Amendment Act is, therefore, valid .\n\n. By te rn:e!lty-ninth mcndment, the two Kerala Acts challenged in. this pct1~10n were included in the Ninth Schedule. Like other Acts included in that. Schcule they are immune from challenge by reason of the proo:ction given to the Schedule by Article 31B.\n\n(') [1882] (VII) Appeal Cases 829 (838-840).\n\n( 2) [1878] 3 Appeal Cases 1090.\n\n632 SUfllEME oom:r lil'O&TS. [1973] Supp, S.C.R,\n\nwas souiht to be argued that uo.ICS$ the Acts rdated oo. agl1\\l'iiPl reform, implicit .in the words 'Witho.ut prejudii:c: , to 11be generality of the provisions contained in Article 31A' with which Article 31B\n\npens, the protection was not available. That agumcnt has be<n. rejected previously.\n\nSee for example N. B. Jeejeebhoy v. Assistl(nt . Collector, Thana('). Actually the argument does not amount to a challenge to the validity of the Amendment, but an attenipt .to show that in spite of the Amendment, the two laws would not be saved by Article 31B. The twenty-ninth Amendment is not different from $Cveral similar Amendments made previously by which Statutes were\n\ndded from time to time to the ninth schedule and whose validity has been upheld by this Court. The twent~-runth Amendment is, :therefore, valid. ' -\n\nMy conclusions are :\n\n(I) The power and the procedure for the amendment af. the Constitution were contained in the unamended Article 368.\n\nAn Amendment of the Constitntion in accordance with. the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right conferred by Part III <i the Constitution is not void as contravening . the provisions of .Article 13(2). The majority decision in Golak Nath v. State of Punjab ;,, with respect, not correct.\n\n(2) There were no implied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be none after its amendment. ( 3) The twenty fourth, the twenty-fifth and the twenty-ninth Amendment Acts are valid.\n\nThe case will now be posted before the regular bench for dispolal in accordance with law.\n\nKHANNA /.-Questions relating to the validity of. the Constitu- 1ion (Twentyfourth Amendment) Act, Con1titutiDn (Twentylifth Amendment) Act and Constitution (Twentyninth AmendmcnO Act, .as well as the c<iuestio1uvhetl}er the Parliameat acting tµlder article 368 of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamcntat rights arise for .determination in this petiticn under article 32 of the Constitution. A number of other importiant questions, to which reference would be made hereafter, have also been posed dµring discussion, and they would be dealt with at the appropriate stage. Similar questions arise.\n\n( 1 ) [1965] (!) S.C.R. 636.\n\nl-~\n\nltESAVA]!qAM>,\\ u. KBIALA (KlilHlna, J.) 633.\n\nin a number \"\" other pttitions, and coonsel ci me parties in those cases have been alldWed to intervene.\n\nThe necessary facts may now be set out, while the details which. have no material bearing for the purpose of this deci$ion am be omitted. Kerala Land Reforms Act, 1963 (Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was subsequently amended by Kerala.\n\nLand Reforms (Amendment) Act, 1969 (Act 35 of 1969).\n\nThe petitioner filed the present writ petition on March 21, 1970 challenging the constitutional validity of the Kerala Land Reforms Act,. 1963 (Act l af 1964) as amended.by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The aforesaid Act was also chal-- lenged in a number of petitions before ti.e Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V. N. Narrz..- yanan Nair v. State of Kera/a(') upheld the validity of the said Act,. except in respect of certain proviMons. Th0se provisions were declared to be invalid. The State of Kerala came up in appeal to this.\n\nCourt against the judgment of the Kerala High Court in so far as that court had held a number of provisions of the Act to be invalid.\n\nThis Court dismissed the appeals of the State as per judgment dated April 26, 1972.(2) Appeals filed by private parties against the- .judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this . Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties.\n\nThe Kerala High Court as per judgment dated October ZI,. 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unconstitutional.\n\nAfter the above judgment of the High Court the Keral.a Land Reforms Act was amended by Ordinance 4 d 1971 which was promulgated on January 30, 1971.- The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on . April 26, 1971 and received the assent of the President on Jrugust 7, 1971. It was thereafter published as the Kerala Land' RCfcmns Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution (Twentyninth Amendment) Act, 1972 which was assented to by the President on June 9, lm the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969} and Kerala Land Reforms (Amendment) Act, 1971 (Act 25 of\n\n1971) were included in the Ninth Schedule to the Constitution.\n\n( 1) ILR (1970] (II) Kerala 315.\n\n(2) (1972) 2 s.c.c. 36-1.\n\n634 SUPREME COUJl.T llEPORTS [1973] Supp. s.c.R.\n\nThe writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the constitutional validity of the Kerala Reforms (Amendment) Act (Act 25 of 1971).\n\nThe second amendment of the petition was made with a view to include the prayer to declare the Twentyfourth, Twentyfifth and Twentyninth Amendments to the Constitution as unconstitutional, ultra vires, null and void.\n\nIt may be mentioned that the Twcntyfourth Amendment related to the amendment of the Constitution. Section 2 of the Amendment Act added clause ( 4) in article 13 as under :\n\n\"( 4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.\"\n\nSection 3 of the Amendment Act read as under :\n\n\"3. Article 368 of the Constitution shall be renumbered as clause (2) thereof, and-\n\n( a) fr the marginal heading to that article, the following marginal heading shall be substituted, namely :-\n\n''Power of Parliament to amend the Constitution and procedure therefor.\";\n\n(b) before clause (2) as so re-numbered, the following clause shall be inserted, namely : -\n\n\"(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provisions of this Constitution in accordance with the procedure laid down in this article,\";\n\n( c) in clause (2) as so re-numbered, for the words \"it shall be presented to the President for his assent and upon such assent being given to the Bill,\" the words \"it shall be presented to the President who shall give his assent to the Bill and thereupon\" shall be substituted;\n\n(d) after clause (2) as so re-numbered, the following clause shall be inserted, namely :-\n\n\" (3) Nothing in article 13 shall apply to any amendment made under this article.\"\n\nUSAVANANDA v. XEMLA (Khanna, J.) 635\n\nWe may set out articles 13 and 368 as they existed both before al1d after amendment made by the Twentyfourth Amendment Act :\n\n&fore 1\"4 .Amendment\n\n13. (1) All laws inforccinthetcrritoryof India i mmediateJy . before the commencement of this Constitution, so far as they are inconsistent with the provisions of this part, shall t.o the extent of such inconsistency1 be void.\n\n(•) The State shall not make any law which takes away or abridges therigs conferred by this Part andanylawmade in contravention of this clause shall, to the extent of the contravention, be void.\n\n13. (1) All laws in force in the territory of India immediately before the commencement of this Consitution, in far so tU they are inconsiJ.. tent with the provisions of this Part,\n\nshall to the extent of such inconnistency be void.\n\n(2) The State shallnot make anyiJlw\n\nwhich takes away or abridges. ftie righ\" conferroo by.!his Part anti •r law made 10 cootravention or tbk\n\nclause shall, to the extent of the CQntravcntion, be void.\n\n(3) In this article, unl&s the context (3) In this article, unless the context otherwise requires, otherwise requires,\n\n(a) \"law\" include; any O.-dinance, order\n\nb/elaw, ru\\e;, reulatio:i, noification,\n\ncustom or usage having in the territory of India the force of law;\n\n{b)' 'laws in force'' includes lawB passed or made by a Legislature or other competent authority in the territory of. India before the commencement of tile Constitution and not previously repealed, ·notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.\n\n368. An amendment of this Constitution may be initiated only by the introdution of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership ofthat House and bya majority of not 1css than twothirds of the members of that House present and votina,, it shalJ be presented to the President for his assent and upon such assent being given to the Bill, the Constitution\n\n(a) .claw\" includes any Ordinance order, byelaw, rute, regulation, notification, custom or usage having in the territory of India the force, of law;\n\n(b) \"laws in force\" includes laws\n\npassed or made by a Legislature ... other competent authority in- 111.• territory of India before the cooimencemcnt of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then of operation either at all or in particu. lar areas\n\n(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.\n\n36.8.(1). Notwitstading anything t.n thts qonst(tuton, Parliament may\n\n1n exercise of 1ta constituent po, vcr amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.\n\n(•) An ae!'?ment of this Constitution may be lnltrated only by the introd, u ...\n\nc_tion of a Bill (qr the purpose in either House of Pariament, and wh(llg\n\n636 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nBefore th< Amendmmt\n\nshall stand am.ended in accordance with the terms of the Bill:\n\nProvided that if such amendment seeks to make any change in--\n\n(a} article 54, article 55, article 73, article 16~ or articlc241, or\n\nAfter the Amtndmtnt\n\nthe Bill is passed in each House by a majority of the total mell).bership oi that House and by a majority of not !ess than two-thirds of the members of that House present and voting, it shall be presented ro the President who shatl give his assent to thy Bill and thereupon the Constitution shall Stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in--\n\n(a) Article 54, article 55, article 73,\n\narticle 162 or article 241, or\n\n(b) Chapter IV of Part V, Chapter V (b) Chapter IV of Part V, Chapter: V\n\nof Part VI, or Chapter I bf Part XI or of Part VI, or Chapter I of Part XI or\n\n(c) any of the Lists in the Seventh\n\nSchedule, or\n\n( d) the representation of States in Parliament, or\n\n(e) the provisions of this article, the amendment shall also rCquire to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those\n\nLegislatures before thcBiIJ makingprovision for such amendment is presented to the President for assent.\n\n(c) .any of the Lists in the Seventh Schedu!e, or\n\n{d) the repre3ent:-.tion of State> in Parliament, or\n\n(e) the provisions of this article,\n\nthe amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by rerolutions to that effect passed by those Legislatures .before the Bill making pra:vision of or such amendment is presented to the President for assent.\n\n(3) Nothing in article 13 shall apply to any amendment made under this article.\"\n\nThe Constitution (Twentyfifth Amendment) Act, 1971 amended article 31 of the Constitution. The scope of the amendment would be clear from section 2 of the Amendment Act which reads as under :\n\n\"2. In article 31 of the Constitution,- ( a) for clause (1), the following clause shall be substittited namely :-\n\n\" (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified\n\nKESAVANANDA v. KERALA (Khanna, J.) 637\n\nin such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash :\n\nProvided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, refer\n\nred to in clause ( 1) of article 30, the State shall ensure that the amoWlt fixed by or determined Wlder such law for the acqufsition of such property is such as would not restrict or abrogate the right guaranteed Wlder that clause\";\n\n(b) after clause (ZA), the following clause shall be inserted,\n\nnamely :-\n\n\"(ZB) Nothing in sub-clause (f) of clause (I) of article 19:\n\nshall affect any such law as is referred to in clause:\n\n(2) .\"\n\nThe Constitution (Twentyfifth Amendment) Act also added arti' de 31C after article 31B as Wlder :\n\n\"31 C. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39, shall be deemed to be void on the ground that it is inconsistent with, or\n\ntakes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effecE to such policy shall be called in question in any court on the groWld that it does not give effect to such policy.\n\nProvided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.\"\n\nThe Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution :\n\n(i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969); and\n\n(ii) The Kerala Land Reforms (Amecdment) Act, 1971 (Kcrala Act ::5 of 1971). 41-36 S.C. IndiaJ73\n\n638 SUPREME C0URT REPORTS [19731 Supp. s.c.R.\n\nThe question as to whether the fundamental rights contained in Part Ill. of the Constitution could be taken away or abridged by amendment was first considered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India & Anr.(') In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in articles 15 and 19 of the Constitution. In addition, it provided for insertion of two articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition\n\nby the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or .abridged' an1 of the rights conferred by any provision in Part III. The word \"estate\" was also defined for the purpose of article 31A. Article 31B provided for validation of certain Acts. and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time ccmtained 13 Acts,. all relating to estates, passed by various\n\nLegjslatures. 0£ the Provinces or States. It was provided that those Acts and Regulations would not be deemed to be void or ever to have become void on the ground that they were inconsistent with or took .away or abridged any of the rights conferred by any provision of Part III. It further provided that notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, all such Acts and Regulations, subject to the power of any competent Lcgislatur~ to repeal or amend them, woula continue in force.\n\nThe attack on the . validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under article 368 were liable to be tested under article 13(2); secondly, that in any case as articles 31A and 31B inserted in the Constitution by the First Amendment affected the powers of the High Court under article 226 and of this Court under articles 132 and 136, the Amendment required ratification under the proviso to article 368; and thirdly, that articles 31A and 31B were invalid on the ground that they related to matters covered by the State List. Tills Court rejected all the three contentions. It held that although \"la'Y\" would ordinarily include constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power.\n\nIn the context of article 1.3, \"law\" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to Constitution made in the -exercise of COIIlstituent power. Article 13(2), as such, was held not\n\nto affect amendments made under article 368. This Court further held\n\n:') [1952] S.C.R. 89.\n\nKESAVANANDA ti •. KllRALA (Khanna, J.) 639\n\nthat articles 31A and 31.B did not curtail the power of this Court and -of the High Court and as such did not require ratification under the\n\nproviso contained in article 368. Finally,. it was held that articles 31A\n\nand 31B were essentially amendments to the Constitution and the Parliament had the power to make such. amendments. In consequence, the First Amendment to the Consritution was held to be valid.\n\nThe second case in which there arose the question of the power <>f the Parliament to amend fundamental rights was Saiian Singh v.\n\nStill.: of Rafezsthan ('). In this case the. Seventeenth Amendment made <>n June 29, 19611 was challenged. By the Seventeenth Amendment changes were made in article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them. complete protection trom attack under any provision of Pan III of the Constitution. One of the contentions advanced in Sajjan Singh's <:asc was that, as article 226 was like!}' to be affected by the Seventeenth Amendment, it required ratification under the proviso to article 368 and that the decision in Sankari Prasad's case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment. provided that Acts put in the Ninth Schedule would be valid in spite of the decian of the courts, it was unconstitutional. Tills Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Pra1ad' s case. This Court further held unanimously that the Seventeenth Amendment di\\I not require ratification under the proviso to article 368. The Parliament, it was held, in enacting the amendment was not legislatini: with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the Ciourt held that the power conferred by article 368 included the power to take away fundamental rights guaranteed by Part III and that. the power to amend was a very wide power which could not be controlled by the literal dictionary meaning of the word\n\n\"amend\". The word \"law\" in article 13(2), it was held, did not include an amendment of the Constitution made in pursuance of article 368. The minmity, however, doubted the correctness of the view taken in Sankari Prasad' s case to the effect that the word \"law\" in atticle 13(2) did not include amendment to the Constitution made under artlicle 368.\n\nThe correctness of the decision of this Court in Sankari Prasad's case and of the majority in Saijan Singh's case was questioned in the case of I. C. Gol, ak Nath & Ors. v. State of Punjab & Anr.(2) The case\n\n\n( 2) [1%7] 2 S.C.R. 762.\n\n640 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.\n\nwas heard by a special bench consisting of 11 judges. This Court in that case was concerned with the validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the Constitution (Seventeenth Amendment) Act, 1964. It was held by Subba Rao CJ., Shah, Sikri, Shelat and Vaidialingam JJ. Hidayatullah J. concurring) that fundamental rights cannot be abridged or taken away by the amending procedure in ariticle 368 of the Constitution. An amendment of the Constitution, it was observed, is \"law\" within the meaning of arcicle 13(2) and is, therefore, subject to Part Ill of the Constitution. Subba Rao CJ., who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and V aidialingam JJ. gave his conclusions as under :\n\n\" ( 1) The power of the Parliament to amend the Constitution is derived from Arts. 245, 246 and 248 of the Constitution and not from Art. 368 thereof which only deals with procedure. Amendment is a legislative process. ·\n\n(:<:} Amendment is 'law' within the meaning of Art. 13 of the Cqnstitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void ..\n\n(3) The Constitution (First Amendment). Act, 1951 Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1%4, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this C'..ourt, they were valid. ( 4) On the application of the doctrine of 'prospective over-ruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue t<> be valid.\n\n(5) We declare that the Parliament will have no power from the\n\ndare of this decision to amend any of the provisions of Part III of the CGnstitution so as to take away or abridge the fundamental rights enshrined therein.\n\n(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1%2, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Arts. 13, 14 or 31 of the Constitution.\"\n\nHidayatullah J. summed up his conclusions as under :\n\n\"(i) that the Fundamental Rights are outside the amendatory prooess if the amendment seeks to abridge or take away any of the rights;\n\nKESAVANANDA v. KERALA (Khanna, J.) 641\n\n{ii) that Sankari Prasad's case (and Sajjan Singh's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Arts. 13(2) and 368;\n\niii) that the Fmt, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment.\n\n(iv) that this Court having now laid down that Fundamental Rights cannot be abriged or taken away by the exercise of amendtory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it com- :plies with Part III in general and Art. 13(2) in particular;\n\n(v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be convoked; and\n\n(vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of 1965 are va1i<l under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Art. 31-A, and the President's assent.\"\n\nAs against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. gave dissenting judgments. According to them, article 368 carried the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment, acoording to the five learned Judges, was not \"la~\" for the purpose of article 13(2) and could not be tested under that article. The learned Judges accordingly reaffirmed the correctness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some of the conclusions arrived at by Wanchoo J ., who gave the judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be reproduced as under :\n\n(i) The Constitution provides a separate part headed 'Amendment of the Constitution' and Art. 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in Art. 368.\n\n(ii) There is no express limitation on power of amendment in Art. 368 nd. no limitation can or should be implied therein. If the <'.ons.t1tut10n makers intended certain basic provisions in the\n\nnstitut.Ion, and Pal'! III in particular, to be not amendable there is no reason why it was not so stated in Art. 368.\n\n<iii) The power conferred by the words of Art. 368 being unfettered, inconsistency between that power and the pro\".ision in Art.\n\n642 SuPREME cotlllT REPORTS [1973] Supp. s.c.R.\n\n13(Z) must be avoided. T.ht:refore cin klceping with. the unfettered power in Art. 368 the 'W!Ofd \"law\" in !Att 13(2) must be read as meaning 1aw passed under the ordinary legislative power and not a constitutional amendment.\n\n(iv) Though the period for which Sankari Prasad's case ha stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are S<> overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which 'the principle of: stare decisis shotild be applied.\n\n( v) The doctrine of prnspective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare\n\nl'aw and that a declaraliion made by a court is the law of the land and takes dfcct from the date the law came into force. It would be undesirable to, give up that dOctrine and supersede it with the doctrine of prospective overruling.\n\nThe main condu9ions of Bachawat J. were as tmder :\n\n(i) Article 368 not only prescribes the procedure but also gives the power of amendment.\n\n(ii) The power to amend the Consliitution cannot be said to reside in Art. 248 and List I, item <J7 because if amendment could be made by ordinaey lag!slaliive. process Art. 368 would be mea. ningless.\n\n(iii) The contention that a constitutional amendment under Art. 368 is a law within the meaning of Art. 13 must be rejected.\n\n(ivj There is no conflict between Arts. 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment.\n\n(v) If the First, Fourth, Sixteenth & Seventeenth Amendment Acts are void they do not legally exist from their inception. They cannot be valid from 1951to1957 and invalid thereafter. To say that they were valid in the past and will be invalid. in the future is to amend the Constitution. Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be adopted.\n\nWe may now set out some of the conclusions of Ramswami J. as under :\n\n(i) In a written Constitution the amendment of the Constitution is a substantive constint act which is made in the exercise of the sovereign power •through a prediesigned !procedure unconnected with ordinary legislation. The amending power in\n\nKESAVANANDA :ti. KERALA (Khanna, J.) 643\n\nAtt. 368 is hence sui generis and cannot be compared to the la\"· making power of ParI1ament pursuant to A111:. 246 •read with Lists I and III. It folloWI! that the expression 'law' in An. 13(2) cannot be construed as .including an amendment of the Constitution w.hkh is achieved by .Parliament in exercise •of its sovercigl> constituent power, but must mean law made by Parliament in. its legislative capacity under Art. 246 read with List I and List Ill of the 7th Schedule.\n\n(1.i) The language of Art. 34i8 is perfectly general and =Powers Parliament to amend the Constitution without any e:xception whatsoever. The •use of the word '.fundamental' to describe the rights •in Part III :and •the word 'guranteed' iin Art. J2 cannot lift the fundamental rights above the Constitution ltself.\n\n(iii) There is no room for an implication in the construction of Art. 368. If the CQIJstitution makers wanted certain basic features to be 11namendable they would have said so.\n\n(iv) It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to come, Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending. power and which take precedence over the general welfare of the nation and the need for agrarian and: social reform.\n\n( v) If the fundamental rights are unamendable and if Art. 368 does not include any such power it follows that the amendment of, say Art. 31 by insertions of Arts. 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other methcid will be unconstitutional and void.\n\n(vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation.\n\nBefore dealing with article 368, we may observe that there are twe> types of constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that this is the same as saying nondocumentary or documentary. Now, while it is true that a non.documentary constitution cannot be other than flexible, it is quite possible for a documentary constitution not to be rigid. What, then, is that makes a constitution flexible or rigid? The whole ground of difference here is whether the process of constitutional law-making is or is not identical with the process of ordinary law-making. The constitution\n\n644 SUPREME COURT REPORTS [1973] Supp. S.C.R.\n\nwhich can be altered or amended without any special machinery is a flexible constitution. The constitution which requires special procedure for its alteration or amendment is a rigid contitution (see p. 66- 68 of the Modem Political Constitutions by C. F. Strong). Lord Birkenhead L.C. adopted similar test in the Australian (Queensland) case of Mccawley v. The King(') though he used the nomenclature controlled and uncontrolled constitutions in respect of rigid and flexible constitutions. He observed in this connection :\n\n''The difference of view, which has been the subject of careful analysis by writers upon the subject of constitutional law, may be traced mainly to the spirit and genius of the nation in which a particular constitution has i$ birth. Some communities, and notably Great Britain, have not in the framing of constitutions fdt it necessary, or thought it useful, to shackle the complete independence of their successors. 111ey have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that cl:iose successors will possess more exprience of the circumstances and necessities amid which their lives are lived. Those constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata.\n\nGiving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution.\"\n\nLet us now deal with article 368 of the Coosti, tution. As amendments in articles 13 and 368 of the Constitution were made in purported exercise d the powers conferred by article 368 in the form it existed before the amendment made by the Twentyfourth Amendment, w• shall deal with the article as it was before that amendment.\n\nIt may be mentioned in this context that article 4, article 169, Fifth Schedule Para 7 and Sixth Schedule Para 21 empower the Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolitiion or creation of legislative councils in States. Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the .administration of tribal -areas.\n\nIt is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of article\n\n368. There are a number of articles which provide that they would\n\n( 1) [1920] A.C. 763.\n\n~.\n\nKESAVANANDA v. KERALA (Khanna, J.) 6-15\n\ncontinue to apply till such time as a Jaw is made in variance of them. • Some of those articles arc :\n\n10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and 373.\n\nThe other provisions of the Constitution can be amended by recourse to article 368 only.\n\nArticle 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is heaqed \"Amendment of the Constitution\". It is not disputed that article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether article 368 also contains the power to amend the Constitution.\n\nIt may be stated in this connection that all the five Judges who gave the dissenting judgment in the case of Golaknath, namely, Wanchoo, .Bachawat, Ramaswam~ Bhargava and Mitter JJ. expressed the view that article 368 dealt with not only the procedure of amending the Constitution but also contained the power to amend t1le Constitution.\n\nThe argumennhat the power to amend the Con<titution was contained in the residuary power of Parliament in article 248 read with item <.J7 of List I was rejected. Hidayatullah J. agreed with the view that amendment to the Constitution is not made under power derived from article 248 read with entry 97 of List I. Accordi11g to him, the power of amendment was sui generis. As against that, the view taken by Subha Rao C. J., Shah, Sikri, Shelat and Vidialingam JJ. was that article 368 nierely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution.\n\nAmendment of the Constitution, according to the provisions of article 368, is initiated by the introduction of a Bill in either/ House of Parliament. The Bill has to be passed in each House by a majority of total membership of that House and by a majority of not less than two-thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his ascent.\n\nWhen the President gives his assent to the Bill, the Constitution, according to article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to article 368 with respect to amendment of certain articles and other provisions of the Constitution including article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of not less than\n\n646 SUPREJM£ COURT REPORTS [1973} Supp. s.c.R.\n\none-half of the States by resolutions to .that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill.\n\nThe words in article 368 \"the Constiuttion shall stand amended in accordance with the terms of. the Bill'', in my opinion, clearly indicate that the said article provides not merely , tne procedure for amending the Constitution but also contains the power to amend article 368.\n\nThe act .that a separate Part was provided with the heading \"Amendment of the Constitution\" shows that the said part was confined not merely to the procedure for making the. amendment but also contained the power to make the amendment. It is no doubt true that article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it carn)JO(, in my opinion, include the power to amend the Constitution. The power to legislate contained .in articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is con tained in article 248 read wi:th item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be ones like those contemplated by articles 4 and 169 which expressly provide for a law . being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter.\n\nArticle 248 read with entry 97 List I conteniplates legislative process. If the amendment of the Constitution were such a legislative , process, the provi<ion regarding .ratification by the legislatures of not less than one-half of the States in respect of certain amendments of the Constitution would be meaningless because there is no question of ratification of a legislation , made by Parliament in exercise of the power conferred by article 248 read with entry 97 List I. It is noteworthy that ratification is by nieans of. resolutions by State Legisla\" tures. The passing of resolution can plainly be not considered to be a legislative process for makting a law. The State Governors also do not come into the picture for the purpose of ratification. The State Legis~ latures in ratifying, it has been said, exercise a constituent function.\n\nRatifying proces<, according to Orfield, is equivalent tD roill call of the\n\nStates. Ratification by a State of constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the States to the. proposed amendment ·(see The Amending of the Federal Constitution p. 62-63). '\n\nEESAVANANDA II. Kl!llALA (Khanna, J.) 647\n\nThe fact that the marginal note of article 368 contained the words \"Procedure for Amendment of the Constitution\" would not detract from the above conclusion as the marginal note cannot control the scope of the article jtself. As mentioned earlier, the words in the article that \"the Constitution shall stand amended in accordance with the terms of the Bill\" indicate that the power to amend the Constitution is also contained in article 368. The existence of such a power which can clearly :be discerned in the scheme and language of article 368 cannot be ruled out or denied by invoking the marginal note of the article.\n\nThe various subjects contained in entries in List I, List II and List III of Seventh. Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was . not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the' said distribution of lists and the residuary provisions in the Gowernment of India Act, Gwyer C. J. observed in the case In re. The Central\n\nProvinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, !938(').\n\n\"The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists.\"\n\nOur Constitution-makers made list of the legislative entries still more exhaustive and the intention obvi.ously was thatthe subjects mentioned should be covered by one or other of the specific entries, so that as few snUjects as possible and which did not readily strike to the Comti· tution-makers should be covered by the residuary entry 97 in List !.\n\nThe Constitution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under articles 245. 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they rtalised the importance of the subject of amendment. of the (', onstitution. It is difficult to holcl that despite their awareness of the importance of constitutional amendment, they left it to be dealt with under and spelt out of entry 97 List I which merely deals with \"any .other matter not enumerated in List II or List III including anv tax\n\nnot mention¢d in either of those lists.\"\n\n( 1) [1939) :f.C.R. 38.\n\n648 SUPIU!Ml! COURT UPORTS [ 1973) Supp,, s.c, a.\n\nThe residuary entry is essential in a federal consti!IU, tion and the sole object of the residuary entry is to confer on the , fede, t:; tl)cgis\\atUl'C ·· or the State Legislatures, as the case my be, the power ~11.makc .ordinary laws under and in accordance with the Constitut, ioi:i in respect d any matter, not enumerated in any other list for lcgiilati911 •. By the\n\nvery nature of things, the power to amend the Constitution,., cannot be in the residuary entry in a federal £onstitution. because th.e power to amend . the Constitution would also include the power . to alt~ the distribution of subjects mentioned in different entries. S11ch a .power <:an obviously be not a legislative power.\n\nIt was originally intended that the iesiduary power of legislation should be .vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehnt in the Constiwent Asseni- . bly before the partition of th~ country on December 13, 1946 (ie~ Con\n\nstituent Assembly debates, Vol I, p. 59). After .the partition,. the rcsi- <lu~ power .of legislation was vested in the Centre and was taken out of l:he State List. If the intention to vest residuary powers in States had . been eventually carried out, no argument could possibly hav.e been advanced that the power to amend the Constitution was possessed by the States and not by th~ Union. The fact that subsequently the Constitutent Assembly vested the iesiduary power in the Union Parliam.ent subject to ratification by State Legislatures in c~ cases, would not go to show that the residuary clause included the, power to amend the Constitution.\n\nI am therefore of the view that article 368 prescribes not only the procedure for the amendment of the Constiifution . but also . confers power of amending the Constitution.\n\nIrrespective of the source of power; the words in article 368 that \"the Constitution shall stand amended\" indicate that the procds of making amendment prescribed in article 368 is a self-executing pro.\n\n'CCSS. The article shows that once the procedure prcscrilicd in that\n\n:?rticle has been complied with, the end product is the amendment Of the Constitution.\n\nQuestion then arises as to whether there is any power under artidi: 368 of amendment of Part III so as to take away or abridge fundamental rights. In this pcct we find that article 368 con Ill.ins provisions\n\nrelating to amendment of the Constitution. No words are to be f0und in article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in\n\narticle 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words \"the Const'1tution shall stand amended\" plainly cover the various articles\n\nKESAVANANDA \"· KERALA (Khanna, J.) 649\n\nof the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of construction that while dealing with a constitution every word is to be expounded in its plain, obvious and commonsense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss (see Story on Constitution of the United States, Vol. I, Para 451). It has not yet been erected intO a legal maxim of constitutional construction that words were meant to conceal thoughts. If framers of the Constitution had intended that provisions relating to fundamental rights in Part III be not amended, it is inconceivable that they would not have inserted a provision to that effect in article 368 or elsewhere. I canoot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt.\n\nIn the case of The Queen v. Burah(') Lord Selborne observed:\n\n\"The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms ofthe instrument by which, affirmatively, the legislative powers were created, .and by which, negatively, they are .restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express cqndition or restriction by which that power is limited, ... it is not for any court of justice to inquire further, OI to enlarge constructively those conditions or restrictions.''\n\nAlthough the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in tM context of the power of amendment of the constitution.:\n\nIt also cannot be said that even though the framers of the Constitution intended that Part III of the Constitutibn relating to fundamental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the . proceedings dated September 17, 1949 of the OQnstituerit Assembly shows that an amendment to that effect was. moved by Dr. P. S. Deshmukh. This amendment which related to insertion of article 304A\n\n( 1) [1878] 3 A.C. 889 at p. 904-5\n\n650 SUPREME COURT REPORTS [ 1973] Supp. s .. c.R •\n\n. after article 304 (which corresponded to present article 368) was m the following words : \"'Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.\"\n\nThe above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution.\n\nBefore the Constitution was framed, Mr. B. N. Rau, Constitutional Adviser, sent a questionnaire along with a covering letter on March 17, 1947 to the members of the Central and Provincial Legislatures.\n\nQuestion 'Zl was to the effect as to what provision should be made regarding the amendment of the Constitution. The atrention of the members of the Central and Provincial Legislatures was invited in this context to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Constitutions. Some of those constitutions placed limitations on the power of amendment and contained express provisions in respect of those limitations. For instance, article 5 of the United States contained a proviso \"that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect tlhe first and f1>urth clauses in the ninth section of the first article and that no State, without its consent, sthall be deprived of its equal suffrage in the Senate\". It is inconceivable that, despite the awareness of the fact that in the constitution< of other countries where restriction was sought to be placed on the power of amendment an express provision . to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental right. On the contrary. there is clear indication that the Drafting Committee was conscious of the need of having an express provision regarding limitation on the power of amendment in case such a limitation was desired.\n\nThis is clear from article 305 of the Draft Constitution which immediately followed article 304 corresponding to article 368 of the Constitution as finally adopted. Article 305 of, the Draft Constitution, which was subsequently dropped, was in the following terms :\n\n\"305. Notwithstanding anything contained in article 304 of this Constitution, the provisions of this Constitution relating to the\n\nKESAVANANDA v. KERALA (Khanna, J.) 651\n\nreservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the commencement of this Constitution .and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution.\" .\n\nArticle 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on tha power of. amendment in case such a limitation was desired.\n\nThe fact that in the Constitution as ultimately adopted, there was no provision either in article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended.\n\nThe speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority.\n\nTo that category belonged articles 2 and 3 of the Draft Constitution relating to the creation and reconstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by tw<>-thirds majority of members present and voting in each Home of Parliament. The third category dealt with articles which not only required tvlio-thitds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.\n\nIt may be mentioned that according to the report of the Constituent Assembly debates, the speech of Dr. Ambedkar delivered on September 17, 1949 contains the following sentence :\n\n\"If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that is neces..\n\nsary for them is to have two-thirds majority.\" (Vol IX, P. 1661)\n\nThe words \"Part III\" in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft article 304 (present article 368) which required tw<>-thirds majori~ and ratification by at least half of the State Legislatures. These words do nol refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the context of the\n\n652 SUPBEME COURT lll!POJ.TS [1973] Supp. S.C.L\n\nentire speech and strike a discordant n<>l'e against the rest of the speech.\n\nIndeed, the entire. tenor of the above speech, as also of the other speeches delivered.by Dr. Abedkar k the Constituent Assembly, was that all the a#icles of the COnstitution were subject cto the amendatory process.\n\nAnother fact which is worthy of note is that the Constitution (First Amendment) Act, 1951 was passed by the Promiona!Parliamerit which had also acted as the constituent Assembly for the drafting of the Constitution. By the First Amendment, certain fundamenial llights contained in article 19 were abridged and amended. Speeches in suppon of the First Amendment 'Ycrc made by Pt. Nehru .and Dr.\n\nAmbcdkar. It . was taken for granted that the :Parliament had .bY adhering to the procedure prescribed in article 368 the right to amend the Cbnstitution, including Part III relating to fundamental rights; Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly conceded that Parliament had the power to make the .aforesaid amendment.\n\nIf it had ever been the intention of the ffamcrs of the Constitution that the provisions relating to fundamental right&\n\ncontained in Part III of the constitution cotM .not be amended, it ia difficult to believe that Pt. Nehru and Dr, Ambedkar who played such an importan~ role in the drafting of the Constitullion \\Vould have supported the amendment of the constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended 80 a.~ to take. away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of g .tht COnst:itution adaptable to changing social and ecQllOn:U~· .cooctitions and changing ideas observed :\n\n\"It is of. the utm091: importance that people .m9Ukl rean.e tha~ this great Constitution of ours, over which we]aboiJrcd fot:. so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is rcsponsive .. to, the•f(9llle's will which is responsive to thci.r ideas, in that, it can be .:vamP here and there, they will respect it all the more. 3tlli tllcy will~ fight against, when we want to change i1;. Othcrwi$e, # you make them feel that it is unchangeable .and cannot .. bi: touched, the only thig to be. done by th05C '!ho wish to dui~ it is to. try to break 1t. That 1s a dangerous thing and a bd thing. Thet~ fore, it is a desirable and a good thing ror people to.realise that .ildf very fine COnstitutiori. that we have .fashioned after years <IE fabolm is good in so far as it goes but as society changes,- ~·· coc4itjG11$ change we amend it in the proper way. It is not like. the,~ tcrable law of the Mcdes and the Persians that .. it dnnQt be changed, although the world around may . clMnge.\"\n\nKESAVANANDA ti, KllALA (Khanna, J.) 653\n\nThe First Amendment is contemporaneous practical exposition of . the power of amendment under article 368. Although .as observed cil, sewhere, the provisions of article 368 iii my view are plain and unambiguous and contain no restrictions so far as amendment of Part III is concerned, even if it may be assumed that the matter is not free from doubt the First Amendment provides clear evidence of how the provisions of article 368 were construed and what they were intended and assumed to convey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The contemporaneous prac. tical exposition furnishes considerable aid in resolving the said doubt and construing the provisions of the article. It would be pertinent to reproduce in this context the observations of Chief Justice Puller while speaking for the US Sur, rcmc Court in the case of William McPhersott v, Robert R. Blacker : ()\n\n\"The founcrs ol the COnstitutiort employed words. in tliCh: natural sense; and where they arc plain and clear, resoh to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where ther, e is ambiguity or doubt, or where tw0 views may well be entertained contempora~ neous and subsequent practical construction arc entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration soplainly sustains their position as to entitle them to o)>ject that contemporaneous history. and practical construction are J¥)t to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of . interpretation thus afforded, we arc of. opinion that such doubt is thereby resolved against thetp, the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken\n\nor ontrolled.\"\n\nI may also reproduce in: this context the following passage from pages 49-50 of Willoughby's Constitution of the United States, VoL I: \"In Lithographic Company v. Sarony(2 ) the court declared~ The construction placed upon the Constitution by the first act of\n\n1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself enllitled to very great weight, and when it is remembered that the rights thus established have not been\n\ndisputed during a period of nearly a century, it It. almost canclusive.\"\n\n( 1) 146 U.S. !. (') lll U.S. 53. 42-36 S.C. India/73\n\n1554 SUPREME COURT REPORTS [ 1973) Supp. s.c.R.\n\nSo far as the question is concerned as to whether the speeches made in the Constituent Assembly can be tak.en into consideration,\n\nthis Caurt has in three cases; namely, /. C. Golak Nath & Ors. v. State of Puniab & Anr. (supra), H. H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India(') and Union of India\n\n'V. H. S. Dhillon(2 ) taken the view that such speeches can be taken\n\ninto account. In Golak Nath's case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr.\n\nAmbedkar . on page 791. Reference was also made to the speech of Dr.\n\nAmbedkar by Bachawat J. in that case Oll1 page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see page 83). Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillon's case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the 'Constituent Assembly in support of the conclusion arrived at. It can,\n\ntherefore, be said that this Court has now accepted the view in its decisions since Golak Nath's case that speeches made in the Constituent Assembly can be referred t'O while dealing with the provision of the Constitution.\n\nThe speeches in the Constituent Assembly,· in my opinion, caiJ. be referred to for finding the history of the constitutional pro\\'.ision and the background against which the said provision was drafted.\n\nThe speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constit!Uent Assembly does not absolve the court from performing that task. The draftsmen are supposed to have expressed their intentions in the words used by them in the provisions.\n\nThose words are final repositories of the intention and it WllJUld be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered.\n\nThe next question which arises for consideration is whether the word \"law\" in article 13(2) includes amendment of the Constitution.\n\nAccording to article 13(2), the State shall not make any law which takes away or abridges the rights conferred by this Part and any\n\n(1) [1971) 3 S.C.R. 9.\n\n( 2) [1972) 2 S.C.R. 33.\n\nKESAVANANDA v. KERALA (Khanna, J.) 655\n\nlaw made in contravention of thls clause shall, to the extent of the contravention, be void. \"State\" has been defined in article 12 to include, unless the context otherwise requires, the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The stand taken on behalf of the petitioners that amendment of the Constitution constitutes \"law\" for the purpose of article 1;3(2). Al; such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to clause (1) of article 13, according to whlch all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word \"law\" in article 13(2) should have the same meaning as that word in article 13(1) and if law in article\n\n13(1) includes constitutional law, the same should be its meaning for the purpose of article 13(2). Our attention has also been invited to article 372(1) of the Constitution whlch provides' that notwithstanrung the repeal by this Constitution of the enactment referred to in article 395 but subject to the other provisions of the Constit!ution, all the law in force in the territory of Inrua immediately before the commencement of thls Constitution shalt continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.\n\nAccording to Explanation I to article 372, the expression \"law in force'' shall include a law passed or made by a Legislallure or other competent authority in the territory of India before the commencement of thls Constitution and not previously repealed notwithstanding that lt or parts of it may not be then in operation either at all or in particular areas. The same is the definition of \"law in force\" in article 13(3).\n\nI find it difficult to accept the contention that an amendment of Constitution made in accordance with article 368 constitutes law for the purpose of article 13(2). The word \"law\" although referred to in a large number of other articles of .the Constitution finds no mention in article 368. According to that article, the Constitution shall stand amended in accordance with the terms of the Bill after it has been passed in compliance with the provisions of that article. Article 368 thus contains an indication that what follows as a result of the compliance with article 368 is an amendment of the Constitution and not law in the sense of being ordinary legislation. In a generic sense. \"law\" would include constitutional laws, inclurung amendment of the Constitution, but that docs not sccni to be the connotation of the word \"law\" as used in article 13(2) of the Constitution. There is a clear distinction between statutory law made in exercise of the legislative power and constitutional law which 'is inadc in exercise of\n\n656 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nthe constuent power and the distinction should not be lost sight of.\n\nA constitutii:>n is the fundamental and basic law and provides the authority llljldier which ordinary law is made. The Constitution of West Ge11lilll)ly, it may be stated, is called the basic law of the Federal Republic of Germany. A conStitution derives its authority generally from the . pebple acting in their sovereign capacity and speaking through tlieiti representatives in a Constituent Assembly or Convention. It relates to the sttucture of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding drdinary laws oin the point of time and embracing the\n\nsettled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject' to the superior authority, which is thJ;- constitution. Statutes are enactments or rules for the government of civil conduct or. for the administration or for the defence of the government. They relate to law and 9rder, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite oftep, tentative, occasional, and in the nature of temporary c.xpediCJlts ( ste Constitutional Law and lts Administration by S.P.\n\nW caver, p. 3) Articl.c 13(2) has merencc to ordinary piece of legislation. It would also, in view of the definition given in clause (a) of article 13(3), i\\ldude any ordinance, order, bye-law, rule, regulation, notificatlion, custom or usage having 'in the territory of India the force of law. The Constitution has thus made it dear in matters in which thcte could be some doubt as to what would constitute \"law''.\n\nIf it had been the intention of the framers of the Constitution that the \"law\" in article 13 would also include constitutional law including laws relating to the amendment of Constitution,· it is not explained as to why they di<\\ not expressly so state in clause (a) of article 13(3).\n\nThe Constitution itself contains indications of the distinction between the constitution and tht laws framed under the Constitution. Article 60 ptovides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been couched, though not crucial, has some bearing. The form of the oath or affirmation is as under :·\n\n\"I A. d swear in the name of God '\n\n.B., 0 solemnly affirm\n\nthat I will faithfully execute the office of President (or dicharge the functions of the President) of India and will to the best of my ability preserve, protcet and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India..,.\n\nKESAVANANDA I'. ORAL\\ (Khanna, J.) 657\n\nThe facts that both the words \"the Constitution and the law~ have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are not the same.\n\nIt may be mentioned that articles 56{l)(b) and 61(1) which deal with impeachment of the President refer only to \"violation of the Constitution\". T)lere is no reference in those articles to violation of law. Article 69 which prescribes the oath for the Vice-President refers to \"allegiance to the Constitution as by law established\". The words \"as by law established\" indicate the legal origin of the Constitution.\n\nArticle 143, to which our attention has been invited, gives power to the President to refer to the Supreme Court a question of law or fact of such importance that it is expedient to obtain the opinion of this Court. It is pointed out that question of law in that article would include a question relating to constitutional law. This no doubt is so but this is due to the fact that words \"questions of law or fact\" constitute a well known phrase in legal terminology and have acquired a particular significance. From. the use of those words in article 143 it cannot pe inferred that the framers of the Constitution did not make a distinction between the Constitution and the law.\n\nArticles 245, 246 and 248 deal with the making of laws. The words \"shall not m~ any law\" in article 13{2) seem to echo the words used in articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words \"make any law\" in article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law inade in exerciJle of legislative power. In addition to that, the law in arliicle 13 in view of the definition in article 13(3) shall , also include spcc'ial provisions mentioned in clause (3).\n\nIt has already been mentioned above that there is no question in the case of a law made by the Parliamnt of its ratification by the resolutions passed by the 'State Legislatures. The fact that in case of some of the amendments made under article 368 such ratification is necessary shows that an amendment of the Constitution is not law as -contemplated by article 13(2) or articles 245, 246 and 248.\n\nArticle 395 of the Consiiaution rcpcakd the Indian Independence Act, 1947 and the Government of India, Act, I935, together with all -enactments amending or supplementing the latter Act, but. not inclu- <ling the Abolition .of Privy Council Jurisdiction Act, 1949. The law\n\nin fori:e mentioned ln article 372(1) has reference not to any constitu tional law in the sense of being a law relating to the constitution cl.\n\neither the territory of ers!Whlle British India or the territory comprised in the Indian States. So far as the territory of British India was con\n\ncerncd, the law before January 26, 1950 relating to the constitution was contained in the Government of India Act, 1935 and the Indian In-\n\n658 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\ndependence Act, 1947. Both these Acts were repealed by article 39S\n\nwhen the Constitution of India came into force. As regards the territory comprised in Indian States, the law relating to their constitutions in so far as it was inconsistent with the provisions of the Constitution of India also came to an end before January 26, 1950 when the said Constitution came into force. The only constitution which was in force since that date was the Constitution of India and it applied to the whole of India, including the erstwhile Indian States and the British India.\n\nThe various notifications which were issued before January 26, 1950 mentioned that with effect from that date \"the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such\" (see White Paper on Indian States, pages 365 to 371).\n\nIt would thus appear that hardly any law containing the constitutions of territory of erstwhile Indian States remained in force after the coming into force of the Constitution of India with all its exhaustive provisions.\n\nIf the law in force contemplated by article 372(1) must be such as was continued after January 26, 1950, it would follow that article 372 does not relate to the constitutional law in the -sense of being law relating to the constitution of a territory.\n\nAlthough the law in force referred to in article 372(1) would not include law relating to the constitutions of the territory of erstwhile British India or the Indian States, it did i.rwlude law relating to subjects dealt with by the constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those constitutions, continued in force under article 372(1). A statutory law or Order is obviously of an inferior character and cannot have the same status as that of a constitution. Article 372(1) in the very nature of things deals with laws made under the provisions of constitutions which were in force either in the erstwhile British India or the territory comprised in Indian States. The opening words of article 372(1) \"'notwithstanding the repeal by this Constitution of the enactments referred to in article 395\" indicate that the laws in force contemplated by article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other Jegislative enactment> or orders made under the provisions of constitutions of erstwhile Indiarl States. Such legislative enactments or Orders were inferior in status tc> a Constitution. I am, therefore, of the view that the word \"law\" in article 372 has reference to law made under a constiiution and not to the provisions of a constitution itself.\n\nArticle 372 ( 1) is similar to the provisions of section 292 of the Government of India Act, 1935. As observed by Gwyer C. J. iu the-\n\nKESAVANANDA v. KERALA (Khanna, J.) 659\n\ncase of The United Provinces v. Mst. Atiqa Begum and Ors., (1 ) such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. .The question with which we are concerned is whether law in article 13 or article 372 could relate to the provisions of the Constitution or provisions rr.· lating to its amendment. So far as that question is concerned, I am of the opinion that the language of articles 372 and 13 sh<>ws that the word \"law\" used therein did not relate to such provisions. The Consti\n\ntution of India was plainly not a law in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be matle only after the Constitution comes into force.\n\nAs such, a law providing for amendment of the Constitution cannot constitute law in force for the purpose of article 13(1) or article 372(1).\n\nThe language of article 13(2) shows that it was not intended to cover amendments of the Constitution made in accordance with article\n\n368. It is difficult to accede to the contention that even though the framers of the Constitution put no express limitations in article 368 on the power to make amendment, they curtailed that power by implication under article 13(2). In order to find the true scope of article 13(2) in the context of its possible impact on the power of amendment, we should read it not in isolation but along with article 368. The rule of construction, to use the words of Lord Wright M. R. in fames v.\n\nCommonwealth of Australia,(') is to read the actual words used \"not in vacuo but as occurring in a single complex instrument in which one part may throw light on another\". A combined reading of article 13(2) and article 368, in my view, clearly points to the conclusion that extinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amendatory power conferred by article 368. The alleged conflict between article 13(2) and article 368 is apparent and noi real because the two provisions operate in different fields and deal with different objects.\n\nThe Constitution itself treats the subject of ordinary legislation. as something distinct and different from that of amendment of the\n\nConstitution. Articles 245 to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution Js the subject matter of article 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does not contain the words \"subject to the\n\nprovisions of this Constitution\" as are to be found at the beginning of article 245. The absence of those words in article 368 thus shows that an amendment of the Constitution made under that article has a statu~\n\n( 1) [1940] 2 F.C.R. IlO.\n\n( 2) [ 1936] A.C. 578.\n\n660 $UPllEMl! COUllT REPOllTS [1973} Supp. S.C.ll.\n\nhigher than that of legislative law and the two arc of w1cqual dignity.\n\nIf there is any !imitation on power of amendment, it must be found in article 368 itSclf which is the sole fountain-head of power to amend, and not in othci; provisions dealing . with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orficld, 'limitation on the scope of amendment should be found written in the amending clau!e and the other articles of the Constitution should not be viewed as limitations'. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put i.n the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the twq powers are different in character and operat'e in separate fields. There i, s also a vital difference in the procedure for passing ordinary legislation. and that for bringing about a constitutional amendmenr under article 368. The fact that an. amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor docs it warrant the conclusion that constituent power is a species of legislative power.\n\nOur attention has been. invited on behalf of the petitioners to the proceedings of the Constituent Assembly on April 29, 1947. Sardar Patel on that day made a move \\.n the Constituent Assembly that clause (2) be accepted. Clause (2) which provided the basis for clauses\n\n(1) and (2) of article 13 as finally adopted was in the following words :\n\n\"AH existing laws, notificatkms, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union\n\nor any unit make any law taking away or abridging any such right.\"\n\nMr. I,{. Santhanam then moved an amendment for substituting the concluding words of clause (2) by the following words :\n\n\"Nor shall any such right be taken away or abridged except by an amendment of the constitution.\"\n\nThe above amendment was accepted by Sardar Patel. Motion was thereafter adopted accepting the amended clause which was in the fo!IOl\\Ving words :\n\n\"All existing laws, notificatios, regulations, customs or usages in force within the territories of the Union inconsistent with the rights\n\nguaranteed under that part of the constitution shall stand abro. gated to the 'extent of such inconsistency, nor shall any such right be taken away or abridged except by an amendment of the Constitution.\"\n\nKESAVANANDA v. KERALA (Khanna, J.) 661\n\nIn October 1947 the Constitutional Adviser prepared the Draft Constitution, sulxlause (2) of clause 9 of which was as under :\n\n\"(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away any of the rights conferred by Chapter II of this Pat except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.\"\n\nMinutes of the Drafting Committee of October 13, 1947 show that it was decided to revise clause 9. Revised clause 9 was put in the appendix as follows :\n\n\"9. (1) All laws in force immediately before the comme!lcement of this Constitution in the territory of India, in so far as they are inconsistent with any of the provisions of this Part, shall, to the extent of such inconsistency, be void.\n\n(2) The State shall not make law which takes away or abridges th, e rights conferred by this Part and any law made in contravention of this sub-section shall, to the extent of the contravention. be void.\n\n(3) In this section, the expression 'law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.\"\n\nOn February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in thi, s Draft Constitution was numbered as clause 8. Sub-clause (2) of clause 9 was retained as sub-clause (2) of\n\nclau•e 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained article 13, the provisions of which have been reproduced earlier.\n\nIt has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised clause 9 of tl1e Draft Constitution prepared by th~ Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which hacl been accepted by the Con. stituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the Constitution.\n\nI find it difficult to accept the above argument It is inconceivable that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accep-\n\n662 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause containing that amendment. It would appear from the speech of Mr. Santhanam that he. had moved the amendment in order to remove doubt. Although there is nothing in the minutes to show as to why the members of the Drafting Committee did not specifically incorporate Mr. Santhanam's amendment in the revised clause, it seems that they did SO because they took the view that it Wai unnecessary. In his letter dated Febmary 21. 1948 Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly;\n\n\"In preparing the Draft the Drafting Committee was of course expected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has. endeavoured to do as far as possible. There were however some matters in respect of which the Drafting Committee felt it necessary to suggest certain changes.\n\nAll such changes have been indicated in the draft by underlining or side-lining the relevant portions. C'.:ire has also been taken by the Drafting Committee to insert a footnote explaining the reason for every such change.\"\n\nIt is, therefore, plain that if it had been decided to make a material change in the draft atticle with a view to depart from the decision of the Constituent Assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sideliniog or footnote, it can be presumed that members of the Drafting Committee did not intend to make a change. A very material fact which should not be lost sight of in this context is the note which was put in October 1948 under the draft article 8. It was stated in the Note :\n\n\"Clause (2) of article 8 does not override the provisions of article\n\n304 of the Constitution. The expression \"law\" used in the said clause is intended to mean \"ordinary legislation\". However. to remove any possible doubt, the following amendment may be made in article 8 :\n\nIn the proviso to clause (2) of article 8, after the words \"nothing in this clause shall\" the words \"affect the provisions of article 304 of this Constitution or be inserted.\" (see page 26 Shiva Rao's \"The;,.. Framing of India's Constitution\" Vol.\n\nIV).\n\nThe ab0ve note and other such notes were made by the Constitutional\n\nAdviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao's \"The Framing\n\nKESAVANANDA v. KERALA (Khanna, J.) 663\n\nof India's Constitution\" Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted tl>e view embodied in the decision of the Constituent Assembly.\n\nApart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in article 368 express! y guaranteeing the continued existence of fundamental rights in an unabridge~ form. This was, however, not done.\n\nThe next question which should now engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a country and concerns itself withi the\n\nproblems of the Government. This is so whether the Government qriginates in a forcible seizure of power or comes into being as the result\n\nof a legal transfer of power. At the time of the framing of the Consti tution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compr<>- niise between conflicting views. Those who frame a Constitution can not be oblivious of the fact that in the working of a Constitution rnany difficulties would have to be enccuntered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-baS'ed and put life into the dry bones of a Constitution so as to make it a vehicle of a nation's progress. Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was concern plated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-constitutional methods of chan\n\nging the Constitution. The extra-constitutional. methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some change, JS was said by Burke in his Reflections oii\n\nRevolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished th~ most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis\n\n664 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nPhillipe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power cxisliCd legally capable of: altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey:\n\n\"Nor ought the perils in which France was involved by the immutability with which the statement of 1848 'invested the constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of t.he law into conflict with the will of the really supreme power in the Sta~. The majority of the French electors were under the constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid const, itutio11 has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility .of French const'itutions has provoked. revolution; the flexibility of English Constitutions has, once at least, saved them from violent overthrow.\"\n\nThe above observations were amplified by Dicey in the following words:\n\n\"To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a poli1; ical revolution under the guise of a legal reform.\n\nThe rigidity in short, of a constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances occasion or provoke revolution.\"\n\nAccording to Finer, the amending clause is so fundamental t!O a constitl)- tion that it may be called the constitution itself (see The Theory and Practice of Modern Government, p. 156-157). The amending clause, it has been said, is the most important part of a constitution. Upon its exi&- tence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution. A constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organized in the consti!I)-\n\n' •\n\nKESAVANANDA v. KERALA (Khanna, J.) 665\n\ntion; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137). Burgess further expressed himself in the following words:\n\n\"It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter i.9 the existence of the body after the spirit has departed. When, in a democratic political society; the well-matured, long and deliberately formed will of the undoub~ majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and voilence as there i.9 from .the caprice of the majority, where the sovereignty of die bare majority is acknow- / !edged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign.\" (ibid p. 152)\n\nJustfying the amendment of the Constitution to meet the present canditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.\n\nAccording to John Stuart Mill, no constitution can expect to be permanent unless it guarantees progress as well as order.\n\nHuman societies grow and develop with the lapse of time, and unless provision is made for such constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J. W. Garner p. 536, 537).\n\nWillis in h'.is book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitutfon in th• following words:\n\n\"Why should change and growth in constitutional law stop with the present? We have always bad change and growth, We have needed change and growth in the past became there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in. our constlitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention ex. pected changes in the future : otherwise they would i; ot have p~ vided for amendment. They wanted permanency or our Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present.\"\n\n666 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nPleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, Willis wrote :\n\n\"If no provision for amendment were provided, there would be a constant danger of revolution.\n\nIf the method of amendment were made too euy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the constitution is to make it possible gradually to change the constitution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental. law to correspond with such social change.\"\n\nWe may also recall in this connection the words of Harold Laski in his tribute to Justice Holmes and the latter's approach to the provision of the US Constitution. Said Laski :\n\n\"The American Constitution was not made to compel the twentieth-century American to move in the swaddling clothes of his ancestors' ideas. The American Constitution must be moulded by reason to fit new nee& and new necessities . . . . . . . . . . . . . • The law must 'r'ccognize change and growth ev, en where the lawyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish.\"\n\nAccording to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A constitution has to work not only in the environments it was drafted, but also centuries later (su Some Characteristics of Indian Constitution, p. 14-15). It has consequently been~ observed by Jennings:\n\n\"The real difficulty is tha' the problems of life and society ae infinitely variable. A draftsman thinks of the oblems that he can foresee, but he sees through a glass, darkly. He cannot know .i.vhat oblems will arise in ten, twenty, fifty or a hundred 'years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen.\"\n\nThe machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the rcquisities of growth and on the other hand to those of conservatism. The letter of the\n\nKl!SAVANANDA v. KllRALA (Khanna, J.) 667\n\nconstitution must neither be idolized as a sacred instrument with that mistaken conservatism which cling to its own worn out garments Ulltil the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary tatute (see Political Science and Government by J. W. Garner, p. 538).\n\nThe framers of our Constitution were conscious of the desirability of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy; change with continuity can mean progress; and continuity without change can mean no progress.\n\nThe Constitution-makers have, therefore, kept the balance between the danger of having a non-amendable constitution and a constitution which is too easily amendable. It has accordingly been provided that except for some not very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of Parliament by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of each House present and voting. Provisron is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the legislatures of not less than one half of the States by resolution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is not so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary . statute. The fact that during the first two decades after the coming into force of the Constitutlion the amending Bills have been passed wihout much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. Thls circumstance cannot obliterate the fact that in normal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is not so easy.\n\nAnother circumstance which must not be lost sight of is that 110 generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapabh! of change, alteration and replacement even though the future generations want to change, alter or replace them. The\n\n668 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\nguidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than constitutional. It would be nothing short of a presumptous and va:in act and a myopic obsession with •1ts own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui iuris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting fi:om the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said: \"Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute ne:idier in the individual nor in the humanity ... \"\n\n(see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in \"Mr. Justice Holmes\" 931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane sphere of a constitutional provision. An unamendable constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office lefr to the people is to build thrones out of the stones of their sepulchres (see Political Science and Government by J. W. Garner pages 537, 538).\n\nAccording to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation set.~ before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all.\n\nGovernment is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, this principle of liberty, that there must be e freest right and opportunity of adjustment.\n\nPolitical liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease d progress ofaffairs and the contentment of the citizen\n\n(see Constitutional Government in the United States by Woodrow Wilson, p. 4-6).\n\nKESAVANANDA ti. KERALA (Khanna, J.) 669\n\nEach generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revision or opportunity for revision of constitution every tlln.eteen years. Said the grea~ American statesman :\n\n\"The idea that institution's established for the use of the nation cannot be touched or modified, een to make them answer their and, because of rights gratuitiously supposed 'in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculca.te this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs' to the dead and not the living.\"\n\nThe above words wore quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975)\n\nThomas Paine gav~ expression to the same view in the following words:\n\n\"There never did, there never will, and there never can, ex1st a parliament, or any description of men, or any generatioo of men, in 'any country, possessed of the right or the power of binding and\n\ncontrolling posterity to the 'end of time', or of commanding for ever how the world shall be governed, or who shall govern it; and therefore, all such clauSes, acts or declarations by which the • makers of them attempt to do what they have neither the right nor the poWer to do, nor• take' power to execute, are in thcmseles null and voitl. Every age and gelieration must be as free to act £0r itself in all case~ as; the ages and generations which pl'O' ceded it The vaniry :ind. presumption of govern1ng beyond the grave is .the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation. a property in the gcneratiohs wlUi:h are to follow.\" W c may also reproduce the words of Pt. . Nehru in h'is speech to the Constituent Assembly on Novci:nbcr 11, 1948:\n\n\"And tcm=hcr this.- that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is nd permanence iii Constitutions. Their should be 43-36 s.c. India/73\n\n670 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\na certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of living vital organic people. Therefore it has to be flexible.\"\n\nIf it is not permissible under article 368 to so amend the Constituclon as to take away or abridge tho fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-constitutional methods like revolution. Although, in my opinion, the language of art'icle 368 is cbr and, contains no limitation on the power to make amendment so as to take away or abridge fwidamental rights, even if two intorpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by article 368 and the other according to which the only way of bring'ing about such a result is an extra-constitutional method like revolution, the cqurt, in. my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the constitution and the extra-constitutional method with all its\n\ndanrous potentialities the former method is to be preferred. The contrast between the two methods fa so glaring that there can hardly be any difficulty in making our choice. between the two alternatives.\n\nThe aforesaid discussion would af.so reveal that the consequences which: would follow from ihe acceptance of the view tihat there is no power under article 368 to abridge or take away fundamental rights Would lie chaotic because of the rtsort tO\" extra-constitutional methods.\n\nAs against that the acceptance of 'the opposite view would not result fa such con5equences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.\n\nI may at this stage deal with the question, adverted to by the learntd counsel for the petitioners as to how hr the consequences have to be taken into account in construing the proviSi.ons of the Constitution. fa this connection, I may observe that it i~ one of the well-settled rules of construction that if the words of a statute are in themselves\n\nprec:~ and unambiguous, no mi>re is necessary than to expound those words in their natural and ordinary sense, the'words themselves in such <:ase best declaring tihe intention of the legislature. It is equally well- ·\n\nsettled that w, here alternati:vc constructions ate cqlly open that alternative is to be chosen which will' be eonsi.ltent with the smooth working of the system which the statute purports to l>c regulating; and that alterrilillive is t6 be rejected which wi!i introduce uncerminty, friction, Gr -confusion into the working of the cm ( 1ee Collector of Customs,\n\nJU!SAVAN'ANDA v.\n\n0 KERALA .(Khanna, J.} 671\n\nBaroda v. Digviiay.rinhji Spinning & Weaving Mills Ltd.(')). These priruiiplcs of construction apply with g!l'Catcr force when we are dealing witdr theprov'isions of ar constitwion.\n\nt have kept the above principles in vkw and am of the opinion that as the language of article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions od' Part III of the Constifution so as to abridge or take away fundamental righ~ Apart from that, I am of the view that if two constructions were possible, the construction which I have. acc¢pted' would, as mentioned above, avdid chaotic consequences and would also prevent the introduction of uncertainty, friction or confusion into the working of our Constitution. ·\n\nIt is also, in my opinion, not permissible in the face of the plain language of article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on tho principle that if the words are plain and free from any ambiguity the Constitution-makers shoukl be taken to have incorporated their intention in those words.\n\nIt seems inconceivable that the framers of the Cotistitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their noncamcndability, iriserted in the Constitution a Part dealing with fundamental righti; which even by the unanmious vote of the people could not be abridged or taken away arid' which left with people no choice except extra-consllitutiorutl methods to achieve than object. The mechanics of tlie amendment of the C6nstitu~ tion, including those relating ti> extinguisliment or abri:dgenlent of fundamental rights, m my opinion, are contained in the . C:Onstifution\n\nitself and' it is not necessazy to have recourse to a revolution or' other atra-coristitutional methods to achieve that object.\n\nConfronted with the situation that if .the stand of the petitioners was to be accepted about the iriallility of the Parliament td amend Part\n\nIII of the Constitution except .by means of a revolution or other extraconstitutionaf methods, the learned coill15el for the petitioners has argued that such an amendment is possiblo by m:ikirig law for convening\n\na Constituerit' Asscrribl'f° or for holding a referendum: It is urged that there would be ari Clement of participation of the people in the convm• ing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Cotistltution can be amenii\n\ned so as to take away or abriiige fundamental rights; The above argument, in my opinion, is untenable and fallacious; If Parliament by a twe>-thirds majority in each House and by following the procedure laid\n\n{ 1) [1962] I S.C.R. 896 (on p. 899).\n\n672 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\ndown in artide 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in eax:h House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such a Cqnstituent Assembly be a creature of statute made by parliament even though such a body has the !Ugh-sounding name of Constituent Assrmbly? The nomenclature of the said Assembly cannot conceal its real nature as being one created undet a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the\n\nParliament. It is µOil possible to accept the contention that what the.\n\nParliament itself could not legally do, it could get done through a body created by it. If something is impermissible, it would continue to be so even though two steps are taken instread of one for bringillg about the result which is not permitted. Apart from the above if we were to. hold that the Parliament was Cllltitlcd under entry <J7 List I to make a law for convening a Constituent Assembly for taking away or abridging fundamental rights, some startling .results arc bound to follow. A. law made under entry 97 List I would need a simple majority in each House of the Parliament for being brought on statute boc;>k, while an. amendment of the Constitution would require a two-thirds majority of the members of. each House. present and voting. It would certainly be anamolous that what Parliament could not do by two-thirds majority, it can bring about hy simple majority. This apart, there are many articles of the Constitution, fur the amendment of which ratification by not less than half of the State Legislatures is required. The provision rogarding ratification in such an event would be set at naught There would be also nothing to prevent Parliament while .making a law for convening a Constituent Assembly to exclude .effective representation or voice of State Legislatures in tho covening of Constituent Assembly.\n\nThe argument that provision should be made for referendum is equally facile. Our Constitution-maker$ rejected the method of referendum. In a country where thorc are religious and linguistic minorities, it was not considered a proper method of dccidillg vii.ta! issues. The leaders of the minority communities entertained apprehension regarding this method. It is obvious t!hat when passions aro roused, the opinibn of the minority in a popular referendum is bound to get submerged and lose effectiveness.\n\nIt also cannot be said that the method of bringing about a.mcndment through referendum is a more difficui: meihod.\n\nIt is\n\nKESAVANANDA v. KERALA (Khanna, J.) 673\n\ntrue that in Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial rutture. As against that we find that the method of referendum for amend'mg the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures Is concerned, we .find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal t6 the State legislatures to secure ratification (see Constitutional Law oif United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum prOl'ides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament.\n\nApart from that I am of the view that it is no~ permissible to resort to the method of referendum unless there be a constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio (1) the US Supreme Court was referred in the context of ratification by the States of the Eighteenth Amendment to the Constitution of the Ohio State which contained provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum.\n\nRepelling this cont.ention, the court held :\n\n\"Refe:endum proisions of State Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal Constitution without violaring the requirement of article 5 of such Constituon, that such ratification shall be by the legislatures of the several states, or by copventions therein, as Congress shall decide.\"\n\nThe same view was rciterated by the US Supreme Court in State of Rhode Island v. A. Mitchell Palmer Secretary of State and other connected cases er known as N¢ional Prohibition Cases(2 ).\n\nArgument has been advanced on lichalf of the petitioner t_hat there is greater width of power for an amendment of the Constitution if the amendment is brought about by a.referendum compared to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed. by a prescribed majority and has to be ratified by the State Legislatures. _In this res-\n\n(1) 64 Lawyen Ed. 871.\n\n( 2) 253 S.C.R. 350 64 Lawyerr Edition 946.\n\n674 suPaEME collllT BEPOlll'S [1973) Supp. s.c.R.\n\npect we •finid .tihat different constitutions have devisecd different meth~ of bringing about amendment. The main methocds of .modern .constitutional amendment are: ( 1) by the ordinary leature, but under certain restrictions; .\n\n.(2) by the , people thr\"ugh a rc£erendwn;\n\n(3) by a majority of. all .the units of a federal state; .\n\n(~) by a special convention.\n\nIn some cases the system of amendment is a combination of two or more cif these methods.\n\nThere are tibree ways in which the ; legislature may be allowed to amend the cQO.stitution, apart from the. case where it may do so in the ord.i~ .course of J.egislation. The simplest restriction is that .which requires a fixed quocum of members for the consideration of proposed amendments and a special majority for their passage. The latter concfuion operated in the now defunct constitution of Rumania.\n\nAccording to ar#cle .146 of the Constitution of USSR the Constitution , tpay :he ended on.l, y by a decision of Supreme Soviet of USSR adopt- . ed by a roajority ~. not 1~ than two-thirds of the votes in each of its\n\nchan)be.rs .. A .second .o.rt of retriction is that whicl; i. requires a disolutiQl.'I. d .f genenJ election on the particular issue, so that the new legisJatilr, e, beil\\S rc.r.ncd :witl; i a mandate for the proposal, is in es-\n\neni:; e, ii c; o,, nstinie, nt se111l>ly so far as that , proposal is concerned. This additionaJ check is applied in Bc!gh1m, HOiland, Denmark and No.rway (in all of which, hiowevr, a!S<? a two-thirds parliamentary majo- rity is te<tiilireil to carry t'he amendtnent after the election) and in Swe- 'den. A third method of. cotitutiqnal change by the legislature is that w!p.ch requires a majqilty of the two l:louses in joint session, that is to say, sitting togerhe.r as 'one House, as is the case, for example, in South Africa. ·\n\nThe se.cond method is .tha.t which qemands a popular vote or referedun; i or plebiseite. This device was employed in France during\n\nthe Revolution and again by :Louis Napoleon, aQd in Germany by Hitler. This system prevails iri Switzerland, Australia, Eire, Itlay, fr; uicc (with certain Pte, sident, ial prov4ios in the Fifth jlitepublic) •nd in Denmark.\n\nrbe third method is p.eculi'11' to federations. The V()ting on I~ fr9posc4 .. ll;)easure may be cil:hcr .p<>pular Qr by the lcj!islatures .of the\n\nstates t:9l)cerned. Jn Swi, tzerlaJ1d and Australia .the rcierendum 4 .in use; in the United States any proposed amendment requires ratifica~ tion by the legislatures, or special conventions of. 1W futmih r.t the several states.\n\nK.ESAVANANDA II. KEIL\\LA (Khanna, J.) 675\n\nThe last method is one in which a special body is created ad hoe for the purpose of constitutional revision. In some of the states of the United States, for example, this method is in use in connection with the constitution of the states concerned. Such a method is also allowed if the Federal Congress proposes this method for amendment of the\n\nUnited States Constitutions. This method is prevalent in some of the states in Latin America also (see Modern Political Constitutions by C. F. Strong, p. 153-154).\n\nThe decision as to which method of amending the Constitutioru should be chosen has nec:tssarily be that of the Constituent Assembly. This decision .is arrived at after taking into account the national requirements, the historical background, conditions prevailing in the country and other factors or circumstances of special significance for the nation. Once a method of amendment has , been adopted in a constitution, that method has to be adhered to for bringing about the amendment. The selection of the. method of amendment having been: ma:de by the Constituent Assemoly it is not for the court to express preference for another method of amendment.\n\nAmendment brought about by : one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed .another' method of .bringing about amendment unless there be something in the Constitution itself which restricts the power of ainendment. Article 138 of the Italian Constitution makes provision: for referendum to bring about amendment of the Constitution. It has,\n\nhocver, been el'Pressly provided in die article that referendum does not take place if a law has been ~!\\Proved in .its second vote by a majority of two-thirds of ihe members of each chamber. The Italian C', onstitution tl).us makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. 4rticle 89 of the C\"onstitutiOlll: of the French Fifth Republic like-wise makes provis'1on for referendum for amendment of Constitution.\n\nIt is, however, provided in that artick that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it Is accepted by threefifth majQrity of the votes cast.\n\nWe may at this stage advert to article 5 of the United States Constitution which reads as under:\n\n\"The Congress, whenever tw<>-thirds of both Houses shall deem it necessary; sll propose a!11endments to th!s Constitution, or, on the apphca!IOll of the 1cgislature cl. two-thlrds of the several States, shall . call a convention for proposing amendments, which in either case, shall be alid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of\n\n676 SUPREME COURT REPORTS [1973] Supp. s.c.ll.\n\nthe several States, or by conventions in three fourth thereof, as the one or the other mode of ratificatio11 may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section oi the first article; and that no State,. without its consent, shali be deprived oi its equal suffrage in the Senate.\"\n\n The above article makes it clear that there arc two methods of framing and proposing amendments.\n\n(A) Congress may itself, by a tw<>-thirds vote in each house, prepare and propose amendments.\n\n(B) The legislatures of two.thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon de so, having no option to refuse; and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which . would therefore appear to be left to the discretion of Congress.\n\nThere arc the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left oo Congress to prescribe one or other method as Congress may think fit.\n\n(X) The legislatures of -three-fourths of the States may ratify any amendments submitted to them.\n\n(Y) Conventions may be called in the several States, and threc,. fourths of. these conventions may ratify.\n\nExcept for Twenryfirst Amendment, on all the occasions. on which the amending power has been exercised, method A has been employed and method X for ratifying-i.e., no drafting conventions of the whole Union or ratifying conventions in the seveial States have ever been summoned. The consent of the President is not required to a constitutional amendment (see American Commonwealth by James Bryce, pp. 365-366).\n\nThere is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State egual representation in one branch the legislature because according to proviso to article V, no State without its consent shall be deprived of. its equal suffrage in the Senate.\n\nThe question as to whether the width of power of amendment is greater in case the amendment is pasacd by a peopl~' s convention compared to the width of the power if ids pasacd by the prribcd majority in the legislatures arose in the taso oi United St•s \"· SpraliESAVANANDA ti. Xl!llALA (Khanna, J.) 677\n\ngue(') decided by the Supreme Court of the United States. In that case the constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and conferred new direct powers over individuals. The trial .court rejected all these views and yet held the Eighteenth Amendment unconstitutional on theories of\n\n\"political science,\" the \"political thought\" of the times, and a \"scientific approach to the problem of government.\" The United States Supreme\n\nCourt on appeal upheld the Eighteenth Amendment. After referring to the provisions of article 5 Roberts J., who gave the opinion of the court, . observed:\n\n\"The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, . as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be rat!ified by legislatures, since the States as entities 'would be wholly competent to agree to such alterations, whereas thC]' intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify. hut also because of doubt as to their truly representing the people.\"\n\nRepelling the contention on behalf of the appellees, the court obse~-· ved:\n\n\"If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase article 5 as to. exclude implication or speculation, The fact that an instru\n\nment drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such lin\\it'ing phrase affecting the exercise of discretion by the C'.ongress in choosing one or the other alternative mode of ratification is persuasive evidence that no qualipcation was intended.\"\n\nThe court referred to the Tenth Amendment which provided that \"the\n\npowers not delegated to the United States by the Constitution nor prGhibited by it to the States, are reserved to the States respectiveliy or 'to the people.\" The argument that the language of the Tenth Amendment demonstrates that the people reserved to themselevs powers over\n\ntheir personal liberty, that the legislatures were not competent to enlarge the powers of the Federal Government in that behalf and that the people nevet: delegated to the Congress the unrestricted po\"\".er of choos-\n\n(1) 282 U.S. 716.\n\n678 SW.llEME COURT REPORTS (1973] Supp; s.c.R.\n\ning the mode of ratilication of a proposed amendment was described by the Court to be complete non sequitur. The fifth Article, it was observed, does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, that article is a grant of authority bY. the people to Congress, and not to the United States. The court further observed :\n\n\"They (the people) deliberate.Ly made the grant of power to Congress i.t1 respect to the clioice of: the mode of ratification of amendmepts. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification.\" I am, therefore, of the view that there is no warrant for the pro- \\)Osition that as the amendments under article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the amendments are not brought about through referendum or passed In a Convention, the power of amendment under article 368 is on that account subject to limitations.\n\nArgument has then been advanced that if power be held to be vested in Parliament under article 368 to take away or abridge fundamental rights.. the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. fndia, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majocity of representatives of the people. It is also based upon the belief that the power under article 368 by two-thirds of the members present and voting in eaclt House of Parliament would be abused or used extravagentfy. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of article 368 because of anv such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of 1farshall C. J. regarding the possibilitv of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alphetts Billings.(')\n\n\"This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments.\n\nThe iatercst, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally.\"\n\n(1) 29 U.S. 514.\n\nKESAVANANDA v. KERALA (Khanna, J.) 679 nm pmvcr may be abused furnishes no ground for denial of its existence if government is 0to he maintained at all, ils a proposition, now too wcll established (fee the unanimous opinion of US Supreme Court in Erparte fohn L. Rapier(')). Same view was expressed by the Judicial Committee in the case of Barik of Toronto and U.mbe(\") while dealing with the provisions of section 92 of the British North America Act relating to the power of Quebec legisl.atur~.\n\nApart from the fact that the possihility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under article 368 has been vested not in one individual but in the majority of the representatives of .1lhe people in Parliament. For tllis purpose, the majority has lo k of not less than two-thitds of the members present and .voting in .each House. In addition to that, it is required that the 11111endme111: Bill $hoi.ild be passed in each House by a majority of\n\nthe total ,1rx1crohip of. that House. It i>s, therefore, not possible te> pass an amcndmcmt Bill by a snap vote in a House wherein a small number of members are present to satisfy the requirement of the rule of quorum. The condition about the passing of the Bill by each House, including the Ra 1'a Sabha, by the prescribed , majority ensures that it is not permissible to get the Bill passed in a joilnt sitting of: 'he two Houses (as in the case of ordinary legislation) wherein the members of the Raj ya\n\nSabha can be outvoted by the members of the Lok Sabha because of the latter's greater numerical strength. The effective voice of the '.Rajya Sabha in tl; ie passing of 1he amendment Bill further ensures that unless the prescribed majority of the representatives of the states agree the Bill cannot be passed. The Rajya Sabha under our Constitution is a perpetual body; its me, mbers are elected by the members of the State Assemlies and one-third of them retire every two years, We have besides that the provision for the ratification of the amendment by not less than one-half of the State Legislature in case the amendment rClatcs to certain provisions which impinge upon the rights of the St; i.tes. The fact that .a prescribed majority of the people's representatives is required. f()r bri, nging about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against , the abuse or cxt; ravagant uso of , power i.s public opinion\n\nand nO'.t ; i Jetter on lhe right of people's representatives to change the ronstil;\\l, t, i<Jn by followil)g the procedure ii.aid down .in . the const1tution\n\nif. It would l!Qt be a correct approach .to start with a distrust in the pe<iple's 1'eprese#ives in the Parliament and to assume that majority of them would have an aversion fot the liberties of the people\n\n( 1) 15 U.S. 93=26 Law. Ed. 110.\n\n( 2) 12, A.C. 575.\n\n680 SUPREME COURT REPORTS [1973] Supp. s.c.R .\n\n.and would act against the public interest. To quote the wotds of Justice Holmes in Missouri Kansas &: Texas Ry. v. May(1),\n\n\"Great constitutional provisions must be administered with caution. Some play must be a1lowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare 'of the people in quir.c as great a degree as the courts.\"\n\nL.B. Orficld has dealt with the question of the abuse of. power in oo book \"The Amending of Federal Constitution\", in the following\n\nwords on page 123 :\n\n\" 'Abuse' of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were no limitations ()n the power to amend ...... The amending power is a power of an alltogcther different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the states representing an extraordinary majority of the people, so that for •II practical purposes it may be sa.id to be the people, or at least the highest agent of the people, and one exercising soverign powers. Thus the people merely take the consequences of thdr own acts:\"\n\n1t has already been mentioned above that the best safeguard against lhc abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a cl'imate Is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representlltives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted\n\ninterpretation of article 368 would not he of mu('h avail. The people ]n such .an event would forfeit the claim to have fundamental rights .and in any case fundamental rights would not in such an event save\n\nthe 11eople from political enslavement, social stagnation or mental servitude. I may i11 this context refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty :\n\n\"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. Thes<i arc false hopes; bel'ieve me, these are false hopes. Liberty lies in the hearts of men and worr.en: when it dies there, no constitution, no law. no court can save it; no constitution, no law. no court can even do 1111.1rh to help it. While it lie.~ there it needs no constitution, no law, no court to save it. And what is this liberty which must\n\n( 1 ) 194 U.S. 267 (on p. 270).\n\nKESAVANANDA v. KERALA (Khanna, J.) 681\n\nlie in the hearts of men and women? It is not the ruthless, the unbridled will; lt is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recogni7.e no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.\" (see pages 189-190 Spirit of Liberty edited by Irving Dilliard).\n\nSimilar i(iea was expressed in another celebrated passage by Learnecl Hand in the Contribution of an Independent Judiciary to Civilization :\n\n\"You ntay ask what then will become of llhe fundamental princi pies of equity and fair play which our constitutions enshrlne; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades it• responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.\" (see p. 164 supra).\n\nIt is axiomatic that the involvement-of a nation in war by a declaration of war against another country can change the entire course of histllry of the nation. A wrong decision in this respect can cause untold suJfering, .result 'i.n national humiliation, take toll of thousands of Jives and cripple the economy of the nation for decades to come. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on. the assumption that such a power would not be abused but would be exercised reasonably in the national\n\ninterest, it would seem rather anomalous to have an approach of distrust in those very organs of the state and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power.\n\nThere is one other aspect of the matter which may be not lost sight of. Part III deals with a number 0£ fundamental rights.\n\nAssu~ ming that one relating to prope~, ou~ of the rnanv damen?11 rights, is found to be an obstacle m pushing forward certain amho rative measures and it is proposed i.o abridge that fundamental nght and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand tak~ on behalf of the petitioners, is that there is no _power under a~· cle 368 to abridge the obstmctive fundamental nght. The; _result ts that even though reference is made on behalf of the petitioners t~ those fundamental rights as enshrine w; thin themselves the valued con--\n\n682 SUPREME COURT REPORTS [1973] Supp. s.c.P..\n\n<cpt of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which .:auses obstruction to pushing forward ameliorative measures for national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled to amend Part llI of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 .till 1967 Golak. Nath case (supra) was decided, the accepted pooition was t11at die Parliament had t11e power to amend Part III of the Constillution so as to take away or abridge fundamental rights. Despite\n\ndie possession of that power by the Parliament, no attempt was made by it to take away or abridge fundamental rights relating to. cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that t1ie majority of members of die Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove diem from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of die power and the manner of its exercise. What we are concerned with is as to whether on the true construction of article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as die basic structure of the Constirution is retained.\n\nfo the context of aouse of power of the amendment, reference has been made on behalf of the petitioners to he Constitution of Weimar Republic and it is urged that unless there are restrictions on t1ie power of amendment in so far as fundamental righl's are concerned,. the danger is that the Irldian Constitution may also meer die same fate as did tlie Weimar Constitution at the hands of Hitler. Thls argument, in my opinion, is wholly misconceived and is based upon correct appreciation of historical facts.\n\nFollowing mi!Jtary reversals when Kaiser fled to Ho1land in 1918 his mutihous subjects proclaimed a republic in Germany. There was thus a break in die continuity of the authority and the Weimar Republc had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were diemselves responsible for the collapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with rwo economic crises of catastrophic proportions which ruined and made desperate the <>rdinarily stable elements of society.\n\nThe chaos with pol'itical party divisions in the country was reflected in Reichstag where no party obtained a clear majority. There were 21 cabinets in 14 years. It was in those conditions tliat Hitler emerged on the scene. He made use of article 48 of the Weimar\n\nKESAVANA1'.\"DA v. KERALA (Khanna, J.) 683\n\nConstitution which dealt with emergency powers. Under article 48 of the Constitution, the President was empowered. to issue. decrees\n\nuspending the iights guaranteed by the basic law and to make direct use of the army and navy should emergency conditions so require.\n\nThe purpos~ of the provisions was, of course, to provide the executive with means to act in the event of some grave national emergency where. the immediate and concentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found. itself in one emergency after another, so that rule by executive decrees issued under the authority provid- <:d for by article 48 supplanted the normal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National Socialist under Hitler. In less than two years, the Weimar Republic . was transformed into a totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the Reichstag by a narrow Nazi majority, provided government by decree without regard to constitutional guarantees. The Act empowered the Government to enact the statutes without the sane~\n\ntion of the Parliament_ Hitler made a show of following the constitution, but the acts of his party in and out of the government in practi- <:e violated the basic Jaw_ The few limitations imposed upon the government were ignored, and Hitler's Third Reich was launched., (see\n\nModern Constitutions by R. F. Moore, p. 86-87 and The Constitutions of Europe by E. A. Goerner, p. 99-100). It would thus appear that it was not by use of the power of amending the Constitution but by\n\nacting under the cover of ar\"ticle 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi Jictatorship.\n\nHe thus became what has been described as\" .. , the supreme political leader of the people, supreme leader and highest superior of the administration, supreme judge of \"the people, supreme commander of the armed forces and the source of all law.\"\n\n Apart from the fact that the best guara; tee gainst the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Pan III of the Constitution, there is one other aspect of the matter. Even if Part III may be left in~ tact, a mockery of the entire parliam\"entary system can be made by amending articles 85 and I72; which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States. unless sooner dissolved; would be five years, and by prov:iding that the life of exiing _Lok Sabha and Vidhari Sabh,~.' shall be fifty years.\n\nThis would be a flagrant abuse of the power of amendment and I refuse to believe that public opiniori in our country would reach such abysmal depths and the standards of political and constitutional morality would sink so low that such an arriendment would. ever be pass..\n\n• 684 sUPREME COUIIT REPORTS (1973] Supp. S.C.L\n\ned. I need exj)ress no opinion for the purpose of this case as to w he ther this Court would also not quash sueh an, amendment. In any case such an. amendment would be an open invitation for and be a precursor of revolution.\n\nEven without amending any article, the emergency provisions of the Constitution contained in article 358 and 359 can theoretically be used in such a manner .as may make a farce of the democratic set up by prolonging the rule. of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under article 352 can 'be issued by the President if he is satisfied that a grave emergency exists whereby the security of India or of any part of tho territory thereof is threatened, whetlher by war or external aggression or even by internal disturbance. Such a Proclamation h.as to be laid before each House of Parliament. Resolution approving the Procbmation has thereafter to be passed by the Houses of Parliament According to article 83, the House of the People, unless sooner dissolved, shall continue for five\n\nyear~ from tlhe date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of 'mergency is in operation; be extended by Parliament by laW for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the Government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically !Jt,. used for avoiding the election and continuing a party in power even though •it has lost popular support by extending the life of House of the People in accordance with article 83 (2). The effective check against such unabashed abuse of power is the sense of political respon.Fbility, the pressure of public opinion and the fear of popular uprising. We need not go into the qilcstion as to whether ihe court would also intervene in such an event It iS; in my opinion, inconceivable that a party would dare to so abuse the powers grant\n\ned by the emergency provisions. The grant of the above power under artiCie 83 (2) is necessarily on the a&9Ulllption that such a power would not be abused. • Argument has then been advanced on behalf of the petitioners that the power of amend'ment might we1l be used in such a manner as m•ght result in doing away with the power of amendment under article 368 or in any case so amending that articles as might make it iinpossible to amend the Constitution. It is, in my opin1on, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable con., titutions in other countries like France. Assuming that at any time such\n\nKESAVANANl?A IJ. KERALA (Khannt1, J.) 685\n\nan amendment to abolish all amendments of constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-constitut10nal methods to do away with unamendable constitution.. It is not necessary for the purpose of this case to go into the question of the constitutional validity of b'llch an amendment.\n\nWe may now deal with.the quesllion as to what is the scope of the power of amendment under a, rticle .368. This would depend upon the connotation of the word \"amendment\". Question has been posed during arguments as to whether the power ro amend under the above article includes the power to completely abrogate the constitution and replace it by an entirely new constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion that amendment of the constitution necessarily contemplates that the constitution has not to be abrogated but only changes have to be made in it. The word \"amendment\" postulates that the old\n\nconstitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the ret.ention of the old constitution? It means the retention of the basic structure or framework of the old constitution.\n\nA mere retention of some provisions of the old constitution even though the basic structure or framework of the constitution has been destroyed would not amount to the retention of the old constitution. Although it is permissible under the power .of amendment to effect changes, \"howsoever important, and to adapt the system fo the requirements of\n\nchan<z; ini~ coPdition•. it is not permissible to touch the foundation or to alter the basic institutional pattern. The words \"amendment of the constitution\" with alL their wide sweep and amplitude cannot have the effect ci_. destroying or abrogating the basic structure or framework of the constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the constitutiOD does not furnish a pretence for subverting the 91ructure of the consli-- tution nor can article 368 be so construed as to embody the death wish of the Constitution or provide ction for what may perhaps be called its lawful harakiri. Suc\\l subversion or destruction cafmot be described to be amendment of the Constitution as contemplated by article 368.\n\n44-36 S.C. India/73\n\n686 'SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nThe words \"amendment of this Constitution\" and \"the Constitution shall stand amended\" in article 368 show that what is amended\n\nis the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existirig Comtitution though in an amended form. The language of article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitut10n and replace it by a new Constitution.\n\nThe connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that \"a Constitution which is responsive to the people's will, which is rCAponsive to their ideas, in that it can be varied here and there, they wiIJ respect it all the more and they will not fight against, when we want to change it.\" It is, therefore, plain that what Pt. Nehru contemplated by amendment was the varying of the Constitution \"here and there\" and not the elimination of tits basic structure for that would necessarily result in the Constirution losing its identity.\n\nReference to some authorities in the United States so far as the question is concerned as to whether the power to amend under article 5 of US Constitution would tinclude witliin itself the power to alter the basic structure of the Constitution are not helpful because there has been no amendment of such a character in the United States. No doubt the constitution of the United States had in reality, though not in form, changed a good deal since the beginnting of last century; but the change had been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the constitution (see The Law of the Constitution by A. V. Dicey Tenth Ed. p. 129).\n\nIt has not been disputed during the course of arguments that the power of amendment under artticle 368 does not carry within itself the power to repeal the entire Copstitution and replace it by a new Constitution. If the power of amendmenb dOCA not comprehend the doing away of the entire constitution but posrulates retention or continuity of the existing constitut!ion, though in an amended form, question arises as to what is the miriimum of the existing constirution which should be left intact in order to hold that the existing constitution has been retained in an amended form and not done away with.\n\nIn my opinion, the minimum required is that which relates to the basic structure or framework of the constlitution. If the basic strucrure is retained, the old constitution would be considered to continue even though other provisions have undergone change. On the contrarv, if the basic structure is changed, mere retention of some articlles of the existirig constitution would not warrant a conclusion that the existing .constitution continues and survives.\n\nKESAVANANDA fl. lWIAL.l (K.Iumruz, J.) 687\n\nAlthough there arc some observations 'in \"Limitations of Amendment Procedure and the Constituent Power\" by Conrad to which it is not possible to subscribe, the following observations, in my opinion, represent the position in a substantially COITCCt manner :\n\n\"Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.\"\n\nIt has further been observed :\n\n\"The amending procedure is concerned with the statutory framework of which it forms part itself. It may effect changes in detail, remoultl the legal expression of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun 'the medicatrix of the system', but should not touch its foundations.\"\n\nA similar idea has been brought out in the. following passage by Carl J. Friedrich page 'l72 of \"Man and His Government\" (1%3) :\n\n\"A constitution is a living system. But just as in a living, organk system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with cael1 of the organs having its proper function, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alteration$.\n\nFor it is the characteristic of a system that it perishes when one of its essential component parts is destroyed. The United States may retain some kind of constitutional government, without, say, the Congress or the federal division of powers, but it would not be the constitutional system now prevailing. This view is uncontested even by many who do not work wiW! the precise concept of a constitution here insisted upori.\"\n\nAccording to \"The Construction of Statutes\" by Crawford, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or in some way changed or altered in order to make it more complete or perfect or effective. It should be noticed, however, that an amendment is not the same as repeal; although it may operate as a repeal to a certain degree. Sutherland in this context states that any change of the scope or effect of an existing statute whether by addit'ion, omission or substitution of provisions which does not wholly terminate its existence whether by an Act purporting to amend, repeal, revise or upplcrnent or by an Act independent and original in form, is treated as amendatory.\n\n688 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nIt is, no doubt, true that the effect of the above conclusion at which I have arrived is that there would be no provision in the constitution giving authority for drafting a new and radically different constitution with different basic st!ructure or framework.\n\nThis fact, in my opinion, would not show that our Constitution has a lacuna and is not a perfect or a complete organ.ic instrument, for it is not necessary that a constitution must contain a provision for its abrogation and replacement by an entirely new and different constitution. The people in the final analysis are the ultimate sovereign and if they dei; ide to have an entirely new i; onstitution, they would not need the authority of the existing constitution for this purpose.\n\nSubject to the retention of the basic structure or framework of the Constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the Yariou1 articles including those relating to fundamental rights. During the course of years after the oonstitution comes into force, diflicul, ties can be experienced in the working of the constitution. It is to overcome those difficulties that the constitution is amended. The amendment can take different forms. It may sometimes be necessary to repe; il a particular provision of the constitution without substituting another provision in its place. It may in respect of a different article become necessary to replace it by a new provision. Necessity may also be felt in respect of a third article to add some further clauses in it.\n\nThe addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without repealing any of the existing clauses. Experience of the working of the constitution may also make it necessary to insert some new and additional articles in the constitution. Likewise, experience might reveal the necessitv of deleting some existing articles. All these measures, in my opinion, would lie within the a, mbit of the power of amendment. The denial of S\\lch a broad and comprehensive power would introduce a rigidity in the constitution as might break the constitution. Such a rigidity i~ open to serious objection in the same way as an unamendable constitution.\n\nThe word \"amendment\" in article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whetl1er it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to funda- , nental rights contained in Part. III of the Constitution. It would be impermissible to differentiate between scope and width of power of\n\nKESAVANANDh v. KERALA (Khanna, J.) 689\n\namendment when it deals with fundamental right and the scope and width of that power when it deals with provisions not concerned with fundamental rights.\n\nWe have been referred to the dictionary meaning of the word \"amend\", according to which to amend is to \"free from faults, correct, rectify, reform, make alteration, to repair, to better and surpass\". The dictionary meaning of the word \"amend\" or \"amendment\", according to which power of amendment should be for purpose of bringing about an improvement, woulld not, in my opinion, justify a restricted con 1truction to be placed upon those words. The sponsors of every amendment of the Constitution would necessarily take the position that the proposed amendment is to bring about an improvement on the existing <Anst:itution. There is indeed an element of euphemism in every amendment because it proceeds upon the assumption on the part of the proposer that the amendment is an improvement. In the realities and controversies of politics, question of improvement becomes uncertain with the result that in legal parlance the word amendment when used in reference to a constitution signifies change or alteration. Whether the amendment is, in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the valicftty of an amendment the colirts would not go into1 the question as to whether the amendment has iu effect brought about an improvement. fo is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would not be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only concerned with the legality of the amendment and this, in its turn, would dnd upon the question as to whether the formalities prescribed in article 368 have been complied with.\n\nThe approach while determining the. validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A constitution is essentially different from pleading filed in court by litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the iudiciary. A constitution also reflects the hopes an_d spirations of a people. Besides laying down the norms\n\nor the funct1onmg of different organs a constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A constitution cannot be regarded as a mere legal document to _be read as a will or an agreement nor is constitution like a pbint or .a Written statement filed in a suit between two litigants. A constitutton must of necessity be the vehicle of the life of a nation. It has\n\n690 SUPREME -COIJaT UPOaTS [1973) Supp. s.c.R.\n\nabo to be borne in mind that a constitution is not a gate but a road.\n\nBeneath the drafting of a constitution is the awareness chat things do not stand till but move on, that life of a progressive nation, as of an irulividual. ''S not tatic and stagnant but dynamic and dashful. A constitution must therefore conl!ain ample provision for experiment and triat in the task of administration. A constitution, it needs to be emphasised, is not a document for fastidious <!Wectics but the means of ordering the life of a people, It had its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.\n\nThe words of Holmes while dealing with the US Constitution have equal relevance for our Constitution. Said the great Judge :\n\n\" ... the provisions of the Constitution arc not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dlctionary, but by considering their origin and the line of their grow, tlb..\" (See Gompers v. United Staks, 233 U.S. 604, 610(1914).\n\nIt is necessary to keep in view Marsha1l's great premises that \"it is a Constitution we are expounding\". To quote the words of Felix Frankfurter in his tribute to Holmes :\n\n\"Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government may make all the difference in the world. The fate of cases, and thereby of legislation, will turn on whether the mcamng of the document is derived from itself or from one's conception of the country, its development, it~ needs, its place in a civilized society:\"· (See \"Mr. Justice Holmes\" edited by Felix Frankfurter, p. 58) .\n\n• The principles whlch should guide •the court in constrning a constitution have been aptly laid down in the following passage by Kania C. J. in the case of A. K. Gopalan v. Th~ S; i/te flf Ma4r{ls('):\n\n\"In respect of the construction ot .I. .Constitution Locd Wright in James v. The Commonll!eahh of Aus\"\"1i11(2 ) obsctved that 'a Constitution most not be cons!tued ill any narrow or pedantic sense'. Mr. Justice Higgins in Attrnney-Gent1rltl i1f New South Wales v. Brewery Employees .Union,(1) observed : \"Although we arc to interpret words of lhe Constititltion on the same principle' of imerpretation as we apply to.any ordinary law, these: very principles of mterprct:Rion com~) us to take int.o account tM nature and scope of the Act th:tt we arc interpretirig-to remc:mber that it is a Constitution, a mechanism under which l'aws arc\n\n( 1) (1950) S.C.R. 88 (at p. 119-121). (I) (1936) A.C. 578 (at 614). . (•) ( 1908] 6 Com. Wt 469 (at 611-12).\n\nKESAVANANDA II. KEM.LA (Khanna, J.) ii91\n\nto be made and not a mere Act which declares what the law is to be.'' In In re The Central Provinces and Berar Act XIV of 1938(1), Sir Maurice Gwyer C. J. after adopting these observatiOllls said : \"Especially is this true of a Federal Constitution with its n'ice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.'' There is r, onsiderable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in Wt)rds. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Const'itution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private\n\nrights,\"\n\nReference has been made on behalf of the peritioners to para 7 of the fifth Schedule to the Constitution which empowers the Parliament .to amend by way of addition, variation or real any of the provisions of that Schedule dealing with the adrninestration and control of scheduled areas and scheduled tribes.\n\nLikewise, para 21 of the Sixth Schedule gives similar power to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Sixth Schedule relating to the adminiSltration of tribal areas. It is urged that while article 368 contains the word \"amendment\" simpliciter, the above two paragraphs confer the power to amend by way of addition,\n\nvariation or repeal and thus enlarge the scope of the power of amend-\n\n( 1 ) [1939] F.C.R. 18 (at 37).\n\n6n SUPllMI! COUJ.T Rl!Pbats [1973]'Supp. s.c.Jt •\n\n.mCl).t.\n\nThis contention, in my opinion, is , not ',\\'.ell foundc\\!. The ·.words \"by way of addition; variation or 'repeal\" merely amplify the meaning of the WQrd \"amend\" and clarify what was already implicit in that word. It, however, cannot be said tiiat if the words \"by way of addition, variation or repeal\" had not been there, the power of amendment would not have also included the power to add, vary or repeal. These observations would also hold good in respect of amended section 291 of the Government of India Act, 1935 which gave power to the Governor-General at any time by Order to make such amendments as he considered necessary whether by way of addi tion, modification or repea~ in the provisions of that Act or of any Order made thereunder in relat.ion to any Provincial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would not go to show that in the absence of the clarification, the power which inheres and is implicit would be nonexistent. Apart from that, I am of the view that sub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that'the word \"amendment\" has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned in sub-paragraph ( 1) shall be deemed to be an amendment of the Comtitution for purpose of article 368. As sub-paragraph (1) deals wi.th amendment by way of addition, variation or repeal, the amendment. of Constitution for purpose of article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply , to sub-paragraph (2) of paragraph 21 of the Sixth Schedule.\n\nThe Judicial Committee in the case of British Coal Corporation \\'.\n\nThe King(') laid down the following rule:\n\n\"In interpreting a constituent or organic statute such as the Act, d1at construction most beneficial to the widest possible amplitude of its powers must be adopted.\"\n\nThe Judicial Committee also quoted with approval the following pas,_ :ige from Clement's Canadian Constitution relating to provision of British North America Act :.\n\n\"But these are statutes and statutes, and the strict construcnon. deemed proper in the case, for example of a pe!Jal or. taxing statute, or one passed to regtilate the affairs of an. English parish, would be often subversive of Parliament's real intel)t if applied to an Act passed to ensure the peace, order and gOQd go.vermw:pt .... \".\n\n( 1) (1935] A.C. 500.\n\nKESAVANANDA v. KERALA (Khanna, J.)\n\nOrfield, while dealing with the amendment of the constitution has observed that the amendment of a constitution should always be constrncd more liberally. To quote from his book ''The Amending of the Federal Constitution\" (p. 158) :\n\n\"ls there a restriction that an amendment cannot add but on! y alter? An argument very much like the foregoing is that an amendment may alter bur may not add. This contention is largely a quibble on the definition of the word 'amendment'. It is asserted that by amending the Constitution is me.ant the changing of something that is already in the Constitution, and not the addition of something new .and unrelated. Cases prescribing the very limited meaning of amendments in the law of pleading arc cited as authoritative. It would seem improper however, ro accept such a definition, as amendments to constitutions have always been construed .more liberally and on altogether different principles from those\n\n; pplicd to amendments of pleadings.\"\n\nIt may also be mentioned that article 5 of the US Constitution confers powers of amendment. The word used in that article is amendment simpliciter and not amendment by way of addition, alteration or repeal. In pursuance of I.he p<>wer C1Jllferred by article S, articll: 18 was added to the American Constitution by the Eighteenth Amendment. Subsequently that article (article 18) was repealed by the Twenty-fir>t Amendment. Section 1 of article 21 was in the following words:\n\n\"The Eighteenth .article of amendment to the Constitution of the United States is hereby repealed.\"\n\nThe addition of the eighteenth article, though challenged, was upheld by the Supreme Court. No one has questioned the repeal of the eighteenth article on the ground that the power of amendment would not include the power to repeal.\n\nI cannot subscribe to the view that an amendment pf the constitu tion must keep alive the provision sought to be amended and that it must be consistent with that provision. Amendment of constitution has a wide and hroad connotaJ:ion and would embrace within itself the total repeal of some articies or their subs!itution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in article 368 has been used to denote change. This is clear from the opening words of the proviso to article 368 according to which rat'.!fication by not less. than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a -wide amplitude and would necessarily cover .:ascs of repeal and replacement of earlier provisions by new provisions of different nature.\n\n694 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\nChange can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity of an amendment would not enter into the arena of this controversy but would concern itself with the question as to whether the constitutional requirements for making the amendment have been satisfied. An amendment of the Constitution in compliance with the procedure prescribed by article 368 cannot be struck down by the court on the ground that it , is a change for the worse. If the court were to strike down the amendment on that grou11d, it would be tantamount to the court substituting its own opinion for that of the Parliament, reinforced in certain cases by that of nut less than half of State Legislatures, regarding the wisdom of makmg the impugned comtitutional amendment. Such a course, which has the effect of empowering the court to sit in appeal over the wisdom of the Parliament in making constitutional amendment, on the supposed assumption that the court has superior wisdom and better capacity to decide as to what is for the good of the nat'ion is not permissible. It would, indeed, be an unwarranted incursion into a domain which essentially belongs to the representatives of the people in the two Houses of Parliament, subject to ratification in certain cases by the State Legislatures. We may in this context recall the words of Holmes J. , in Lochner v. New York(').\n\n\"This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, 1 should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.\"\n\nThe above observations were contained in the dissent of Holmes J.\n\nThe above dissent has subsequently been accepted by the US Supreme Court to lay down the correct law (see Ferguson v. Skrnpa(') wherein it has been observed by the court :\n\n\"In the face of our abandonment of the use of the 'vague contours' of the Due Process Clause to nullify laws wH1ch a majority of the Court believed to be economically unwise, reliance on Adams v.\n\nTanner is as mistaken as would be adherence to Adkins v. Children's Hospital, overruled by West Coast Hotel Co. v. Parrish, 300 US 379, 81 L ed 703, 57 S Ct 578, 108 ALR 1330 ( 1937) ........ .\n\n( 1) (1904} 198 U.S. 45.\n\n( 2) (1963) 372 U.S. 726.\n\n~AVAN~NDA \"· KERALA (Khanna, J.) 695\n\nWe refuse to sit as a 'superlegislature to weigh the wi.l.dom of legislation', and. we emphatically refuse to go back to the time when courts used the Due Process c:Liuse to strike down state laws, regulatory of business and industrial col!ditions, because they may be unwise, improvident, or out of harmony with a particular school of thought'.\"\n\nIt has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to article 368, ratification of not. less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vita! matter as the taking away or abridgement of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amendments. Plain reading of article 368, however, shows that ratification by the State Legislatures has be.en made imperative in the case of those constitutional amendments which relate to or affect the rights of the States. In other cases no such ratification is necessary. The scheme of article 368 is not to divide the articles of the Constitution into two categories, viz., important and not so important articles.\n\nWha~ article 368 contemplates is that the amending power contained 'in it should cover all the articles, leaving aside those provisions which can be amended by Parliament by bare majority. In the case, however, of such of the articles as relate to the federal principle or the relations of the States with the Union, the framers of the Constitution put them in the proviso and made it impera. tive to obtain ratification by not less than half of the State Legisl:atures in addition to the rwo.diirds majoi'ity of the members .present and voting in each House of the ParLiament for bi'inging about the amendment. It is .plain that for tthe purpose of ratification by the State Legislatures, the framers of the Constitution attached greater importance to the federal structure than to the individual rights. Such an approach is generally adopted in the case of a provision for amendment of the federal constitution. K. C. Wheare in his book on the Federal Government has observed on page 55 :\n\n\"It is essential in a federal government that if there be a power of amending the constitution, that power, so far at least as concerns those provisions of the constitution which regulate the status and power of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments.\"\n\n696 SUPREME CO!JKT REPORTS [ 1973] Supp. s.c.ll.\n\nW c may in this context refer to the speech of Dr. Ambedkar who while dealing with the category of articles for the amendment of which\n\n.ratification by the States was requ'ircd, observed :\n\n\"Now, we have no doubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. I shall explain why we think that in the case of certain articles it is dcsirabll: to adopt this procedure.\n\nIf Members of the Howe who arc interested in this matter arc to examine the articles that have been put under the proviso, they will find that they refer not mer cl y to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as .a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to my that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Centra1 Parliament by\n\ntwo-thirds majority, without permitting the provfriccs or States to have any voice, 'is in my judgment altogether nullifying the fundamentals of the Constitution.\"\n\nLearned counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations.\n\nSo far as the concept of imphed limillltions is concerned, it has two facets. Under the first facet, they .2J'c limitations which flow by riecessiary implication from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitution irrespective of the fact whether they flow from express provisions or not because they arc stated to be based upon cerra'in higher values which are very dear to the human heart and are generally considered essential traits of civili- zed existence. It is also stated that those higher values constitute the spirit and provide the scheme of the Constitution.\n\nThi~ aspect f implied limitations is linked with the existence of natural nght1 and 1t is stated that such rights being of paramount character, no amendment of constitution can result in their erosion.\n\nI may at this stage clarify that there are certain limitations ':\"h!ch inhere and are implicit in the word \"amendment\". These are hm1ta-\n\n.l(.ESAVANANDA \"· KERALA (Khanna, J.) 697\n\ntions which flow from the use of the word \"amendment\" and relate to the meaning or construction of the word \"amendment\" This aspect has been dealt with elsewhere while construing the word \"amendment\". Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above.\n\nSo far as the first facet is concerned regarding a limitation which flows by necessary implication from an expresa provision of the Constitution, the concept derives its fu.rce and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason, it may be said that a constitutional proviS!on is not exempt from the operation of such a principle. I have applied this principle to article 368 and despite that, I have not been able to discern in the language of that article or other relevant articles any implied limitation 9n the power to make amendment contained in the said article.\n\nWe mav now deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though not flowing from an express provision, is stated to be based upon higher values which are very dear to the human heart and arc considered essential traits of civilized existence.\n\nSo far as this aspect is concerned, one obvious objection which must strike every one is than the Constitution of India is one of the lengthiest constitutions, if not the lengthiest, of the wodd. The framers of the Constitution dealt with different constitutional matters at considerable length and made detailed and exhaustive provisions about them. Is it then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of mak'ing amendment, question would necessarily arise as to why the framers of . the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may havr. •ome fascination and attraction for political theorists, but a deeper teflection would reveal that such a theory is based upon a doctrinaire 1pproach and not what is so essential for the purpose of construing :md working a Constitution, viz., a pragmatic and practical approach.\n\nThis circumstance perhaps accounts for the fact that the above theorv of implied limitations has not been accepted by the highest court in any country.\n\nri.s the concept of implied limitations on the power of amendment under the second aspect is not based upon some express proviiion of the Constitution, it must be regarded as essentially nebulous. The concept has no definite contours and its acceptance would necessarily\n\n698 SUPREME oom.r llPOllrl'S [1973j Supp. s.c.11.\n\nintroduce clements ci uncertainty and vagueness in a matter of so vital an impoqance as that pertaining to the amendmell.t of the Cons.titlition. Whatever might be the justification for invoking the concept of\n\nimplied limitations in a short constitution, so far as the Constitution of India with all its detailed provisions is concerned, there is hardly\n\nny scope or justification for invoking the above concept. What was intended by the framers of the Comtitution was put in express words and, in the absence of any words which may expressly or by necessary implication point to the eiistence of limitations on the power of amendment, it is, in my opinion, not permissible to read such limitations in the Omstitution and poo them on the power of amendment. I fiiid it difficult to accede to the submisSion that the framers of the Constitution after having made such detailed provisi0ll$ for different subjects left something to be. deCided by imphication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said. The quest for things not said, but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in. all such speculation and theorising. All the efforts of the framers of the Constitution to make its provisions to he definite and precise would thus be undone. We shall be in doing so; not merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is not a subject of fastidious and abstract dialectic$ but has to be worked on a practical plane so that it may become:. a real and effective. vehicle of the nation's progress. As observed by Story in para 451 of the Constitution of the United States, Volume I constitutions are not designed for metaphysical .or logical subtleties, for niceties of expression, for critical propriety, for elalJorate shades cJf meaning, or for the exercise of philosophieal acuteness, or jndal research. They are instruments of practical nature, founded on c c001mon business of human life, adapted to common wants, designed\n\nfor common use, and fitted for common understandings.\n\nIn the National Prohibition Cases (supra) the petitioners challenged before the US Supreme Court the validity c:i.. the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid am- . cndmcnt had resulted in encroachment! upon .the police. power c:i. the States. There was implied limitation on the power to 111akc Mich an amendment, according to the petitioners in those caSCll. under anick 5 of the US Constitution. Although the Supreme damt ga\\llt no reasons in support of its conclusion, it upheld the validity of the Eigh~ th Amendment. Argument about the implied limitations on the power -Of amendment was thus tacitly rejected.\n\nEminent authors like Rott.chatter and Willis ha~ tak¢ the-~ that the theory of implied limitations $hould. be tak(ll. w flavc bceii\n\nKESAVANANDA v. KF.RAI.h (Khanna, J.) 699\n\nrejected in the National Prohibition Cases (supra) by the US Supreme\n\nCourt. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10 :\n\n\"The only assumption on which the exercise of the amending\n\npower would be inadequate to accomplish those results would be the existence of.express or implied limits on the subject matter of amendments. It has been several times contended that the power of amending the federal Constitution was thus limited, but the\n\nSupreme Court has thus far rejected every such claim, although at least one state court has subjetted the power of amending the state constitution to an implied limit in this respect. The former position is clearly the more reasonable, since the latter implies that the ultimately sovereign people have inferentially deprived themselves of that portion of their sovereign power, once possessed by them, ot determining the content of their own fundamental law.\"\n\nQuestion of implied limitation on the powers to make amendment also arose the case of Jeremish Ryan and Others v. Captain Michael\n\nLennon (1) Article SO of the Constitutill!!l. of the Irish Free State whi.ch came into force on December 6, 1922, as originally enacted, provided as follows:\n\n\"Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the votes on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters in the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of article 47 hereof.\"\n\nBy the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was ameuded by, inter alia, the deletion of article 47 (dealing with referendum) and the deletion from article SO of the words \"and as such shall be subject to the provisions of article 47 thereof'. By the Constitution (Amendment No. IS) Act, 1929, also passed within the said period of eight years, article SO was amended by the substitution of the words \"sixteen\n\n( 1 ) [1935) lrish Reports p. 170.\n\n700 SUPREME COUR'C REPOll.TS [1973] Supp. s.c.R.\n\nyears\" for the words \"eight years\" therein. By the Constitution (Amendment No. 17) Act, 1931 the Constitution was amended by inserting therein a provision relating t.o the establishment of a Tribunal consisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was m the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitatjon on the power to make amendment. It was held by the Supreme Court\n\n(FitzGibbon and Murnaghan JJ. and Kennedy C .. J. dissenting),. whik: dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas bv article 50 and were valid amendments of the Constitution; and that,. consequently, an amendment of the Constitution; enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under article 50 or article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason of con: flicting with sJiecific art:icles of the Constitution such as article 6 relnting to the liberty of the person, article 64 relating to the exercise of judicial power or article. 72 relating to the trial by jury or by reason of infringing or abrogating other articles of the Constiturion or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy C. J., after re-· ferring to the different articles of the Constitution, held that there was not, either expressly or by necessary implication, any power to amend the power of amendment itself. He observed in this connection :\n\n\"No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my op_inion.on the true interpretation of the power before us, upon a cons1deratton of the express prohibition, limitations and requ'reents of the clause containing it, the absence of any express authontv, the donation of the effective act in the exercise of the power to the people a1> a whole the relevant surrounding circumstances to which I have already eferred, and the documents and their tenor n teir .entirety, there is not here, either e<epressly or by nccary .. rmphcat10n, any power to amend the power of amendment itself.\n\nKESAVANANDA \"· KERALA (Khanna; J.) 701\n\nFitzGibbon J. dealt with this question in these words:\n\n\"Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inaTienable, and incapaole of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended 'to bind man down from mischief by the Chains of the Constitution', but if they did, they defeated their object by handing him the key of the padlock in Article 50.\"\n\nMurnagham J. observed:\n\n\"The terms in which Article 50 is framed does authorise the am endment made and there 1s not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly b:iScd.\"\n\nThe theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article rel; ating to amendment of the constitution or wh~ ther there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in clause ( e) of the provi.lo to article 368 permitting such amendment. Apart from that I find tlrat in the case of Moore and Others v. The Attorney-\n\nGeneral for the Irish Free State and Others(') the counsel for the appellant did not challenge the constitutional validity of the 1929 Amendment. The counsel conceded that the said Amendment was regular and that the validity of the subsequent aincndments could not be attacked on the ground that they had not been submitted to the people\n\nin a referendum. Dealing with the above concession, the Judicial Com• mittee observed that the counsel had rightly conceded that pOint. The Judicial Committee thus expressed its concurrence with the conclusion of the majority of the Irish Supreme Court relating tp the constitutional validity of the Amendment Act of 1929.\n\nA. B. Keith has also supported the view of the majority aad has observed that the view of the Chief Justice in this respect was wrong (see Letters on Imperal Relations Indian Reform Constit)ltional & International Law 1916-1935, p. 157). Keith observed in this connec\n\ntion:\n\n\"But that the Chief Justice was wrong on this head can hardly be denied. Article 50 of the Constitution, which gave the power\n\n( 1) [1935] A.C. 484.\n\n45-36 S. C. India/73\n\n102 SUPREME COURT REPORTS [1973] Supp. s.c.11.\n\nfor eight years to effect changes by simple Act, did not prevent alteration of that Article itself, and, when the Constitution was\n\nnacted, it was pan of the constitutional law of the Empire that a power of change granted by a Constitution applies to authorize change of the wwer itself, unless it is safeguarded, as it normally is, by forbidding change of the section giving the power. The omission of this precaution in the Free State Constitution must have been intentional, arid therefore, it was natural that the Dail, at Mr. Consgrave's suggestion, and with the full approval of Mr. de Valeta, then in opposition should extend the period for change without a referendum.\"\n\nDealing with the doctrine of implied limitations on the power of amendment, Orlield observes :\n\n\"Today at a time when absolutes are discredited, it must not be too readily assumed that there are fundamental purposes in the Constitution which shackle the amending power and which take precedence over the general welfare and needs of the people of today and of the future.\" (see The Amending of the Federal Constitution (1942), p. 107).\n\nIt has been further observed :\n\n\"An argument of tremendous practical importance is the fact that It would be exceedingly dangerous to Jay down any limitations . beyond those expressed. The critics of an unlimited power to amend have too often neg)cctcd to .give due consideration to the fact that alteration of the federal Constitution is not by a simple majority or by a somewhat preponderate majority, but by a thrcefourths majority. of ahl the sta.rcs: Undoubtedly, where a simple majority is .. required, . it is not an especially serious matter for the cCOUtt to supervise clooely the amending process both as to procedure\n\nand as to substance. But when so large a majority as three-fourths has nnallyc cxpres&ed its will in the highest poosible form outside of revoliltion, it becomes perilous for the judiciary t.o intervene.\"\n\n(see ibid. p. 120).. ·\n\nOrlield in this context quoted the following .· passage from a judicial dcci<ion ·:\n\n\"Impressive words of counsel remind us of our duty to maintain\n\nthe inf.egrity of constitutional govcrnmmt by adhc:lring to the limitations laid by the sovereign people upon the expresSion of its wilt .. ·.\n\nNot less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication. • • Repeated decisions have informed us that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation\n\nXESAVANANDA \"· KEBALA (Khanna, J.) 703\n\nwhen the act to be reviewed is not an act of ordinary legislation, but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications.\" (see ibid. p. 121).\n\nH. E. \\Villis has rejected the theory of implied limitations in his book \"Constitutional Law of the United States\" in the following words :\n\n\"But it has been contended that there are all sorts of implied limitations upon the amending power. Thus it has been suggested that no amendment is valid unless it is germane to something else in the Constitution, or if it is a grant of a new power, or if it is legislative in form, or if it destroys the powers of the states under the dual form of government, or if it changes the protection to personal liberty.\n\nThe United States Supi; eme Court has brushed away all of these arguments, .... \" (see p. 123).\n\nWe may now deal with the concept of natural rights. Such rights 3l'e stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the constitution. I agree with the learned counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights have, however, been treated to be not of absolute character but such as are subject to certain limitations. Man being a social being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought stlill persist, the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution or the laws made by it. But independently of the constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforceC.\n\nThe courts look to the provisions of the constiitution and the statutory law to determine the rights of individuals. The binding force of constitutional and statutory provisions cannot be taken away nor can the:ir amplitude and width be restricted by invoking the concept of natural rights. Fttrther, as natural rights have no place in order to be legally enforceable outside the provisions of the constitution and the statute, and have to be granted by the constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the constitution or the statute, can be abridged or taken away by amendment of\n\n704 sUPIU!ME OX1ft 1W10DS ~1973] Supp. s.c.a.\n\nthe constitutio'ii or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity. to the enactments made by the\n\nstate, and not subject to the amcndatocy process.\n\nt may_ be empha!iscd in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in life, nor do they deny that there arc certain requirements necessary for a oivilized existence. It is also not denied. by them that there arc certain ideals which have inspired mankind through the CDllfidor. of centuries. and that there arc certain objectives and desiderata for which men have struggled and made sacrifices. They are also cm1scious ci the noble impulses. yearning for a better order of things, of longings natural in most human hearts, to attain a state. free from imperfections where higher values prevail and are accepted. Those who do not subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enforceable. must form part ci the law or th~ constitution, that rights to be effective must. receive their sanction and sustenance from tlie l'.aw of the land and that rights which have not been codified or otherwise made a part ci the law, cannot be enforced in courts of law nor can those right~ .override or restrict. the scope of the plain language of the statute or r constitution.\n\nWilloughby while dealing. with the concept of natural rights has observed in Vol. I of Constituti:>n ci the United States:·.\n\n\"The so-callccl 'natural' or unwritten laws defining the natural,\n\ninalienable, erent rights of the citizen, which, it is oolnetimcs claimed, sp'riug frol!; l the vci:y' __ nature of free government, have no force ~er io restr'ict or to extend the written provisions of the Constitution. The Jltmost that can be 'Said for them is that where, ' :'-'' -· '. ' . ' '\n\n- ' .. - '' the e of dfo COnistitution admits of doubt, it is. to be presume<; I \\h~ authority is not' given for the violatiiin ci acknowledged principles ofjllstice and. berty.\" (p. 66) .\n\nIt woulc(be pertinent while dg with the riatural 1 rights to reproduce following passage from . Salmond on Jllrisprudcnce, 'fwclftli Editi_on : ·\n\n\"Rights, like wrpngs and dutiea, are eithct moral or legal. A. mQl'al or natural right Is an interest. recognized and protected by a rule of morality;,..m interest the violatidn of which would be a moral wrong, and rcspe(t for whkh is a mini duty. A legal right, Qll the other hand, is an interest re<;<>gnizcd and protected by a rule of law--an interest the violallion of which would be a legal wrong done to h1m whose inter.est it is, and respect for which i.s a liega1 duty.\n\nDSAVANANDA 11. DLU.A (Kh11\"na, J.)\n\n?OS\n\nBentham sc~ the fashion still follow\"! by many oE denying that there arc any such things as natural rights at. all. All rights att legal rights and the creation of the law. 'Natural law, natural rights', he says, 'are two kinds of fictions or metaphors, which play\n\nSQ great a part in books of ltgisi.tion, that they deserve to be examined by themselves ...... Rights properly so called an: the creatures of law properly so called; real laws give rise ID real rights.\n\nNatural rights are the creatures oE natural law; they arc a meta phor which derives its origin from another metaphor.' Y ct the claim that men have natural rights need not involve . us in a theory of natural law. In so far as we accept ruks and principles of morallty prescribing how men ought to behave, we may speak of there being moral or natural rights; and in so far as these rules lay\" down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties arc not prescribed in black and whl.te like their legal counterparts points to a distinction between law and morals; it docs not entail the complete non-existence of moral rights and duties: (see p. ZlS- 219).\n\nThe observations on page 61 of P.W. Peterson's \"Natural Law and Natural Rights\" show that the theory of natural rights which was made so popular by John Locke has since ceased to rccoivc general acceptance. Locke had propounded the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil Government Book 2 S 149).\n\nWhile dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence :\n\n\"Perhaps nothing contributed so much to create and foster hostility to courts and law and constitutions as this conception of the courts as guardians of individual natural rights against the state l\\Ild against society; this conceiving of the law as a finaE and absolute body of doctrine declaring these individual natural rigts;. this theory of constitutions as declaratory of common-law pnnc1plcs, whlch are also natural-law principles, anterior to the state and of. superior validity to enactments by the authority of the state; this theory ot constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received raditional social, political, and economic ideals of the legal profes~10~ .as a . ~per;, constitution, beyond the reach of any agency but 1udmal dccmon.\n\n706 SUPREME COURT REPORTS ( 1973] Supp. S.C.Il.\n\nI may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam:\n\n\"By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which arc independent of the state, has been generally given up. It is held 'that these natural rights can have no other than an ethical value, and have no proper place in politics. 'There never was, and there never can be,' says Burgess, 'any liberty upon this earth and among human beings, outside of state organization'. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have no political force whatever, unless recogmzed and enforced by the state. It is asserted by Willoughby that 'natural rights' could not have even a moral value in the supposed 'state of nature'; they would really be equivalent to force and hence have no eth; cal significance.\" (see p. 310).\n\nIt is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression \"essen6al features\" means the basic structure or framework .of the Constitution, I hav.e already deah with the question as to whether the power to arnend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.\n\nDistinction has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental nght. It is urged that oven though -the Parliament in compliance with article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation becween fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core. There .is also no ob'ective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to\n\nKESAVANANJ)j\\, \"' KE&AIA (Khanna, J.)\n\n1JYI\n\nintroduce uncertainty, in. ; i iµattec of so vital an im{>Pl'tant!: • the at; nendment of the Coiistition. I am, therefore, unable oo aq:ept the , argument, that , even af a' fy, ndamerital , right be held, to be amendable, the , , core or ess, ence of . that right. should be held to be immune from. tht .amendatoey process.\n\nThe enforcement of due process clause in Fourteenth Amendment of US Constitution, it is submitted on the petitioners' behalf, has not caused much difficulty and has not prevented the US courts from identifying the area wherein that' dausc operates. This fact, according to the submission, warrants tho 'conclusion that the concept of implied\n\nlimitation on the , power of . amendment would also not cause much difficulty in actual working. I find considerable difficulty to accede to the bove submission. !The scope of due process clause in Fourteenth\n\nAmndment and of , power of amendment of constitution in article 368 is. different; the two. prowsions operate in different areas, they are meant to deal with different subjects and there is no similarity in the object of Fourteenth Amendment and that of article 368. Any attempt to draw analogy between the two, in my opinion, is far fetched.\n\nIt may be, mentioned that the Draft Report of the Sub-Committee on Fundamental Rights initially contained clause 11, according to which \"no persoii' shall be deprivea of his life, liberty or property without due process of law''. It was then pointed out that a vast volume of case law had gathered around the words \"due process of\n\nlaw\" which were mentioned in the Fifth and the Fourteenth Amendment of the US Constitution. At first those words were regarded only as a limitation on procedure and not on the substance of legislation.\n\nSubsequently those words were held to apply to matters of substantive law as well. It was further stated that \"in fact, the phrase 'without due process of law' appears to have become synonymous with 'without just a use' the court being the judge of what is 'just cause'; and since the object of most legislation is to promote the public welfare by restraining and regulating individual rights of liberty and property the court can be invited, under this clause, to review almost any law\".\n\nView was also oxpresscd that clause 11 as worded might hamper\n\nocial legislation. Although the members of the Committee felt that there was no case for giving a carte bla11che to the Government to arrest, except in a grave emergency, any person without 'due process of law',. there was considerable support for the view that due process clause might hamper legislation dealing with piopcrty and tenancy.\n\nA compromi!e formula was then suggested by Mr. Panikkar and with the supp0rt of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion wa1 adopted that the word \"property\" should be\n\noniittcl from the clause. In the meanwhile, Mr. B. N. Rau during his\n\n7'18 SUPllEME COUllT UPOlTS [197.; J Supp. s.c.Jl.\n\nvlrit \"> America had di!CU.ssion with Justke Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the \"due process\" clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee which replaced the expression \"without due process of law\" by the expression \"except according to procedure established by law\".\n\nThe newly inserted words were borrowed from article 31 of the Japanese Constitution (see pages 232-235 of the Framing of India's Cons- .titution A Study by Shiva Rao). Reference to the proceedings of the Drafting Committee shows that a major factor which weighed for the elimination of. tho expression \"due process of law\" was that it had no dclinite contXJurs. In case the view is now accepted that there are implied limitations on the power of making amendment, the effect would necessarily be to introduce an element of vagueness and indeliniteness in our Constitution which our Constitution-makers weie so keen to avoid.\n\nOur attention has ben invited to the declaration of human rights in the Charter of the United Nations. It is po:nted out that there is similarity between the fundamental rights mentioned in Part II of the Constitution and the human rights in the Charter. According to article 56 of the Charter, all members pledge theinselves to take joint and separate actiion in c<>-0peration with the Organization for the achievement of the purposes set forth in article 55. Article 55, inter alia, provides that the United Nations shall promote universal respect foe, and. observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. It is submitted on behalf of the petitioners that if the power of amendment of the Constitution under article 368 we.e to include the power to abridge or take away fundamental rights, the amendment might well have the effect d curtailing or doing away with some of the human rights mentioned in the United Nations Charter. In this respect I am of the view that the width and scope of the power of amendment of the Constitution would depend upon the provisions of the Consti; ution. If the provisions of the Const'itullion are clear and unambiguous and contain no limitations on the power of amendment, the curt would not be. justified in grafting limitations on the power of amendment because of an apprehension that the amendment might impinge upon human rights contained in the United Nations Charter. It is only in cases of doubt or ambiguity that the courts would interpret a statute as not to make it .inconsistent with the comity of nations or established rules of international law, but if the language of the statute is clear, it must be followed notwithstanding t.he conflict between municipal law and international law which results (see Maxwell\n\nKESAVANANDA v. KERALA (Khanna, J.) 709\n\non The Interpretation of Statutes, Twelfth Edition, p. 183). It has been observed on page 185 :\n\n\"But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. Thre is, for instance, no doubt that a right con.ferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature.\"\n\nThe above observations apply with greater force to a constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and contain no !'tmitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment\n\nshould be read because of the declaration of Human Rights in the UN Charter.\n\nI may mention in the above context that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or convention.\n\nIn India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1%0). According to the Treaties of European Communities, a State on becoming a member of the European Economic Communities (EEC) has to give primacy to the Community laws over the national laws. The principle of primacy of Community law was accepted in six count\"ies of the European communities. Three of them, namely, Netherlands, Luxembourg and Belgium specifically amended their written constitutions to secure, as far as possible, the principle of the primacy of the Community law. The other three, namely, France, Germany and Italy have also constitutional provisions under which it would be possible for the courts in those countties to concede primacy to the Treaties of European Communities, and thus through them secure the primacy of the Community law. Ireland which became a new member of EEC with effect from January 1, 1973 has amended its constitution by the Third Amendment of the Constitution Bill,\n\n1971. This Bill has been approved in a referendum. The relevant part of the Amendment reads as under :\n\n\"No prorision of this Constitution invalidates laws enacted, act; done or measures adopted by the State necessitated by the obliga- !tons of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institution:; thereo.f. from having the force of law in the State.\"\n\nIn Britain also, primacy of the European Community law over the domestic law has been recognized by section 2 of the European Com-\n\n710 SUPREME COUXT REPORTS [1973] Supp. s.c.R.\n\nmunities Act, 1972. Question is now engaging the attention of constitutional experts as to whether it has become neces,; ary to place limitations on the legislative powers of the British Parliament and whether it is on that account essential to have a written constitution for the United Kingdom (see July 1972 Modern Law Review, p. 3.75 onwards ori the subject of Parliamentary Sovereignty and the Primacy of European Community Law).\n\nI am also of the view. that the power to amend the provisions of the Constitution relating to the fundamenllal rights cannot be denied by describing the fundamental rights as natural righ.ts or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There. was no constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did .not' ex'ISt conditions for dignified way of living for Indians during the peniod between August 15, 1947 and January 26,\n\n1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provis\\on for fundainental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said hat the non-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the cxtinguishment of essential values of life.\n\nIt may be mentioned that the provis.ions of art; cle )9 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that resonable restrictions were carved in those rights clearly negatives the concept of absolute na\\ure of those rights. There is also no absolute standard to determine as to what constitutes a fondamental right. The basis of clasoification varies from country to country. What is fundamental right in some countries is not so fa other countries. On account of the difference between the fundamental rights adopted in one country and those adopted in another country, difficulty was experienced by our Constitution-makers in selecting provisions for inclusion in the chapter on fundamental rights (see in ths connection Constitutional Precedents III Series on Fundamental Rights p. 25 publ1shed by the Constituent Assembly of India).\n\nReference ha. been mac!e on behalf of the petitioners to the- Preamble to the Constitution anJ it is subm:tted that the Preamble would control the power of amendment. Submission has also been made in the above contexr that there is no power to amend the\n\nKESAVANANDA v. KERALA (Khanna, J.)\n\n71I\n\ni Preamble because, .according to the submission, Preamble is not a part of the Constitunion but \"walks before the Constitution\". I am unable to accept the contention that the Preamble is not a part of the\n\ntitution. Reference to the debates of the Constituent Assembly shows that there was considerable discussion in the said Assembly on the provisions of the Preamble. A number of amendments were moved and were rejected. A motion was thereafter adopted by the Constituent\n\nAssemby \"that \"the Preamble stands part of the Constitution\" (see Constituent Assembly debates, Vol. X, p. 429-456). There is, therefore, positive evidence to establish that the Preamble is a part of the Indian Constitution. Jn view of the aforesaid positive evidence, no help can be derived from the observations made in respect of other constitutions on the point as to whether preamble is or is not.a part of the constitution. Apart from that, I find that the observations on p. 200.201 in Craise on Statute Law Sixth Edition show that the earlier view that preamble of a statute is not part thereof has been discarded and that preamble is as much a part of a statute as its other provisions.·\n\nArticle 394 of the Constitution shows that the said article as well as articJe 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force at once, i.e. on 26th day of November 1949 when the Constitution was adopted and enacted and the remaining provisions of the Constitut!on would come into force on the 26th day of January, 1950 \"which day is referred to in this Constitution as the commence,. ment of this Constitution''. Article 394 would thus show that except for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 19.50. The words \"the remaining provisions\", in my opinion, would include the Preamble as well as Part III .and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should come into force on November 26, 1949 but the said proposal was rejected.\n\nAs Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process contained in article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure and removing the supposed limitations which are said to be crea:ed by the Preamble. It is not necessary to further dilate\n\n712 SUPBEME COUl.T BEPOllTS [1973] Supp. s.c.11.\n\nupon this aspect because I am of the view that the principle of construction is that reference can be made to Preambl~ for purpose of construing when the words of a statute or Constitution arc ambiguous and admit of two alternative constructions. The preamble can also be used to shed light on and clarify obscurity in the language of a statutory or constitutional provision. When, however, the language of a section or article is plain and suffers from no ambiguity or obscurity, no loss can be put on the words of the section or article by invoking the Preamble. As observed by Story on Constifution, the preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitlimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and. extent, and application of the powers actually conferred by the constitution, and not substantively to create them (see para 462). The office of the Preamble has been stated by the House of Lords in Att.-Gen. v. H.RH. Prince Ernest August11s of: Hanover.(') In that case, Lord Normand said:\n\n\"When there ; s a preamble it is generalfy in its recitals that the mischief to be remedied and the scope of the Act arc described.\n\nIt is therefore clearly permissible to have recourse to it as an aid to c:onstrumg the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Agaiin, the preamble cannot be of muc:h or any assistance in construing provisions which embody qualifications or e)OCeptions from the operation. of the general\n\nurpose of the Act. It is onl1y when it conveys a clear and definite meaning in comparison with relatively obscur¢ or indefinite enacting words that the preamble may legitimately prevail. ......... ..\n\nIf they (the enacting words) admit of only one construction, that construction wi11 receive effect even if it is inconsistent with the preamble, but if the enacting words are capable . of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.\"\n\nJn the President's reference In Re: The Berubari Union and Ex- -change of Enclaves,( 2 ) the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan\n\n( 1 ) [1957] A.C. 436.\n\n( 2 ) [1963] S.C.R. 250.\n\nKESAVANANDA v. KEllALA (Khanna, J.) 713\n\nregarding the division of Berubari U ruon and for exchange of Cooch-\n\nBihar Enclaves in Pakistan and Pakistan enclaves in India. The conten• non which was advanced on behalf of the petinioner in that case was: that the agreement was void as it ceded part of India's territory, and in this connection, reference was made to the Preamble to the Constitution. Rejecting the contention this Court after referring to the words of Story that preamble to the constitullion is \"a key to open the minds of the makers\" which may show the general purposes for which they made the several provisions, relied upon the following observations ef Willoughby about the Preamble to the American Constitution :\n\n\"It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such power embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted.\"\n\nTo the above observations this Court added :\n\n\"What is true about the powers is equally true about the prohibitions and limitations.\"\n\nApart from what has been stated above about the effect of Preamble on the power of amendment, let us deal with the provisions of the Preamble itself. After referring to the solemn resolution of the people of lndna to constitute India into a sovereign democratic republic, the Preamble makes mention of the different objectives which were to be secured to all its citizens. These objectiv~ are :\n\nJUSTICE, social, economic and political;\n\nLIBERTY of thought, expression, belief, faith and worship;.\n\nEQUALITY of status and of opportunity;\n\nand to promote among them all\n\nFRATERNITY auuring the dignity of the individual and the unity of the Nation.\n\nIt would be seen from the above that the first of the objectives mentioned in the Preamble is 11)1 secure to all citizens of India justice, social, economic and political'. Article 38 in Part IV relating to the Directive Principles of State Policy recites that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shah! inform all the institutions of tho national life.\n\n714 SUPREME COURT REPORTS (1973) Supp. S.C.R,\n\nSince the later half of the eighteenth century when the idea of :political equality of individuals gathered force and led to the formation of democratic governments, there has been a great deal of exten- sioo. of the idea of equality from political to economic and social fields.\n\nWide disparities in the standard of hving of the upper strata and the lower strata as also huge concentration of wealth in the midst of .abject poverty are an index of social maladjustment and if contilmed for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if. necessary, blow up the social order. As those belonging to the lower -strata constitute the bulk of the population, the disparities provide a fertile soil for violent upheavals. The prevention of such upheavals :is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affiuent sections of the population. For this purpose the state has to deal with the problems of social security, economic planriing and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and Jights and .welfare of vast sections of the population on the other. The approach which. is now generally advocated for the resolving of the above confl.ict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while .dealing with this matter. has observed in Encyclopaedia of the Social .Sciences :\n\n\\ \\\n\n\"The struggle for freedom .is largely transferred from the plane of political to that of economic rights. :Men become less interested in the abstract fragment of politicil' power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social product. . ...\n\nSo long as there is .inequality, it 'is argued, there cannot be liberty.\n\nThe historic inevitability of this evolution was seen a century ago by de Tocqueville. It is interesting to compare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argµment of Lord Acton that liberty and equality arc antitheses. 'To the latter liberty was essentially an autocratic ideal; democracy destroyed individuaiaty, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather :toward the iirinciple that material equality is growing inescapable\n\nKESAVANANDA v. KERALA (Khanna, J.) 715\n\nand that the affirmation of personality muse be effective upon an immaterial plane.\" (see Vol. IX, p. 445).\n\nI may also refer to another passage on page 99 of Grammar of Politics by Harold Laski : \"The State, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote.\n\nWe arc concerned here, not with the defence of anarchy, bui with the conditions of its avoidance. Men must learn to subordinate their self-interm to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged\n\nthJt the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured.\"\n\nA modern state has to usher in and deal with large schemes.having social and econorn1c content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power g> subordinate the individual rights to the larger interests of society as a step towards social justice.\n\nAs observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading \"Limitations on the Use of Property\" :\n\n''Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited.\"\n\nTo quote the words of Friedmann in Legal Theory :\n\n\"But modern democracy looks upon the right to property as one conditioned by s6cial responsibility by the needs of society; by the 'balancing of interests' which looms so large in modern Jurisprudence, and not as preordained and untouchable private right.\"\n\n(Fifth Edition, p. 406).\n\nWith a view to bring about economic regeneration, the state devises various methods and puts into opc; ation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about tho wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. W c • 4\n\n716 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nneed not dilate further upon this aspect because we are only concerned with the impact of the Preamble. In this respect I find that altho:ugh it gives a prominent place to securing the objective of social. economic and political justice to the citizens, there 'is 'nothing in it which gives primacy to claims of individual right to property over the claims of social,· economic and political justice. There is, as a matter of fact, no _clause or indication in the Pr=ble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can onlybe assured by_ securing the objective of social, economic and political justice.\n\n- ·\n\nReference has been made on behalf of the - petitioners to the Nehru Report in order to show that in the pre-independence days, it was one of the objectives of nationalist leaders to have some kind of charter of human rights. This Circumstance, in my opinion has not muclt material bearing on the point ofcontroversy before us. Our Constitution-makers did incorporate in Part. III of the Constitution certain rights and designated them as fundamental rights. In_ addition to that, the Ovlstitution-makers put in Part IV of the Constitution certain Directive Principles. Although those Directive Principles were not to be criforceable by any court, article -37 declared that those pnncipks ·\n\nwere nevertheless fundamental in the governance of the country and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate[' a pledge to the coming generafions of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempt have, however, been made from time to time to amend the fundamental rights in Part III. The question with which we are concerned is whether there 'is power of amendment under article 368 so as to take away or •. abridge the fundamental rights.\n\nThis question would necessarily have to depend upon the_ language of article 368 as well as upon the width and scope of the . power of amendment under article 368 and the. consideration of th_e Nehru Report in this context would be not helpful. If the language of article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rightS, _the said power cannot be held to be non-existent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical ma_terial can -be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under: -\n\n\"In theinterpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for\n\nI KESAVANANDA v. KERALA (Khanna, J.) 717\n\ncomprehension of the subject-matter, and may also consider whether a tatute was intended to alter the law or to leave it exactly where 1t stood before. But although 'we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge .... we can only use these matters as an aid to •he construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.\" The above observations hold equally good when we are construing the povisioi_is of a constitution. Keeping them in view we can get no matenal assistance in support of the petitioners contention from the Nehru Report.\n\nApart from what has been stated above, we find that both before the dawn of independence as well as during the course of debates of the Constituent Assembhy stress was laid by the leaders of the nation upon the necessity of brillj!ing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stited that \"the great poverty and misery of the Indian people aro due, not only to foreign exploitatiore in India but also to the economic structure of society, which the. alien. rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the conditiom of the Indian masses, ii i.s, essential to make revolutionary changes ilk the prestnt economic and social structure of society and to remove, the: gross inequalities''. The resolution passed by the Congress in 1931 recited that in order to end the cxpFoitation of the masses, political'. freedom must include real economic freedom of the starving millions ..\n\nThe Objectives Resolution which was moved by Pt. Nehru in the: Constituent Assembly on December 13, 19'16 and was subsequentlfpassed by the Constituent Assembly mentioned that there would be guaranteed to all the people of India, \"justice, social, economic, and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief,· faith, worship, vocation, association and action subject to law and public morality\". It would, therefore, appear that even in the Objectives Resolution the first position was given t<>\n\njustice, social, econ<>mic and political. Pt. Nehru in the course of one of his speeches, said :\n\n\"The service of India means the service of the millions who suffer.\n\nIt means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over.\"\n\n46-36 S.C. India/73\n\n718 SUPllEME COtJil.T 'IU!PORTS [-1973) Sopp; s.c.a.\n\nGranville ; Austin in his book \"Extracts from the Indian Constitution : Cornerstone of a Nation\" after quoting the abovewords'bf Pt. Nehru has stated :\n\n''Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only. 'a means to -an end', Nehru had said, 'that .end being the raising of the people . . . to higher levels and hence the general advancement of humanity'.\n\nThe fust task of this Assembly (Nehru told the members) is to free India through a new Constitution, to \"feed the starving people, and to clothe the naked masses, and to give every Indian the £ullest; opportunity to develop himsel£ according to his capacity.\n\nK. Santhanam, a prominent.southern member of the Assembly and editor of a major newspaper, described. the situation in terms of three revolutions. The political =olution .would end, he wrote, with indcpendcru:e. The social revolution meant 'to get (India) out of the medievalism based on birth, religion, custom, and. community and. reconstruct her . social structute on modern founda-- tions of law, individual merit;· and secuiar education'. The third revolution was an economic.· one : 'The transition from primitive rural economy to scientific and planned agriculture and industry'.\n\nRadhakrishnan (now President of li1dia) believed India must have a 'socio\"onOmic revolution' designed not only to bring . about 'the real satisfaction of the fundamental needs of the common pian', but to go much deeper and bring ahout---'a fundamental\n\nchange in the structure of Indian society'.\n\nOn the achievement of this_; great social cliangc depended India's survival. 'If we cannot solve this problem soon, 'Nehru .warned the Assembly, 'all our paper constitutions will become useless and purposeless ... '\n\n'The choice for India, 'wrote Santhanam,' . . . . is between - rapid evolution and violent revolution . . . because the Indian masses carmot and will not wait for a long time to obtain the satisfaction of their minimum needs.' ·· · •••••••••\n\nWhat was of greatest \"importarice to most Assembly members, however, .was not that socialism be embodied in the Constitution,\n\n, -\n\nKESAVANANDA \"· KERALA (Khanna, J.) 719\n\nbut that a democratic constituti<>n and with a socialist bias be framed so as to allow the nation in the future to bcco!ne as socialist as its citizens desired .or its needs demanded. Bcirjg, in general, imbued with the goals, the humanitarian bases, and some of the techniques of .social democratic thought, such was th~ type of constitution' that Constituent Assembly members created.\"\n\nDealing with the Directive Principles, Granville Austin writes:\n\n\"'In the Directive Principles, however, one finds an even cle11rcr\n\nstatement of the social revolution. They aim at making the Indian masses fe in the positive sense, free from the passivity engendered by centuries of coercion by s<x:iery and by nature, free from the abject physical conditions that had prevented them from fulfilling\n\ntheir best selves. . ... •·• ..\n\n13y establishing these positive obligations of the state, the members\n\nof the Constituent Assembly made it the responsibility of future 'Indian governments to find a middle way between individual liberty and the public good, between preserving the property and •the privilege of the few and bestowing benefits on the many in -order to liberate 'the powers of all men equally for contributions i:o the common good' .\n\n•••••••\n\nThe Directive Principle$ were a declaration of economic independence, a decl:aration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists.\"\n\nPt Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said :\n\n\"And as I said on the liast occasion the real difliculty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that arc called 'fundamental' whether they relate to property or whether they relate to something else. Both arc important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it docs not matter how good it is, how perfect it is, is a Constitution that has past its use.\"\n\n720 SUPREME COURT REPORTS (1973) Supp. S.CJt.\n\nAgain in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said :\n\n\"But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy.\"\n\nIt cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the .rich and the poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the Fust and Fourth Amendments of the Constitution. The material further indicates that the approach adopted was that there should be no reluctince to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Dire.ctive Principles.\n\nSo far as the question is concerned as to whether the right to property can be said to pertain to basic structure or framework of the Constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property ill a matter of detail.\n\nIt is apparent from what has been discussed above that the approach of •the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time. As observed by Harold Laski in Grammar of Politics, the historical argument is fallacious if it regards the regime of private property as a simple and unchanging thing. The hi.story of private property is, above all, the record of the most varied limitations upon the use of the powers it implies. Property in slaves was valid in Greece and Rome; it is no longer val.id today. Laski in this context has quoted the following words of John Stuart Mill:\n\n\"The idea of property is not some one thing identical throughout history and incapable of alteration . . . at any given time it is a brief expression denoting the rights over things conferred by the faw or custom of some given society at that time; but neither on this point, nor on any other, has the law and custom of a given time and place, a claim to be stereotyped for ever. A proposed reform in laws or customs is not n<cessarily obiectionable becuse its adoption would imply, not theadaptatii:>n of all human affairs to the existing idea of property; die. growtli and improvement of human affairs.\"\n\nXl!SAVANANDA fl, DllALA (Khanna, J.) 721\n\nThe argument that Parliament cannot by amendment enlarge its -OWn powers 'is 'Untenable. Amendment of the Constitution, in the\n\nTery nature of things, can result in the conferment of powers on or the enlarge.ment of powers of. one of the organs of the state. Likewise, it can resiilt in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Uriion Government would involve consequential contraction of powers and functions in the Government of the States. The same is true of the converse position. There is nothing in the Constitution which prohillits or in any other way prevents the enlargement of powers of Parliament as a result of constitutional amendment and, in my opinion, such an amendment cannot be heltl to be impermissible or beyond the purview of article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy C.J. who gave a dissenting judgment did not question the validity of the amendment on the ground that Oirechtas had thereby increased its power. He struck it down on the ground that there was no power to amend the amending clause. No such difficulty arises under our Constitution because of the existence of an express provision. I am also unable to accede to the contention that an amendment of the Constitution as a result of which the President js bound to give his assent to an amendment of the Constitution passed in accordance with the provisions of article 368 is not valid. Article 368 itself gives, inter alia, the power to amend article 368 and an amendment of article 368 which has been brought about in the manner prescribed by that article would not suffer from any constitutional or legal infirmity. I may mention in this context that an amendment of the US Constitution in accordance w'1th article 5 of the US Constitution does not require the assent of the President. The change made by the Twentyfourth Amendment in the Constitution of 1ndia, to which our attention has been invited, has not done away with the assent of the President but has made it obligatory for him to give his assent to the Constitution Amendment llill after it has 'been passed in accordance with artide 368. As it is not\n\nuow open to the President to withhold hls assent ro a Bill in regard to a constitutional amendment after it has been duly passed, the element of personal discretion of the President disappears altogether. Even apart from that, under our Constitution the position of the President is that of a constitutional head and the scope for his acting in exercise <>£ h'is personal discretion is rather small and limited.\n\nReference was made during the course of arguments to the provisions of section 6 oI tbe Indian Independence Act, 1947. According to\n\n722 SUPREME cOURT REPORTS [1973] Supp. s.c.R.\n\nsub-section (1) of that section, the Legislature of each of the new Dominions shall have full power to make laws for that Dominion, incl\\uding laws having extra-teriitorial opeartion. Sub-section ( 6) of the .section provided that the power referred to in sub-section (1) of this section extends to the making of laws limiting for the future the powers of the Legislature of the Dominion. No help, fa my opinion, can be derived from the above provisions because the Constinient Assembly framed and adopted the Constitution not on the basis of any power derived from section 6 of the Indian Independence Act. On the contrary, the members of the Constituent Ambly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and concluding words d the Preamble to the Constitution. There is, indeed, no reference to the Indian Independence Act in the Constitution e.xcept about its repeal in article 395 of the Constitution.\n\nApart from the above, I find that all that sub-section ( 6) of section 6 of the Indian Independence Act provided for was that the power referred to in sub-section ( 1) would extend to the making of laws. limiting for the future the powers of the Legislature of the Dominion, The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws. would not contravene the provisions of the Constitution.\n\nAt the same time, the Constituent Assembly inserted article 368 in the Constitution which gave power to the two Houses of future Parliamen~ .to amend the Constitution in compliance with the procedure laid down in that article. There is nothing in section 6 of the Indian Independence Act which stood in the way of the Constituent Assembly against the insertion of an article in the Constitution conferring wide power of amendment, and I find it difficult ta restritt the scope of article 368 because of anything said in section 6 of the Indian Independence Act.\n\nArgument on behalf of the petitioners that our Constitution represents a compact on the basis of which people joined the Indian Union and accepted the Constitution is wholly misconceived.\n\nThe part of India other than that comprised in erstwhik Indian States was already one territory on August 15, 1947 when India became free. So far as the erstwhile Indian States were concerned, they acceded to the Indian Union long before the Constitution came into force on January 26, 1950 or was adopted on November 26, 1949. There thus arose no question of any part of India comprising the territory of India joining the Indian Union on the faith of any assurance furnished by the provisions of the Constitution. Some assurances were given to the minorities and in view of that they gave up certain demands. The ri2hts of minorities are now protected in articles 25 to 30. Apart from\n\nKESAVANANJYA v. KERAJ.A (Khanna, J•) 723\n\nthe articles relating to protection to the minorities, the various articles conta; ned in Part III of the Constitution are applicable to all citizens.\n\nThere is nothing to show that the people belonging to different re gions would have or indeed could have declined to either join the Indian Union or to remain in the Indian Union but for the incorpo. ration of articles relating to fundamental rights in the Constitution.\n\nThe Constitution containing fundamental rights was framed by the people of India as a whole speaking through their representative and if the people of India as a whole acting again through their representatives decide to abridge or take away some fundamental right like one relating to property, no question of breach of faith or violation of any alleged compact can, in my opinion, arise.\n\nThis apart, compact means a bargain or agreement mutually entered into, which necessarily connotes a choice and volition for the party to the compact. Whatever may be the relevance or significance of the concept of compact in the context of the US Constitution where different States joined together to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been pepared by the Philadelphia Con vention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was. also no occasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent As.; embly.\n\nReference has been made on behalf of the petitioners to the casc of Mangat Singh & Anr. v. Union of India(') which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with article 4, according to which any law referred to 'm article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law} as Parliament may deem necessary, and observed :\n\n\"Power with which the Parliament is invested by Arts. 2 and 3,. is powe~ to admit, establish, or form new States which conform to the democratic: pattern envisaged by the Constitution; and the power which the Parliament mav exercise by law is supplemental,\n\nincidental or consequential to the admission, establishment or formation of a State as. contemplated by the Constitution, and is not power to override the constitutional scheme. No State can therefore be formed. admitted or set up by law under Art. 4 by\n\n\n724 SUPREME COU!lT REPORTS [1973] Supp. s.c.R.\n\nthe Parliament which has not effective legislative, executive and judicial organs.\"\n\nThe above passage, in my op'inion, docs not warrant an inference of an implied limitation on the power of amendment as contend.ed on behalf of the petitioners. This Court dealt in the above passage w1.th the import of the words \"supplemental, incidental and consequenal\n\nprovisions\" and held that these provisions did not enable the Parliament to override the constitutional scheme. The words \"constitutional\n\nscheme\" had plainly reference to. the provisions of the Constitution which dealt with a State, its legislature, judiciary' and other matters in Part VI. Once the State of Haryana came into being, it was to have the attributes of a State contemplated by the different aricles of Pa.rt VI in the same way as did the other States. No question arose. m that case about limhation on the power of amendment under article 368 and as such, that case cannot be of any avail to the petitioners.\n\nLearned counsel for the petitioner has invited our attention to the constitutional position specially in the context of ci4il l!iberties in Canada. In thi:s respect we find that the opening words of the Preamble to the British North America Act, 1867 read as under :\n\n\"Whereas the provisions of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain .and Ireland, with a constitution similar in principle to that of the United Kingdom;\"\n\nSection 91 of the above mentioned Act deals with the legislative authority of Parliament of Cana.Ia. The opening words of section 91 are as under :\n\n\"It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the section, it is hereby declared that ( notwithstanding anything In this Act) the exclusive 'legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say,--\".\n\nThere follows a list of different subjects. The first amongst the subiects, which was inserted by British North America Act 1949, is : \"The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this\n\nKESAVANANDA v. KERALA (Khanna, J.) 725\n\nAct assigned exclusively to the Legislatures of the provinces, or \" It is no; necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature m1y exc!ll5ivcly make laws jn relation to matters coming Within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the first amongst whlch is \"TI1e amendment from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of the Lieutenant Governor\". In view of the fact that amendment of the Constitution is a!l1'lng the subjects of legislation, the only distinction in Canada, it has been said, between ordinary legislation by Parliament and constitutional law is that the former concerns all matters not speciallly stated as within the ambit of pr~ vincial legislation while the latter concerns any fundamental change m the division of rights. Further, although because of the federal character of the State, the Canadian constitution cannot be called flexible, it is probably the least rigid of any in the modern federal states (see Modern Political Constitutions by C. F. Strong).\n\nIt appears that at least six different views have been propounded in Canada about the constitutional position of basic liberties. To date, the Supreme Court of Canada has not given Judicial approval to any of these views. Different members of the Court have voiced various opinions on the matter, but all of these fall far short of settling the ; ssue. It should also be noted that the fundamental problem is not whether Parliament or the legislature may give to the people basic freedom, but rather which one may interfere with them or take them away (see Civil Liberties in Canada by D.A. Schmeiser P. 13).\n\nAn important case which had beating on the question of civil liberties was the Alberta Press case (1). That case related to the validity of an Act which had placed limitations on the freedom of the Press\n\nand the Supreme Court of Canada held that the Act was ultra vires, since it was ancillary to and dependent upon the Alberta Social Credit Act, which itself was ultra vires. Three of judges, including Duff C. J., went further than this, and dealt with the freedom of speech and freedom of Press. It was obsenied that curtailment of the exercise of the right of the public discussion would interfere with the working of parliamentary institutions of Canada. Opinion of Duff C.J. was based not on the criminal law power but OJ). the necessity for maintaining democratic society as contemplated by the Constitution. A later decision dealing with free speech was Switzmand v. Elbing and Attorney-Gene\n\nral of Quebec('). In that case the Supreme Court declared invalid the\n\n( 1) [1938] S.C.R. 100 (Canada). (') [1957] S.C.R. 285 (Canada).\n\n726 1 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nQuebec Communistic Propaganda Act. All the judges but one were agreed that the statute did nodall with.inprovincial ccmpetence under property and Civil rights or matters of a merely lOICai or private nature in the province .. Abbott J. held that the Parliament itself could not abrogate the right of discussion and. debate.\n\nAn article by Dale Gibson 'in Volume 12-196667 in McGill Law Journal shows . that though the proposition enunciated by Duff C. J. has commanded the allegiance of an impressive .. 11umber of judgcSo and has not been decisively rejected, it has never oeen accepted by a majority of the members of the Supreme Court of Canada or of any other court. Some judges have assumed that basic freedoms may properliy be the subject matter of legislation separate and apart from a11y other-subject matter. Others have taken the view tha~ unlimited jurisdiction falls within Dominion control tinder its general power to make laws \"for the peace, order and good government of Canada\". A third view which has been taken is that the creation of a Parliament and reference in the Preamble to \"a constiiution similar in principle to that of the United Kingdom\" postulates that legislative body would be elected and function in an atmosphere of free speech. It is not necessary to give the other views or dialate upon different views. Bora .Laskin while dealing with the dictrim of Abbott J. has observed in Canadian Constitutional Law : ·\n\n\"Apai:t from the dictum by Abbott J. in the Switzman case, supra, there is no high authority which places civil liberties beyond the legislative reach of both Parliament and the provincial Legislatures.\n\nThere are no explicit guarantees of c'ivil liberties in the B.N.A. Act -nothing comparable t<;> the Bill of Rights (the 1st ten amendments) in the Constitutioh''of the United States, which, within limits and on co.nditions prescribed by the. Sup(eme Court as ultimate cxp0urtder . of the meaning and range of the Constitution, prohibits both federal and state -:tion infringing, inter alia, freedom of religion, of .spee1=h, of the press aqd of assembly.\" (see p. 970). ' '\n\nIt would ppear. from the above that the different views which have been expressed in Canada 'are i1i.'the context of the prei:rible 'ahd section ofi:the British North Ameriea Atr, the provisions of which are materially differeni fi611.1 our Conititution. 'Even In ihc context of the British oiih _America A\\:t,._the osrvations .\\if; .A?boit J. ', iied upon on behalf of the petitioners have not been accepted by the roajority of the judges of the Canadian Supreme Courf, and in my opinion,' they\n\n~1fford a fragile bas.is for building a theory of ill'lplicd litnliatloris:\n\n' \"\n\nKESAVANANDA v. KERALA (Khanna, J.) 727\n\nIt may be. mentioned that in August 1%0 the Parliaent of Canada passed the Canadian Bill of Rights. Section 1 of the Bill declared certain human rights and fundamental freedoms and reads as under :\n\n\"1. It is hereby recognized and declared that in Canada there have existed and. shall continue to exist without discrimination by rctason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,\n\n(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;\n\n(b) the right of the individual to equality before the law and the protection of the law; ·\n\n( c) freedom of religion;\n\n( d) freedom of speech;\n\n( e) freedom of assembly and association; and\n\n(f) freedom of the press.\"\n\nAccording to section 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall\n\noperate notwithstanding the Canadian Bill! of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise tM\n\nabrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of section 2 reads as under :\n\n\"Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the ahrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... \" (underlining supplied).\n\nPlain reading of section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in section l of the\n\nDill are not absolute but are subject to abrogation or abridgement if an express declaration to that effect be made in a law of Canada. Section 2 of the Bill shows that if an express declaration to that effect be made an Act of the Parliament can override t)le, provisions of the Bill of Rights. Section 2 is thus inconsistent with the theory of implied limitations based on human rights on the power of the Canadian Parliament.\n\n728 SuPREME COUllT REPORTS [1973) Supp. S.C.R.\n\nAnother case from Canada which has been referred to on behalf of the petitioners and which in my opinion is equally of no avail to them is The Attorney Gem:ral of Nova Scotia and The Attorney General of Canada(') decided by the Supreme Court of Canada. It was held in that case that an Act respecting the delegation d jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa, if enacted, would not be constitutionally valid since it contemplated\n\n<lelegation by Parliament of powers, exclusively vested in it by section 91 of the British North America Act, to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under section 92 of the Act, to Parliament. The -Parliament of Canada and each Provincial Legislature, according to the Supreme Court of Canada, was sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under section 91 or section 92, as the case may be. Neither was capable therefore of delegaling to the other the powers with which it had been vested nor of receiving from the other the powers with which the other had been vested. It is plain that that case related to the delegation of powers which under the British North America Act had been assigned exclusively to Parliament or to the Provincial Legislatures. Such a delegation was held to be not permissible. No such question arises in the present case.\n\nWe may now deal with some of the other cases which have been referred to on behalf of the petitioner. Two of those cases are from Ceylon. The constitutional position there was that section 29. of the Ceylop (Constitution) Order in .Council, 1946 gave the power to make laws as well as the power to amend the Constitution though the procedure prescribed for the two was ditferent. Section 29 reads as under :\n\n\"29 ( 1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.\n\n(2) No such law shall-\n\n( a) prohibit or' restrict the free exercise of any re!igion; or\n\n(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or\n\n( c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or\n\n( 1 ) (1950] S.C.R. 31 (Canada).\n\nKESAVANANDA \"· KEllALA (Khanna, J.) 729\n\n( d) alter the constitution of any religious body except with the consent of the governing authority of tb.at body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the re- .quest o£ the governing authority of that body :\n\nProvided, howeve.-, that the preceding provisions of this, subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members o£ the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act.\n\nThis proviso shall cease to have effect on a date to Le fixed by the Governor-General by Proclamation published in the Gazette.\n\n(3) Any law made in contravention o£ sub-section (2) of this section shall, to the extent of such contravention, be void.\n\n(4) In the exercise of its powers under this section, Parliament may amend or repeal any Gf the provisions of this Order or of any other Order of Her Majesty in Council in its application to the Island:\n\nProvided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present).\n\nEvery certificate of the Speaker under this sub-section shall be conclusive for all purposes and Sihall not be questioned in any court of law.\"\n\nIn Liyanage and Others v. The Queen(') the ppellants had been charged with offences arising out of an abortive coup d'etat on Januany 27, 1962. The story of the coup d' etat was set out in a White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law (Special Provisions) Act was passed and it was given restrospective effect from January l, 1962. The Act was limited in operation to those who were accused o£ offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a section of the Penal\n\nCode so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice\n\n( 1) [1966] All E.R. 650.\n\n730 SUPREME COUJIT REPORTS (1973) Supp, S.C.R.\n\nto nominate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provisions of the Act as weH as the nomination of the judges.\n\nSubsequently the Act was amended and the power of nomination of the judges was conferred on the Chief Justice, The appellants having been convicted at the trial before a court of three judges nominated under the amended Act, went up in appeal before the Judicial Committee. The conviction of the appellants was chaJlenged on three grounds but the Judicial Committee dealt with only two grounds. The first ground was that the Ceylon Parliament was limited by an in.ability to pass legislation which was contrary to fundamental principles of justice. The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those.. individuals would otherwise be protected. The second conltention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power bi the legislature, or an 'interference with judicial power, which was outside the legislature's competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial Committee referred to the provisions of the Ceylon (Constitution) Order in Council, 1946 and the Ceylon Independence Act, 1947 and observe&\n\nthat the joint effect of the said Order and Act was intended to and resulted In giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it was held, was not limited by inability to pass laws which offended fundamental principles of justice. On the second ground, the Judicial Committee held the Acts of 1962 to be invalid as they involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from a political, legislative and executive control.\n\nIt would thus appear that the decision is based upon the ground of severance of powers between legislature, judiciary and executive under the Ceylon Constitution and furnishes no support for the theory of implied limitations on the power of Parliament. On the contrary, the Judicial Committee while dealing with the first contention rejected the theory of limitations on the power of Par1iament to make a law in violation of the fundamental principles of justice. The Judicial\n\nKESAVANANDA ti. KERALA (Khanna, J.) 731\n\nCommittee, it is also noteworthy, expressly pointed out that there had been no amendment Qf the Constitution in accordance with Section 29( 4) of the Constitution by two-thirds majority and as such they had not to deal with that situation.\n\nAnother case to which reference was made on behal£ of the peti~ tioners was The Bribery Commissioner v. Pedrik Ranasinghe( 1 ). In . that case it was found that the members of the Bribery Tribunal had been appointed by the Governor-General on the advice of the Minister of Justice in accordance With Bribery Amendment Act but in con:ra vention of section 55 of the Ceylon Constitution. [Ceylon (Constitution) Order in Council, 1946) according to which the apP?irtmcnt of judicial officers was vested in the Judicia! Service Com~sion. It was held that a legislature has n9 power to ignore .the .conditions of law-making that arc imposed by the instrurn.ent which itself regulates its power to make law. This restriction cxi&ts independently of the question whether the legislature is sovereign, as is that of Ceylon.\n\nIt would appear from the above that the point of controversy which arose for determination in that case was diifercnt from that which arises in the present case because we are not in this case concerned with any law made by a' legislature in contravention of the constitutional provisions Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with s1.1b-scct'ion (2) of section 'l9 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of sub-section (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observe.ii that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in section '19(2) of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution.\n\nThere was, it is further submitted, sim'.ilarity between the provisions of section 29(3) of the Ceylon Constitution and article 13(2) of the Indian Constitution because it was provided in section 29(3) that any law made in contravention of section '19(2) shall to the extent of such contravention be void.\n\nI find it difficult to accede to the contention that the Judicial Committee .lad down in the above case that sections 29(2) and 29(3) placed a .restncuon on .the power of amendment of the Constitution under\n\n('> [1965] A.C. 172.\n\n732 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nsection 29(4) of the Constitution. The question with which the Judi cial Committee was concerned was regarding the validity of the appointment of the members of the Bribery Tribunal. Such appointment though made in compliance with the provisions of the Bribery Amendment Act, was in contravention of the requirements of section 55 of the Ceylon Constitution. No question arose in that case relating to the validity of a constil'Utional amendment brought about in compliance with section 29( 4) of the Constitution. Reference to the argument of the counsel for the respondent on the top of page 187 of that case shows that it was conceded on his behalf that \"there is no_!imi. tation at the moment on the right of amendment or repeal except the requirement of the requisite majority\".\n\nThe Judicial Committee nowhere stated that they did nQt agree with the above stand of the counsel for the respondent. Perusal of the judgment shows that the Judicial Committee dealt with sections 18 and 29 together and pointed out the difference between a legislative law, whlch was required to be passed by a bare majority of votes under section 18 of the Constitution, and a law relating to a constitutional amendment which was required to be passed by a two-ii:hirds majority under section 29( 4).\n\nDealing with the question of sovereignty, the Judicial Committee observed:\n\n\"A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is on! y a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is no~ pas.sied by_ a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself whlch can always, whenever it chooses, pass the amendment with the requisite majority.\"\n\nfr has been submitted on behalf of the respondents that the above passage indicates that the Judicial Committee took th~ v!ew .that :he amendment of all the provisions of the Ceylon Const1tut10n mcludmg those contained in sub-sections (2) and (3) of section 29 could be passed by a two-thlrds majority. I~ is also stated that the restr.icti?ns imposed by sub-section (2) of section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making constitutional amendment ?Y . twC>-thirds majority in compliance with section ~( 4) of th~ Constitution. t :was in that sense that the Judicial Comm.tttee, according to the submission, used the word \"entrenched\". Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure\n\nKESAVANANDA v. KERALA (Khanna, J.) 733\n\nby K. C. Wheare 1963 Reprint that \"these safeguards (contained in section 29) of the rights of communities and religions could be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution\". These submissions may not be bereft of force, but it is, in my opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Oinstirntion at greater length. The point of controversy before us would have to be decided in the light essentially of the provisions of our own Constitution. Suffice it to say that Ranasinghe's case does not furnish any material assistance to the stand taken on behalf of the petitioners.\n\nWe may now advert to the case of McCawley v. The King.('). The said case related to the Con:titution of Queensland in Australia.\n\nQueensland was granted a Constitution in 1859 by an Order in Council made on June 6. The Order in Council set up a Legislature in the territory consisting of the Queen, a Legislative Council and a Legislative Assembly and the law making power was vested in the Queen acting with the advice and consent of the Council and Assembly. Any law could be made for the \"peace, welfare and good government of the co!ony'', the phrase generally employed to denote the plenitude of sovereign legislative power even though that power be confined to certain subjects or within certain reservations. The Legislature passed a Constitution Act in 1867. By section 2 of that Act the legislative body was declared to have power to make laws for the peace, welfare and good government of the colony in aH cases whatsoever. The only express restriction on this comprehensive power was in section 9 which required a two-thirds majority of the Council and of the Assembly as a condition precedent to the validity of legislation altering the constitution of the Council. In 1916 the Industrial Arbitration Act was passed. The said Act authorised the Governor in Council to appoint the President or a judge of the Court of Industrial Arbitration to be a judge of the Supreme Court of Queensland. lt was also provided that the judge so appointed shall have the jurisdiction of both offices, and shall hold office as a judge of the Supreme Court during good behaviour. The Governor in Council, by a commission, appointed the appellant who was the President of the Court of Industrial Arbitration to be a judge of the Supreme Court during good behaviour. The Supreme Court of Queensland held that the appellant was not entitled to have the oath of office admin:istered to him or to take his seat as a member of the Supreme Court: Subsequently, the Supreme Court of Queensland gave a judgment in ouster against the appellant The provisions of section 6 of the Industrial Arbitration Act of 1916 under which the appellant had been appointed a judge of\n\n( 1) [1920] A.C. 691. 47-36 S.C. Ind; a/73\n\n734 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nthe Supreme Court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the _seven judges of the High Court of Australia agreed with the Supreme\n\nCourt of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed.\n\nThe matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limit_ed period; and (2) that section 6 of the lndustrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitrat; on. The appellant was further held to have been validly appointed.\n\nThe above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the propo, ition that in the absence of a restriction, it is not.possible to impose a restriction upon the legislative power. It was observed :\n\n\"The Legislature of. Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.\n\nNo such restriction has been established, and none in fact exists, in such a case as is raised in the issues now under appeal.\"\n\nIt was also observed :\n\n\"Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section : 'This section is fundamental or organic; it can only be altered in such and such manner'; and of another : 'This section is not of such a kind; it may consequently he altered with as little ceremony as any other statutory provision.' \"\n\nThe decision in the above cited case can hardly afford any assistance to the petitioners. On the contrary, there are passages in the judgment which go against the stand taken on behalf of the petitioners.\n\nSection 5 of the Colonial Laws Validity Act, 1865 to which there was a reference in the McCawley's case reads as under:\n\n\"Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall; in respect to the colony under its jurisdiction have,\n\nKESAVANANDA fl, XllALA (Khanna, J.} 735\n\nand h¢ deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Or<kr in Council or colonial law for the time being in force in the said colony.\"\n\nReference has been made during arguments to the decision of the Privy Council in the case of Attorney-General f<>r New South Wales\n\nv. Trethowan(1 ). The said case related to a Bill passed by the New\n\nSouth Wales Parliament for repeal of a section proding for referendum as well as to another Bill for abolition of the Legislative Council.\n\nThe Privy Council affirmed-the decision of the Australian High Court\n\nwhich had held by majority that the Bills had not: been passed in the \"manner and form\" within the meaning. of seotion 5 of the Colonial Laws Validity Act, and as such could not be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word \"passed\" in that section.\n\nWe are not concerned in the present case w\\th the aforesaid provisions.\n\nThere is also nothing in the conclusions at whi~\\ I have arrived which runs counter to the principles laid down in the Trethowan' s case.\n\nAnother Australian case to which reference has been made during the course of arguments is The State of Victoria v. The Commonwealth.<') It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament tin exercise of its powers under section Sl(ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the court, in the definition of \"employer\" in the Pay-roll Tax Assessment Act, thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees, including employees of departments engaged in strictly governmental functions, is a valid exercise of the power of the Commonwealth under the above provisions of the Constitution. There was disimssion in the course of the judgment on the subject of implied limitation on the Commonwealth legislative power under the Constli.tution arising from the federal nature of the Constitution and different views were expressed. Three of the Judges, including Barwick C. J. took the view that there was no such limitation. As against that, four Judges were of the opinion that there was an implied limitation on Commonwealth .legislative power under the Constitution but the impugned Act did not offend such limitation. Opinion was expressed that the Commonwealth Parliament while acting under the Iegiislative entry of taxation\n\n( 1 ) [1932] A.C. 526.\n\n( 2) 45 Australian Law Journal Reports 251.\n\n736 SUPREME COURT REPORTS [1973) Supp. S.C.R.\n\ncould \\lot so use the power of taxation as to destroy the States in a federal structure. The question as to what is the scope of the powe£ of amendment was not considered in that case. The above case as such cannot be of much assistance for determining as to whether there a:e any implied lim'1tations on the power to make constitutional ;1::'!cn<ln1ent.\n\nI am, therefore, of the opinion that the majority view in the Goiak Nat\\i's case that Parliamew did not have the power to amend any of the provisions of Parr Ill of the Constitution so as to take away or abridge the fundamental rjghts cannot be accepted to be correct.\n\nFundamental rights contained in Part III of our Constitution can, in my opinion, be abridged or taken away in compliance with the procedure prescribed by arnicle 368, as long the basic structure of the Constitution remains unaffected.\n\nWe may now deal with the Twentyfourth Amendment. It has sought to make clear matters regarding which doubt had arisen and conflicting views had been expressed by this Court. We may in this context set forth the Statement of Objects and Reasons of the Constitution (Twentyfourth Amendment) Bill. The Statement of Objects and Reasons reads as under :\n\nSTATEMENT OF OBJECTS AND REASONS\n\n\"The Supreme Court in the well-known Golak Nath's case 1%7 (2 SCR 762) reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights.\n\nThe result of the judgment is that Parliament is considered to have no power to take away or curtail any \"f the fundamental rights guaranteed by Part III of the Constitu6c:1 .even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. ft is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Pa rt III within the scope of the amending power.\n\n2. The Bill seeks to amend article 368 suitably for the purpose and makes it clear that article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further pm vides that when a Constitution Amendmont Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under article 368.\"\n\nKESAVANANDA v. KERALA (Khanna, J.) 737\n\nSection 2 of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) Act has added a clause in article 13 that nothing in that article would appl, y to any amendment of the Constitution made under article 368. As a result of section 3 ot the Amendment Act, article 368 has been re-numbered as clause (2) thereof and the marg; nal heading now reads \"Power of Parliament to amend the Comtitution and procedure therefor\". Non-obstante clause (I) has been inserted in the article to emphasise the fact that the power exercised under that article is constituent power, not subject to the other provisions of the Constitution, and embraces within itself addition, vanation and repeal of any provision of the Constitution.\n\nAmendment has also been made so as to make it obligatory for the President to give his assent to the Amendment Bili! after it has been passed in accordance with the article. Clause (3) has further been added in article 368 to the effect that nothing in article 13 would apply to an amendment made under article 368. Although considera- .ble arguments have been addressed before us on the point as to whether the power of amendment under article 368 includes the power to amend Part III so as to take away or abridge fundamental rights, it has not been disputed before us that the Constitution (Twentyfourth Amendment) Act was passed in accordance with the procedure laid down in article 368 of the Constitution as it existed before the passing\n\nof the said Act. In view of what has been discussed above at length.\n\nI find no infirmity in the Constitution (Twentyfourth Amendment) Act. I, therefore, uphola the validity of the said Act.\n\nWe may now deal with the Coristitution (Twentyfifth Amnd ment) Act, 1971. The Twentyfifth Amendment has made three material changes :\n\n(i) It has amended article 31(2) in two respects.\n\n{a) It substitutes the word \"amount\" for the word \"compensation\" for property acqwred or requisitioned.\n\n(b) It has provided that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the \"amount\" is to be given otherwise than in cash.\n\n(ii) It has provided that the fundamental right to acquire, hold and dispose of property under article 19(1)(£) cannot be invoked in respect of any such law as is referred to in article 31(2).\n\n(iii) It has inserted article 31C as an overriding article whicla\n\nmakea the fundamental rights conferred by articles 14, 19 and 31 inapplicable to certain categories of laws passed by\n\nthe Parliament or by any State Legislature.\n\n738 SUPREME COURT REPORTS (197~] Supp. S.C.R.\n\nSo fa.r as the substitution of the word \"amount\" for the word \"compensation\" for property acquired or requisitioned in article 31 (2) is concerned, we find that this Court held m Mrs. Bela Bose(') case that by the guarantee of the right to compensation for compulsory acquisition under article 31(2), before it was amended by the Constitution (Fourth Amendment) Act, the owner was entitled to receive a .\"just equivalent\" or \"full indenmification\". In P. Vajravelu M ud11har's(') case this Court held that notwithstanding the amendment of article 31(2) by the Constitution (Fourth Amendment) Act and even after the addition of the words \"and no such law shall be called in question in any Court on the ground that the compensatlion provided by that law is not adequate\", the expression \"compensation continued to have the same meaning as it had in article 31 (2) before it was amended, viz., just equivalent or full indemnification. Somewhat difterent view was taken by this Court thereafter, in the case of Slzantilal Mangaldas(\"). In the case of P. Vajravelu Mudaliar (supra) i~ was observed that the constitutional guarantee was satisfied only if a just equivalent of the property was !liven to tho owner. In the case of Slzantilal Mangaldas (supra) it was held that \"compensation\" being itself incapable of any precise determination, no definite connotation could be attached thereto by calling it \"just equivalent\" or \"fuU indemnification\", and under Acts enacted after the amendment of article 31(2) it is not open to the Court to call. in question the law providing for compensation on the , round that it is inadequate, whether the amount of compensation is fixed by the law or is to be determined according to principles specified therein (see observations of Shah J. on page 5% in the case of R. C. Cooper v. Union('). After further discussion of the views expressed in those two cases, Shah J. speaking for the majority, observed :\n\n\"Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge if it is relevant to the determination of compensation and is a recognized principle applicable in the determination of compensation for property compullorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar's case (supra) or in Shanti/al Mangaldals case (supra) the Act, in our judgment, is liable to be struck down as it fails\n\n( 1 )\n\n[ 1954] S.C.R. 558.\n\n\n ( 8)\n\n\nKESAVANANDA \"· KERALA (Khanna, J.) 739\n\nto provide to the expropriated banks compensation determined according to relevant principles.\"\n\nThe amendment in arti.cle 31 (2) made by the Twentyfifth Amc1)dment by substituting the word \"amount\" for the word \"compensation\" is necessarily intended lo get over the difficulty caused by the use of the word \"compensation\". As the said word was held by this Court to have a particular connotation and was construed to mean just equivalent or full indemnification the amendment has replaced that word by the word \"amount\". In sub'stituting the word \"amount\" for\n\n\"compensation\" the Amendment has sought to ensure that the amount determined for acquisition or requisition of property need not be just equivalent or full indemnification and may be, if the legislature '° chooses, plainly ina<lequat~. It is not necessary to further dilate upon thjs aspect because wha'ever may be the connotation of the word \"amuunc', it would not affect the validitv of the amendment made in article 31 (2). .\n\nAnother change made in article 31(2) is that the law tor the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the \"amount\" fixed or determined for the acquiSJtion or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in article 31(2).\n\nAccording to clause (2B) which has been added as a result of the Twentyfifth Amendment in article 31, nothing in sulxlausc (f) of clause (1) of article 19 shal~ affect any such law as is referred to in clause (2). In this connection we find that this Court held in some cases that articles 19(l)(f) and 31(2) were exclusive. In A. K. Gopalan\n\nv. The State of Madras(') a person detained pursuant to an .order made in exercise of the power conferred by the Preventive Detention Act applied to this Court for a writ of habeas corpus claiming that the Act contravened the guarantee under articles 19, 21 and 22 of the Constitution. The majairity of this Court (Kania C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das JJ.) held that article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and \"within the four corners of that Article\". They hold that a person detained may 11ot claim that the freedom guaranteed under article 19(l)(c) was infringed by his detention, and that validity of the law providing for making orders of detention will not be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal\n\n( 1) [ 1950] S.C.Jl.. 81.\n\n740 SUPREME COURT REPORTS [ 19731 Supp. s.c.R.\n\nliberty is infringed otherwise than according to the procedure established by law. Faz! Ali, J. expressed a contrary view. This case formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individual's right and not upon its effect upon the guarantee of the fundamental freedom, and as a corollary thereto, that the freedoms under articks 19, 21, 22 and 31 arc cxclusiv.,_,, ach article enacting a code relating to protection of distinct rights (see p. 571 in the case of R. C. Cooper, (supra). The view expressed in Gopalan's case (supra) was reaffirmed in Ram Singh and Others v. The State of Delhi('). The principle underlying the judgment of the majority was extended to the protection of the right to property and it was held that article 19(1)(f) and article 31(2) were mutually exclusive in their operation. In the case of State of Bombay v. Bhanii Munii & A.nother(2 ) this Court held that article 19(1) (f) read w1th clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasunable restrictions contemplated by clause (5) could not be brought into play. If thorc is no property which can be acquired, held or disposed of, no restriction can .be placed on the exercise of the right to acquire,. hold or dispose it of. In Kava'•ppara Kottarathil Kochuni's(') case, Subba Rao J. delivering the judgment of the majority of the Court, observed that clause (2) of article 31 alone deals with compulsory acquisition of property by the State for a public purpose, and not articlt: 31 ( 1) and he proceeded to hold that the expression \"authority of law\"- means authority of a valid law, and on that account validity of tho law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under article 19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955 Bhanji Munji's case (supra) \"no longer holds the field\". After the decision in K. K. Kochuni's case (supra) there arose two divergent lines of authority. According to one view, \"aµthority of law\" in article 31(1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, inclu&ng the right to hold property guaranteed by article 19(1) (f). The other view was that \"authority of a law\" within the meaning of article 31 (2) was not liable to be tested on the ground that it impaired the guarantee of article 19(1) (f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R. C. Cooper (supra), Shah J. speaking for the majority held that in determining the impact of State action upon constitutional guarantees which arc\n\n(') [1951] s.c.R. 451.\n\n(2) [1955] I S.C.R. 777.\n\n\nKESAVANANDA ti, KP:RALA (Khann•, J.) 741\n\nfundamental, the extent of protection against impairment of a fui; idamental right is determined not by the ob.ject of the Legislature nor by the form of the action, but by its direct operation upon the individual's right!. It was further observed :\n\n\"We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with article 31(2). Article 31(2) requires that property mmt be acquired for a public purpose and that it must be orqui-.r1. under a law with characteristics let out in that Article.' Formal compliance with the conditions under article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition mu1t be under the authority of a law and the expression \"law\" means a L.w which is W?thin the competence of the Legislature, and doe1 not impair the guarantee of the rights in Part III. We are unabl~ thcrtlore, to agree that article 19( 1) ( f) and 31 (2) are mutually exclusive.\"\n\nThe Twentvfifth Aendment seeks to overcome the effect of the above decision in R. C. Cooper's case. It nas sought to resolve the earlier conflict of views noticeable in this respect in the judgments of this Court. Provision has accordingly been made that the fundamental right to acquire, hold or dispose of property under article 19(1) (f) cannot be invoked in respect of any such law as is referred to in article 31(2). In view of what has been discussed earlier while dealing with the Twentyfourth Amendment, the change made by addition of clause (2B) in article 31(2) is permissible under article 368 and cannot be held to be invalid.\n\nWe may now deal with article 31C, introduced as a result of the Twentyfifth Amendment. Perusal of tliis article which has been reproduced in the earlier part of this judgment shows that the article consists of two parts. The first part states that notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles speaified in clause (b) or clause ( c) of article 39 shall .be deemed to be void on the ground that\n\nit is inconsistent with or takes away or abridges any of the rights conferred by article 14, article 19 or artiicle 31. According to the second part of this article, no law containing a declaration that it is for giving effect to such policy shall be called in q11estion in any court on the ground that it does not give effect to such policy. There then follows the proviso, according to which where such law is made by the Leg'islature of a State, the provisions of the article shall not apply\n\nthereto unless such law, having been reserved for the consideration of the President, has received his assent.\n\n742 SUPREME COURT REPORTS [1973] Supp. s.cJ\\.\n\nTh~ first part of article 31C is similar to article 31A except in respect 1>t the subjLct matter. Artick 31A was insertecl by the Constitution (; First Amendment) Act, 1951. Clause (!) of article 31A as then inaerted was in the following words :\n\n\"(!) Notwithstanding anything in the foregoing provisions of this :!!art, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or mod;. fication of any such rights shall be deemed to be void on the ground' that it is inconsistent withi or takes away or abridges any of the rjghts conferred by, any provisions of this Part :\n\nProvided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President; has received his assent.\"\n\nSubsequently, clause (I) of article 31A was amerided by the Const'itution (Fourth Amendment) Act, 1955. New clause (!) was in the following word~ : \"(!) Notwithstanding anything contained in article 13, no law providing for-\n\n( a) the acquisition by the State.of any estate or of any rights therein or the extinguishment or modification of any such rights, or\n\n(b) the taking over of the manngement of any property by the State for a limited period either in the pubhc interest or in order to secure the proper management of the property, or\n\n( c) the amalgamation of two or more corporations either in he public interest or in order to secure the proper management of any of the corporations, or\n\n( d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or\n\n( e) the cxtinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agri:cment, lease or licence,\n\nshall be deemed to be void on the ground that it is inconsistcn~ with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 :\n\nKESAVANANDA \"· KERALA (Khanna, J.) 743\n\nProvided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto\n\nunless such law, having been reserved for the consideration of die President, has received his assent.\" Clause (b) and (c) of article 39 referred to in article 31C read u undtr:\n\n\"39. The State shall, in particular, direct its policy toward! securing-\n\n(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; ( c) that the operation of the economic system docs not result in the concentration of wealth and means of productioti to the common detriment; • . . . . . . .\n\nIt would appear from the above that while article 31A dealt witii a law providing for the acquisition .by the State of any. estate or of any rights therein or the extinguishment or modification of such righ11 or other matters mentioned in clauses (b) to ( e) of that article, article 31C relates to the securing of the objective that the ownership and control of the material resources of the community arc so distributed as best to subserve the common good and that operation of the economic system docs not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the firsr dame of article 31A and that of the first part of article 31C is identical. Both articles 31A and 3IC deal with right to property. Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of article 31C is to prevent concentration of wealth ao.d means ot producnion and to ensure the distribution of ownership and control .of the material resources of the community for the commOD good. Article 31C is thus essentially an extension of the principle\n\nwhich was accepted in article 31A. The fact that the provisions of article 31C are more comprehensive and have greater width compared to those of article 31A would not make any material difference.\n\nLikewise, the fact that article 31A deals with law providing for certain subjects, while article 31 C deals with law ving effect to the policy awards securing the principles specified in clause (b) or clause\n\n( c) of .article 39, would not detract from the conclusion that article 31.C .is an .extension .of the principle wHich was accepted ill article 31A.\n\nIndeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in clause (b) or\n\n744 SUPllEME COURT J!EPOllTS ( 1973) Supp. S.CJl,\n\nclause (c) of article 39 acts upon the mandate contained in article ~. according to. which the Directive Principles arc fundamental ln the governance of the country and it shall be the duty of the State to apply those principles in making laws. If the amcndmont of the Constitution by which art'icle 31A was inserted was valid, I Cal\\ sec no ground as to how the Twentyfifth Amendment re]/ating to the insertion of the first part of article 3.lC can be held to be invalid. The validity of the . First Amendment which introduced article 31A was upheld by this\n\nCourt as long ago as 1952 in the case of Sankan' Prasad v. Unirm of\n\nIndia (1upra). Article 31A having becri held to be valid during all these years, its validity cannot now be questioned .on account of the doctrine of nare decisis. Though the period for which Sankari Prasad's case stood unchallenged was not very long, the effects which have followed in the passing of the State laws on the faith of that decision, as observed by Wanchoo J. in Golak Nath's case, arc so overwhelming that we should not &sturb the decision in that case upholding the validity of the First. Amendment It cannot be disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands which have been created and the State laws dealing with agriculitural land which have been passed in the course of the years after the decision in Sankani Prasad's case have brought about an agrarian revolution. Agricultural population constitutes a vast mapority .. o( the population in this country. In these circumstances, it would in my opinion be .wrong to hold now that the decision upholding the First Amendment was not correct, and thus disturb all that has been done during these years and create chaos into the lives of millions of our countrymen who have benefited by these laws relating to agrarian reforms. I woulkl, therefore, hold that this is one of the fittest cases in which the principle of stare decisi.J. should be applied.\n\nThe ground which sustained the validity of clause (1) of article 31A, would equally sustain the validity of the first part of article 31 C. I may in this context refer to the observations of Brandeis J. in Lesses v.\n\nGarnett(') while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast acld'ition to the electorate destroyed tl1c social compact and tihe residuary rights oi the States. Justice Brandeis observed :\n\n''This amendment is in character and phraseology precisely siinilar to the 15th. For each the same rmthod of adoption was pursued.\n\nOne cannot be valid and the other invalid. That the 15th is valid . . . has been recognized and acted upon for half a century ...\n\nThe suggestion that the 15th was incorporated in the Constitution\n\n(') (258) U.S. 130.\n\nKESAVANANDA \"· KERALA (Khanna, J.) 745\n\nnot in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained.\".\n\nWe may now deal with the second part.of article 31C, according to which no law containing a declaration that it is for. Biving effect to the policy of State towards securing the principles spccihed in clause\n\n(b) or clause (c) of article 39 shall be called in question in any court on th• ground that it does not give effect to such policy. The effect-of the second part is that once the declaration contemplated by that article is made, the validity of such a law cannot be called in question in any court. on the ground that it. is inconsistent with or takes away or abriJges any of the rights conferred by articl~ 14, 19 or 31 of the Constitution. The declaration thus gives a complete prOll:ection to the provisions of law containing the declaration from being assailed on the ground of being violative of articles 14, 19 or 31. However tenuous the connection of a law with the objective mentioned in clause (b) and clause ( c) of article 39 may be and however violative it may be of the provisions of articles 14, 19 and 31 of the Constitution, .it cannot be assailed in a court of law on the said ground because of the insertion of the declaration in question in the law. The result is that if an Act contains 100 sections and 95 of them relate to matters not connected with the objectives mentioned in clauses (b) .iand ( c) of article 39 but the remaining five sections have some nexus with those objectives and a declaration is granted by the Legislature fa respect of the entire Act, the 95 sections which have nothing to do with the objectives of. clauses (b) and ( c) of article 39, would also get protection. It is wcllknown that State Legislatures are quite often swayed by local and regional considerations. It is not difficult to conceive of laws being made by a State Legislature which are directed against citizens of India who h2il from other States on the ground that the residents of the State in question are economicall'Y backward. For example, a law might be made that as the old residents in the State are economically backward and those who have not resided in the State for more than three generations have an affiuent business in the State or have acquired property in the State, they shall be deprived of their business and property with a view to vest the same in the old residents of the\n\nState. Such a law if it contains the requisite declaration,.. would be protected and it would not be permissible to assail it on the ground of being violative of articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the country.\n\nSuch a law might also provoke the Legislatures of other States to make Jaws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact .such discriminatory law .. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a\n\n'746 SUPt!P.ME couRT REPORTS f1973) Supp; s.c.R.\n\nlllltional point of view. The second part of article 31C would thus provide the cover for the making of laws with a regional or local laias even though such l; iws imperil the oneness of the nation and contain the dangerous seeds of national disintegration. The classic\n\nwords of Justice Holmes have a direct application to a situation like this. Said the great J udgc :\n\n\"I. do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.\" (Holmes, Collected Leaa:I Papers (1920) 295·96).\n\nThe fact that the assent of the President would have to be obtained for rnch a law might not provide an effective safeguard because occasions can well be visualized when the Stateconcerned might pressurise the Centre and thus secure the assent of the President. Such occasions would be much more frequent when the party in power at the Centre has to depend upon the political support of a regional party which is responsible for the law in question passed by the State Legislature .\n\n. It seems that while incorporating the .part relating to declaration in article 31C, the sinister implications of this part were not taken mto account and it. repercussions on the unity of the country were not realised. In deciding the. question relating to the validity of this part of article 31C, we should not, in my opinion, take too legalistic\n\na view. A legalistic judgment would indeed be a poor consolation if it affects the unity of the country. It would be apposite in this context to reproduce a passage from Story's Commentaries on the Constitution of the United States wherein he adopted the admonition of Burke with a slight variation as under :\n\n\"The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame; or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity . to gratify the schemes of visionary politicians. The business of 'those, who are called to administer it, is .to rule, and not !JO wrangle. It would be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire; that we had fr'ittered down. a power, and at the same time had destroyed the republic (para 456}.\"\n\nThe evil consequences which would flow from the second part of article 31C would not, however, be determinative of the matter. I would therefore examine the matter from a legal angle. In this respect I find that there can be three type~ of constitutiona~ amendments which !!lay be concei:ved to give protection to legislative measures and\n\nmake them immune from judicial scrutiny or attack in court of law.\n\nKESAVANANllA \"· KlllALA (Khanna, J.) 747\n\nAccording to the first type, after a statute has already been enact cd by the Leislature a constitutional amendment is made in accordance with article 368 and the said statute is inserted in the Ninth Schedule under article 31B. Such a statute or any of the provisions thereof cannot be struck down in a court of law and cannot be deemed to be void or ever to have become void on the ground that the statute rir any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III. In such a case, the provisions of the entire statute arc placed before each House of Parliament. It is oven to not less than one-half of the members of each House and not less than twCl-cltlrds, of the members of each House. voting . and present after appling their mind to eithe1 place the st; itute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each House of Parliament and not less than two-thirds of the mem bcrs present and voting in each House decide that the provisions of a particular statute should be protected under article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being vi<llative of any provision of Part III of the Constitution. Such an amendment was introduced by the Constitution (First Amendment) Act, 1951 and its validity was upheld in Sankari Prasad's case (mpra).\n\nThe second type of constitutional' amendment in that where the constitutional amendment specifies the subject 'in respect of which a law may be made by the Legislature and the amendment also provides that no law made in respect of that , ubject shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution. In such a case the Iaw is protected even though it violates the provisions of Part III of the Constitution. It is, however, open in such a case to the court, on being moved by an aggrieved party, to see whether the law has been made for the purpose for which there is constitutional protection. The law is thus subject to judicial review and can be struck down if it is not for the purpose for which protection has been afforded by the constitutional amendment. To this category belong the laws made undctr article 311'l. of the Constitution which has sped fied the subjects for which laws might be made, and gives protection to those laws .. It .i.! always open to a party to assail the validity of such a law on the ground that it does not relate to any of the subjects mentioned in article 31A. It is only if the court finds that tht impugned lavi' relates to a subject mentiontd in article 31A that tht protection aiiltemplated Drthat artick wOIJld be a&rded lb the impugned law\n\n7411 SuPDME COU!l.T REPORTS [1973] Supp. s.c.a.\n\nand not otherwise. Article 31A was introduced by the Constitution (First A.mendment) Act, 1951 and as mentioned earlier, the val'idity oi the First Amendment was upheld in Sankari Prasad's case (supra).\n\nThe third type of constitutiona' amendment is one, according to which a law made for a specified object is protected from attack even though it violates articles 14, 19 and 31. The constitutional amendment further provides that the question as to whether the law is made for the specified object is not justiciable and a declaration for the purpose made by the legislature is sufficient and would preclude the court from going into the question as to whether the law is made for the object prescribed by the constitutional amendment. To such category belongs that part of Twentyfifth Amendment which inserted article 31C when taken along with its second part. The law made under article 31C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is Becessary in the case of laws inserted m the Njnth Schedule of the Constitution. Nor can the law made under article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned , in arficle 31C. Article 31C thus departs from the scheme of article 31A, because while a judicial review is permissible under article 31A to find out as to whether a law has been made for any of the objects mentioned in article 31A, such a judicial review has been expressly prohlbited under article 31C.\n\nThe result is that even if a law made under article 31C can be shown in court of law to have been enacted not for the purpose mentioned in article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of articles 1\"', 19 and 31 of the Constitution because of the declaration made by the legislature as contemplated by second part of article 31C. It may also be mentioned in this context that such a law can be passed by a bare majority in a legislature even though only. the minimum number of members required by the 'quorum, whlch is gener1lly one-tenth of the total membership of the legislature, are present at the time the law is passed.\n\nThe effect of the above amendment is that even though a law is in substance not in furtherance. of the objects mentioned in articles 39(b) and ( c) and has only a slender connection: with those objects, the declaratio11 1J1ade by the Legislature would stand in the way of a party challenng'it on the gr0W1d that it is not for the furtherance of those objects. A power is thus being conferred upon the Central and State Legislatures as a result of this provision to make a declaration in respect of any law made by them in viol; ition of the provisions of articles 14, 19 and 31 and thus give it protection from being assail.cil\n\nKESAVANANDA (I, KERAL.A (Khanna, J.) 749\n\non that ground in a court of law. The result is that even though for the purpose of making an amendment of the Constitution an elaborate procedure is provided in article 368, power is now given to a simple majority in a State or Central Legislature, in which only the minimum number of members are presont to satisfy the requirement of quorum, to make any law in contravention of the provisions of articles 14, 19 and 31 and make it immune from attack by inserting a declaration in that law. It is natural for those who pass a law to entertain a desire that it may !)ot be struck down. There would, therefore, be an inclination to make an Act iinmune from attack by inserting such a declaration ven though only one or two provisions of the Act have\n\n31 connection with the objects mentioned in article 39(b) and ( c).\n\nArticles 14, 19 and 31 can thus be reduced to a dead letter, an ineffective purposeless showpiece in the Constitution.\n\nThe power of making an amendment is one of the most important powers which can be conferred under the Constitution. As mentioned earlier, according to Finer, the amending clause is so fundamental to a constitution that it may be called the constitution itself while according to Burgess, the amending clause is the most important part of a Constitution. This circumstance accounts for the fact that an elaborate procedure is prescribed for the amending of the constitution. The power of amendment being of such vital importance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a constitu~ tlonal amendment and the States wouhl be most reluctant, having got . such a power, to part with it. In empowering a State Legislature to\n\nmake laws violative of articles 14, 19 and 31 of the Constitution and in further empower'ing the State Legislature to make laws immune_ from attack on the ground of being violaiive of articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the pc; wer to .make amendment under article 368 (viz., the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of article 31C relating to the declaration is that the law in question may relate even to objects wliich have not been specified. Article 31C taken along with the second part relating to the declaration departs from the scheme c:if article 31A because while the protection afforded by article 31A is to laws made for specified subjects, the immunity granted under article 31C can be availed of even by laws which have not been made for the specified objects. The law llhus made by the State Legislatures would have the effect of [lrO-tanto amendment of the Constitution. Such a\n\n48--36 s. a. lndia/73\n\n7 50 SUPREME COURT RE~ORTS [ 1973] Supp. S.CJl.\n\npower, as pointed out earlier, can be exercised by the State Legislature by a simple majority in a House wherein the minimum number of members required by the rule of quorum are present.\n\nIn Re Initiative and Referendum Act(1) the Judicial Committee after referring to a previous dcdsion wherein, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Taverns observed on, page 945 :\n\n\"But it docs not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the censtitutional questions which thus . ,, anse.\n\nIf it is impermissible for a legislature to create and endow with its own capacity a legislative power not created by the Act to which it owes its own existence, it should, in my opinion, be equally impcrmissib1c in the face of article 368 in its present form under our Constitution, for the amending authority to vest its amending power in another authority like a State Legislature. It has to be emphasised in this context that according to article 368, an amendment of this Constitution may be initiated onhy by the introduction of a Bill for the purpose in either House of .Parliament. The word \"only\" has a significance and shows that as long as article 368 exists in its present form, the other methods -0f amendment are ruled out.\n\nIt may be mentioned that apart from the question of legislative competence, the articles for the violation of which statutes have been quashed in overwhelming majority of cases are articles 14, 19 and 31.\n\nThe question as to whether the impugned statute is beyond legislative competence can be agitated despite the protection of article 31C in the same way as that question can be agitated despite the protection of article 31A, but in other respects, as would appear from what has been stated above, article 31C goes much beyond the scope of articles 31A ; and 31B.\n\nIn a federal system where the spheres of legislaave powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exch1sively dealt with by the State Legislatures. This is true not only of a federal system but also in a constitutional set up like ours wherein\n\n-(1) [1919] A.C. 935.\n\n:itllSAV.A, NANl>A \"· DRALA (Khanna, J.) 751\n\nthe 'Constitution-makers, though not strictly adopting the federal 'ystem, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether .the Central Legislature has t:l'C$passed upon the\n\nkgisfative field of the State Legislatures or whether the State Legislatures have encroached upon the legislative domain of the Central Legislature IS furnished by the courts and they are vested With the powers of judicial review to determine the validity of the Acts passed by the legislaturts. The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted 'l'l'.ithin the four corners of the\n\nlegislative lists earmarked for thC!ll; .the courts also deal with the question as to whether the laws arc made in conformity with and not in violation of the other provisions of the Constitution. Our Constitution-makers have provided for fundamental rights in Part III and made them justiciable. As long as some fundamental rights exist and are a part of the Constt'totion, the powF'\" of judicial review has also to be\n\nxercised with a view to sec that the guarantees afforded by those rights are not contravened. Dealing with draft article 'l5 (corresponding to present article 32 of the Constitution) by which a right is given to move the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar speaking in the Constituent Assembly on December 9,\n\n1948 observed :\n\n\"If I was asked to natije any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I could not refer .to any other article except this one. It is the very soul of the Constinition and the very heart of it and l am glad that the House has .realised its importanco.\"\n\n(CAD debates, Vol VII, p. 953).\n\nT!!dicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. The one sphere where there is no judicial review fur finding out whether there has been infraction of the provisions of Part III and there is no power of striking down an Act, regulation or prov'ision even though it may be inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution is that incorporated in article 31B taken along with the Ninth Schedule. Article 31B was inserted, as llllClltioned earlier, 'by the Constirotion (Fust Amendn; icnt) Act.\n\n752 SUPREME COUJl.T REPORTS (1973] Supp. S.C.ll.\n\nAccording to article 31B, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of P.art III of the Constitution. The one thing significant .to be noted in this connection, however, is that the power under article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, Is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendment under article 368, viz., the prescribed majority in each Bouse of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the: prescribed majority in each House to decide whether the particular statute should be pj; iced in the, Ninth Schedule, and if so, whether it should be placed there .'in its entirety or partly. As against that, the position under article 31C is that though judicial review has been\n\nr.xcluded by the authority making the constitutioual amendment, the law in respect of which the judicial review has been excluded is one yet to be passed by the legislatures. Although the object for which such a law can be enacted has been' specified in article 31C, the power to decide as to whether the law enacted is for the attainment of that object has been vested not in the courts but in the very legislature which passes the law. The vice of article 31C is that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the questinn as to whether the law enacted is really for that object. The kind of limited judicial review which is permissible under article 31A for the purpose of finding as to whether the law enacted is for the purpose mentioned in article 31A has also been done away with under article 3fr©rilI!lit'1!1fa:t110f the declaration mentioned in article 31C is to grant pWtecllClti t\"'the:::\\aw1 :enacted by a legislature from being challenged aii''lltOOllds'!of•e®ilirwvdncio.u.of articles 14, 19 and 31 even though such\n\na\"'faW<~Mn :lk'llhiwmnlnnhen1mun ro have not been enacted for the clJjects\"fuert'IOOt'>l!lliriro :wdiclti 3K}.['.01,141cConstitution postulates Rule of L!tii' lWthl31!iC'ilsel'(iJ!:lsUfDfreimacy1nfo:Uio10nnstitution and the laws as ~'C'd m.11£tbiw.inmSf 'f.ii<iimsnillg !tiiw.ern0fc.exclusion of judicial revil'iv ifir I a ctc!!lsllltd~! ·.inclurlingi 16tiiteidl.egia\\amr<k i§()ntempMed by\n\nafucle''3i~, irf''lnf opinlc!m\\>1stril:H5 a1rl!harbasioihui:lill•J1.i1>f; e. Constitilcilii'lfilt ffllll !llfi'tJof.cirtkrl\"q31£ tlum klJl:S!hymi.<il.rth¢·p; ir~ible llt'iilt1 >lif oWh1i/gi:o..,.Htilire$' lllllt'lcundm a11ilih: i36il.1\n\n1l 1las ueerrr&gi&Eot/obeJ.talbbfutlie2rcipOi!(lmts that1 tcckcmk1 tfon reftrbli; iJn/2rtialei3)C iwDulchnoOprJ1du4d .~It §O\\lffnofr~\n\nKESAVANANDA \"· KERALA (Khanna, J.) 753\n\nfinding whether a !<aw is for giving effect to the policy of. the State towards securing the principles specified in clauses (b) and ( c) of article 39 and that if an enactment is found by the court to be not for securing the aforesaid objectives, the protection of article 31C would not be available for su.ch legislation.\n\nI find it difficult to accede to this contention in view of the Ian guage of article 31 C pertaining to the declaration. The above conten\n\ntion: would have certainly carried weight if the second part of the articli: relating to the declaration were not there. In the absence of the declaration in question, 'it would be open to, and indeed necessary, for the court to find whether the impugned law is for giving effect '° the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39 before it can uphold the validity of the impugned law under article 31C. Once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy mentioned in article 31C. Article 31C\n\nprotects the law giving effect to the policy of the State towards secur ing the pimciples specified in clauses (b) or ( c) of article 39 and at the same. time provides that no law containing a declaration that it is for giving effect to such pi>licy sha!D. be called in question in any coUrt on the ground that it does not give effect ti> such policy. It. is, therefore, manifest that once a law contains the rquisite declaration, the court would be precluded from going into the question that the law does not give effect to the policy of the State towards securing the principles specified 'in clauses (b) or ( c) of article 39. In view of the conclusive nature of the declaration, it would, in my opinion, be straining the language of article 31C to hold that a court can despite the requigjte declaration go into the question that it does not give effect to the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39. The result is that if a law contains the declaration contemplated by article 31C, it would have complete protection from being challenged on the ground of being viol'ative of articles 14, 19 and 31 of the Constitution, irrespective of the fact whether the law is or is not for giving effect to the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39: To put it in other words, even those laws which do not give effect to the policy of the State towards securing the principles specified in clauses (b) or (c) of article 39 would also have the protection if they contain the declaration mentioned in article 31C.\n\nI am also of the view that the validity of the latter part ot article 31C relating to declaration cannot be decided on the basis of any concession made during the course of arguments on behalf of the respondents. Such a concession if not warranted by the laQguage of\n\n754 SUPREME COURT REPORTS [1973] Supp. s.c.a.\n\nthe impugned provision, •cannot be of much avail. Matters relating to construction of an article of the Constitution or the constitutional validity of an impugned provision have to be decided in the light of the relevant provisions and a concession made by the Sttatc counsel or the opposite counsel would not absolve the court from determining the matter independently of the concession. A counsel may sometimes make a concession in order to secure favourable verdict on an other important point, such a concession woulq, however, not be binding upon another counsel. It is well-settled that admission or concession made on 'a point of law by ther counsel is not binding upon the party represented .by the counsel, far less woukl such admission or concesion preclude other parties from showing that the concession was erroneous and not justified in law. It may, therefore, be laid down u a broad proposition that constitutional matters cannot be disposed of in terms of agreement or compromise between the parties, nor can the decision in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions.\n\nThe position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity o~ an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the spcilicd subject Both the above types of constitutional amendments arc permissible under article 368. What is not permissible, however, is a third type of constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute whicli might be enacted by the !legislature in future in respect of a specified subject but also excludes judicial review. for finding whether the statute enacted by the legislature is in respect of the subject for which judicial review has been excluded.\n\nIn exercising the power of judicial review, it may be mentioned that the couns do not and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essential to be those oE the legislatures. It is for the liegislatures to decide as to what laws they should enact and bring on the statute book. The task of the courts is to interpret the laws and to adjudicate about their validity, they neither approve nor disapprove legislative policy. The office of the courts is to ascertain and declare whether the impugned legislation is in consonance with or in violation of the provisions of the constitution. Once the courts have done that, their duty ends.\n\nThe courts do not act as super legislature to suppress what they deem\n\nKESAVANANDA \"· KERALA (Khanna, J.) 755\n\nto be unwise lrgislation for if they were to do so the courts will clivert criticism from the legislative door where it belongs and will thus dilute the responsibility of the electd representatives of the people. As was observed by Shri Alladi Krishnaswamy Iyer in' speech in the Constituent Assembly on September 12, 1949 \"The Legislature may act wisely or unwisely. The princips formulated by the Legislature may commend themselves to a Court or they may not. The province of the Court is normally to administer the law as enacted by the Legislature within the limits of its power\".\n\nIn exercising the power of judicial review, the courts cannot be oblivious of the practical needs_ of the government. The door h~• to be left open for trial and erroa:. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review is not intended to create what is somet'imes called Judicial Oligarchy, the the Aristrocracy of the Robe, Covert Legislation, or Judge-made law.\n\nThe proper forum to fight for the. wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot\n\nbe transferred to the judicial arena. That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decisiou have to keep aloof from the din and controvCTsy of politics and that the fluctu:iting fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the constitution is meant not merely for peoplie of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution :\n\n\"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics ... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not.\n\nBut a constitution is not intended to embody a particular economk theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundainentalliy differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.\" (see Mr. Justice Holmes, p. 82-83 (1931 Edition).\n\n756 SUPREME COURT REPORTS (1973] Supp. S.C.R.\n\nIt would also be pertinent in this context to reproduce the words of Pat:mjali Sastri CJ, in the case of State of Madras v. V. G. Row(') while dealing with reasonable restrictions :\n\n\"In evaluating such elusive factors and forming their own conception of what is reasonable, in aU the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibi!icy and self-restraint and the sobering reflection that the Constitution is meant not only for peop)j: of their way of think:ing but for all, and that the majority of the elected representatives of the people have,. in authorising the imposition of the restrictions, considered them to be reasonable.\" In my opinion\" the scc'Ond part of article 31C is liable to . be quashed on the followin~ grounds : . ('1:) It gives a carte blanche .to the Legislature to make any law violative of articles 14, 19 .and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution.\n\n(2) The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in article 31C. The vice of second part of article 31C lies in the fact that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the Legislature precludes a party from sh.owing that the law is not for that object and prevents a court jrom going into the question as to whether the law enacted is really. for that object. The exclusion by the Legislature, including .. a State Legislature, of even that limited judicial review strikes at the basic strucnue of the Constitution. The second part of article .31C goes beyond the permissible limit of what constitutes amendment under article 368. ·\n\nThe second part of article 31C can be severed from the rc:iµaining part of article 31C and its invalidity would not affect the validiIY of the remaining part. I would, therefore, strike down the following . words in article 31C :\n\n\"and no law containing a declaration that it is for giving effect to such poticy shall be called in question in any court on the ground that it does not give effect to such policy,\" ·\n\n(') [1952] S.C.R. 597.\n\nXESAVANANDA v. KERALA (Khanna, J.) 757\n\nWe may now deal with the Constitution (Twentyninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 -as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been ablie to find no infirmity in the Constitution (Twentyrinth Amendment) Act. It may be mentioned that an argument was advanced before us that articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of article 31A. Such a contention was advancl:d in the case of N. B. /eeieebhoy\n\nv. Assistant Collector, Thana Prant, Thana.(') Repelling the contention Subba Rao J. (as he then was) speaking for the Co\"5titution Bench of this Court observed :\n\n\"The learned Attorney-General contended that Arts. 31-A and Art. 31-B should be read together and that if so read Art. 31-B would only illustrate cases that would otherwise fall under Art. 31-A and, therefore, the same construction as put upon Art. 31-B should also apply to Art. 31-A of the Constitution. This construction was sought to be based upon the opening words of Art. 31-B, namely, 'without prejudice to the generality of the provisions contained in article 31-A .. We find it difficult to accept this argument. The words 'without prejudice to the generality of the provisions', indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Art. 3'1-A of the Constitution. If every Act in the Ninth Schedule would be covered by Art. 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Art. 31-A(2) of the Constitution. We, therefore, hold that Art. 31-B is not governed by Art. 31-A and that Art. 31-B 'is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.\" I see no cogent ground to take a different view. In the result I uphold the validity of the Constitution (Twentyninth Amendment) Act.\n\nI may now sum up my conclusions relating to power of amendment under article 368 of the Constitution as it existed before the amendment made by the Constitution (Twentyfourth Amendment) Act as well as about the validity of the Constitution (Twentyfourth Amendment) Act, the Constitution (Twentyfifth Amendment) Act and the Constitution (Twentyninth Amendment) Act :\n\n(i) Article 368 contains not only the procedure for the amendment of the Constitution hut also confer~ the power of amen. ding the Constitution.\n\n( 1) [1965] I S.C.I\\. 636.\n\n758 SUPREME.COURT REPORTS [1973] Supp. s.c.R.\n\n(ii) Entry 97 in List I of the Seventh Schedule of the Constitution\n\ndt>es not cover the subject of amendment of the Constitution.\n\n(iii) The word \"law\" in article 13(2) does not include amendment of the Constitution. It has reference to ordinary piece of legislation. It would also in view of the definition contained in clause (a) of article 13(3) include an ordinance, order. bye. law; rule, regulation, notification, custom or usage having in the territory of India the force of law.\n\n(iv} Provision for amendment of the Constitution is made with a\n\nview to overcome the difficulties which may be encountered in future in the working of. the Constitution. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were. made for amendment of the Constitution, the people would have recourse to extra-constitutional method like revolution to change the Constittttion.\n\n(v) Argument that Parliament can enact legislation under entl')' 97 List I of Seventh Schedule for convening a Constituent\n\nAssembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights j, untenable. There is no warrant for the proposition that as the amendments under article 368 are 1iot brought about through referendum or passed m a Convention !lie power of amendment under artkle 368 is on that !itcourtt subject to limitations.\n\n(vi) The possibility that power of amendment may be abusea\n\nfurnishes no gtound for clcnial of its existence. The best safe. guard against abuse of power is public opinion and the good\n\nsense of the majority of the members of Parliament. It is also not correct to assume that if Parliament is held entitled te> amend Part Ill of the Constitution, it would automatically and necessari, ly result in abrogation of all fundamental rights.\n\n(vii) The power of amcndtnent under artitle 368 .does not incllilc\n\npower to abrogat< the Consti111tion nor does . it include the. power to alter the basic structure or fntnework of the C'.onstitution. Subject to the retention of die basic 1tructur~ or framework of the Constitution, the power of anienameni is plenary\n\nand includes within itself the p0wcr to amend \\:he various articles of the Constitution, including those relating to fundamental rights as well as those which tnat/ be said to relate t<>\n\n' I\n\nKESAVANANDA I/, KERALA (Mathew, J.) 759\n\nessential features. No part of a fundamental right can claim immuniy from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles. ·\n\n(viii) Right to property does not pertain to basic structure or framework of the C', onstimtion.\n\n(ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word \"amendment\". The said power can also be not restricted, by reference to natural or human rights. Such rights in order to be enforceable in a court of law must hecome a part of the statute or the Constitution.\n\n(x) Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does not restrict the power of amendment.\n\n(xi) The Constitution (Twentyfourth Amendment) Act doe.~ not suffer from any infirmity and as such ii valid.\n\n(xii) The amendment made in article 31 by the Constitution (Twentyfifth Amendment) Act is valid,\n\n(xiii) The first part of article 31C introduced by the Constitution (Twentvfifth Amendment) Act is valid. The said part is as under. ·\n\n\"31C. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 :\n\nProvided that where such law is made by the Legislature of a State, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.'\n\n(xiv) The second part of article 31C contains the seed of national disintegration and is invalid on the following two grounds :\n\n(1) It gives a carte blanche to the Legislature to make anv law violative of articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a. State Legislature, to amend the Constin1tion in important respects.\n\n(2)\n\nSUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nThe legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in article 31C. The vice of second part of article 31C lies in the fact that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the Legislature precludes a party from showing that th~ la\".I' is not for that object and prevent~ a court from gomg mto the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State\n\nLegislature, of even that limited judicial revjew strikes at the basic structure of the Constitution. The second part of article 31C goes beyond the permissible limit of what oonstitutes amendment under article 368.\n\nThe second part of article 31C can be severed from the remaining part of article 31C and its invalidity would not affect the validity of remaining part. I would, therefore, strike down the following words in article 31C .:\n\n\"and no law containing a declaration that h is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.\"\n\n(xv) The Constitution {Twentyninth Amendment) Act docs not suffer from any infirmity and as such is valid.\n\nThe petition shall now be posted for hearing before the Constitution Bench for disposal in the light of our findings.-\n\nMATHEW, J. In the cases before us, the Constitution of our country, in its most vital parts has to be considered and an opinion expressed which may essentially influence the destiny of the country. It is difficult to approach the question without a deep sense of its importance and -of the awesome responsibility involved in its resolution.\n\nI entertain little doubt that in important cases it is desirable for the future development of the law that there should be plurality of -Opinions even if the conclusion reached is the same. There are dangers in there being only one opinion. \"Then the statements in it have tended to be treated as definitions and it is not the function of a Court to frame definitions. Some latitude should be left for future developments.\n\nThe true rat!o of a decision generally appears more clearly from a comparison of two or more statements in clifferent words which arc intended to supplement each other\"('). In Cassell & Co. Ltd. v. Brome\n\n( 1 ) see Lord Reid in Callie v. Lee, [1970] 3 W.L.R. 1078.\n\nKESAVANAND!> ti. K.ERALA (Mathew, J.) 761\n\nand Another( 1), Lord Chancellor Lord Hailsham said that Lord Devlin's statement of the law 'm Rookes v. Bar1Jard(') has been misunderstood particulary by his critics and that the 'l'icw of the House of Lords has suffered to some extent from the fact that its reasons were given in a single speech and that whatever migh~ be the advantages of a judgment delivered by one voice, the result may be an unduly fundamentalist approach to the actual language employed. In Graves v. New York(\") Frankfurter, J. in his concurring judgme.nt, characterised the expression of individual opinions by the justices as a healthy practice rendered impossible only by the increasing volume of the business of the Court.\n\nAs the arguments were addressed mainly in Writ Petition No. 135/ 1970, I will deal with it now. Jn this writ pttiticl>n the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kcrala Land Reforms Amendment Act, 197li for the reason that some of the provisions thereof violated articlC.) 14, l9(1){f)', 25, 26 and 31 of the Constitution. ·\n\nDuring the pendency of the Writ Petition, te Amending Body under the Constitution passed three constitutional arnendl!; lents, namely, the Constitution 24th, 25th and' 29th Amendment Acts.\n\nThe 24th Amendment made certain changes in article 368 to make it clear that the Parliament, in the exercise of its .constitµent power, has competence to amend by way of addition, varia\\ion or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that article 13(2) would not be a bar to any such amendment. By the 25th Amendment, the word 'amount' was substituted for the word 'compensation' in clause (2) ·.of article\n\n31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay down the orinciples for determining the amount and not the just equivalent in money of the market value of the property acqhlred or requisitioned. The Amendment al.o makes it clear that no such law shall be called in question in any Court on the ground that the whol.e\n\nor anv part of such amounc is to be given otherwise than in cash. The 29th Amendment put the two Acts in question, viz., the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule with a view to make the provisions thereof immune from attack on the ground that the Acts or the provisions thereof violate any of the Fundamental Rights.\n\nThe petitioner challenges the validity of these Amendments.'\n\n(1) [1972] I All E.R. 801, 821.\n\n( 2) [1964] I All E.R. 367.\n\n( 8) 306 u .s. 466.\n\n762 SUPJU!ME COURT JU!PORTS (1973) Supp. S.C.R.\n\nAs the validity of the 25th and the 29th Amendments CllC!ltially depends upon the validity of the 24th Amendment, it is necessary to consider and decide that question first. I, therefore, turn to the circunu. tances which necessitated the Constitutional 24th Amendment A&t.\n\nThe Constitution (First Amendment) Act, 1951, was passed by Parliament on June 18, 1951. Sections 2, 3 and 4 of the Act made amend ments .in some of the articles in Part III of the Constitution. The validity of the Amendment was challenged before this Court in Sankari Prasad v. The Union of India('), and one of the questions which fell for decision was whether, in view of clause 2 of article 13, Parliament had power to amend the Fundamental Rights in such a way as to take away or abridge them. And the argument was that the word \"State\" in clause 2 of article 13 includes Parliament and the word 'law' would take in an amendment of the Constitution and, therefore, Parliament had no power to pass a law amending the Constitution in such a way_ as to' take away or abridge the Fundamental Rights. Patanjali Sastri, J. who delivered the judgment of the Court said that although the word 'law' would ordinarily include constitutional law, there is a distinction between ordinary law made in the exercise of legislative power and constitutional law made in tlie exercise of constituent power and that in the context of clause 2 of article 13, the word 'law' wo1,1ld not include an amendment of the Constitution.\n\nThis decision was followed in Sajjan Singh v. State of, Rajasthan(2 ) There, Gaj endragadkar, C. J ., speaking for himself and two of his collc; agues, substantially agreed with the reasoning of Patanjali Sastri,\n\nJ. in Sankari Prasad v. The Union uf India( 1 ). Hidayatullah and Mudholkar, JJ. expressed cenain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under article 368.\n\nThe question again came up before this Court in Golaknath v.\n\nState of Punjab(\"), hereinafter called 'Golaknath Case' where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the Bench decided that Parliament has no power to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments.\n\n( 1) [1952] S.C.R. 89.\n\n( 2) [1965] I S.C.R. 933.\n\n\nKESAVANANDA o. KERALA (Mathew, J.) 763\n\n'The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who concurred in the judgment pronounced by him) wa1\n\nthat article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only prescribed the\n\nprocedur~· for the same that the substantive power to amend is in articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule, that there is no distfuction between a law amending the Constitution and an ordinary law passed in the exercise of the legislative power of Parliament and that the word 'law' in clause 2 of article 13 would include an amendment of the Constitution.\n\nHidayatullah, J. who wrote a separate judgment concurring: with the conclusion of the leading majority, however, took the view that article 368 conferred the substantive power to amend the Constitution but that Fundamental Rights cannot be amended under the article oo as to take away or abridge them. He said that there is no distinction between constitutional law and ordinary law, that both arc laws that the Constitution limited the powers of the Government but not the sovereignty of the State, that the State. can, in the exercise of its supremacy, put a limit on its supremacy, echoing in effect the view that there could be 'auto-limitation' by a sovereign of his own supreme power and that, by clause 2 of article 13, the State and all its agencies, including the Amending Body, were prohibited from makiing any law, including a law amending the Constitution, in such a way as to take away or abridge the Fundamental Rights.\n\nLet me first take up the question whether article 368 as it stood before the 24th Amendment gave power to Parliament to amend the rights conferred by Part III in such a way as to take away or abridge them.\n\nIn Golaknath Case('), Hidayatullah, J. said that it is difficult to take a narrow view of the word 'amendment' as including only minor changes within the general framework, that by an amendment, new matter may be added, old matter removed or altered, and that except two dozen articles in Part III, all the provisions of the Constitution could be amended. Wanchoo, J. speaking for the leading minority in that case was of the view that the Wllird 'amendment' in its setting in the article was of the widest amplitude and that any provision of the Constitution could be amended. Bachawat, J. was also inclined to give the widest meaning to the word. Ramswami, J. did not specifically advert to the point, but it seems clear from the tenor o£ his judgment that he was also of the same view.\n\n\n764 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nMr. Palkhivala for the petitioner contended that the word 'amendment' in the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitutin, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word 'amendment' in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted.\n\nHe said that the article was silent as regards the sbject matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words \"amend by way of addition, variation or repeal\", that these circumstances should make one pause before ascribing to the word 'amendment' its widest meaning and that, in the context, the word has only a limited meaning.\n\nI do not think that there is any substance in this contention.\n\nIn the Oxford English Dictionary, the meanings of the word 'amend' are given as :\n\n\"to make professed improvements (in a measure before Parliament); formally to alter in detail, though practically it may be to alter its principle so as to thwart it.\"\n\nAccording to \"Standard Dictionary\", Funk and Wagnalls (1894), the meanings of 'amendment' are : '\n\n\"The act of changing a fundamental law, as of political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law by amendment; an amendment of the Constitution\".\n\nThe proviso to article 368 used the expression 'change' and that could indicate that the term 'amend' really means 'change'. The main part of article 368 thus gave power to amend or to make changes in the Constitution. Normally, a change is made with the object of making an improvement; at any rate, that is the professed object with which an amendment is sought to be made. The fact that the object may not be achieved is beside the point. Amendment contains in it an element of euphemism of cooceit in the proposer, an assumption that the proposal is an improvement. Beyond this euphemistic things, amend-·\n\nment as applied to alteration of laws according to dictionaries means 'alter' or 'change'(').\n\n( 1) see McGovney, \"Is the Eighteenth Amendment Void Because of its Contents?\" Columbia Law Review, Vol. 20.\n\nKP.SAVANANDA v. KERALA (Mathew, J.) 765\n\nIn the National, Prohibition Cases('), it was argued before the United States Supreme Coon that an amendment under Article V of the United States Constitution must be confined in its scope to an\n\nalteration or improvement of that which is already contained in the Constitution and canoot change its basic features but this argument was overruled.\n\nIn Rvan's Case(') the Supreme Court of Ireland held by a majority that the word 'amendment' occurring in article 50 of the Irish Constitution was of the widest amplitude. Fitz Gibbon, J. observed after reading the various meanings of the word 'amendment' that the word as it occurred in a Constitution Act must be given its widest meaning.\n\nMurnaghan, J. observed that although complete abolition of the Constitution without any substituted provisions might not properly be called in law an 'amendment', the word is wide enough to allow of the repeal of any number of articles of the Constitution, howver important they might be. Kennedy, C. J. did not specifically deal with the meaning of the word.\n\nIn this context it is relevant to keep in mind the general rules of construction for interpreting a word like 'amendment' occurring in a\n\nconstituent Act like the Constitution of India.\n\nIn In Re the Central Provinces and Berar Sales of MoPJr Spir; t and Lubricants Taxation Act, 1938, etc.(') Sir Maurice Gwyer said that a broad and hberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the\n\ninstrument.\n\nThe basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah(') and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada(°) Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the r.erms of the\n\n( 1 ) Rhode Island v. Palmer 253 U.S. 350.\n\n(2) The State (At the Prosecution of Jeremiah Ryan and Others v. Captain Michael Lennon and Others, (1935) Irish Reports 173.\n\n(') (1939) F.C.R. 18.\n\n(4) (1878) 3 A.C. 889, 904-905.\n\n(•} (1912) A.C. 572 at 583. 49-36 S. C. !ndla/73\n\n766 SUPREMl! COURT REPORTS [1973] Supp. S.CJI.\n\ninstruml:nt by which, affirmatively, the power was created, and by which, negatively, it is restricted .and that if what has been done is within the general scope of the aflirmativc words which give the power, ai; id if it violates no express condition af restriction by which that power is limited, it is not for any court af justice to inquire further, .or to enlarge constructively those conditions and restrictions. In other words, in interpreting a Constitution, as Lord Lorebum said in the latter case, if the text is cxpficit, the text is conclusive alike in what it\n\n.directs and what it prohibits.\n\n I should think that in such matters everything turns upon the spirit in which a judge approaches the question before him. The words must construe are, generally speaking, mere vessels in which he can pour nearly anything he will. \"Men .do not gather figs of thistles, nor supply institutions from judges whose outlook is limited . by parish -0r . class. They must be aware that there arc before them more than verbal problems; more than final solutions cast in generalisations in every society which make it an organism; which demand new schema Ill -Of adaptation; which will disrupt it, if rigidly confined\" (1). A!I this\n\nis why President Roosevelt. said that the judges of the Supreme Oxirt must be not only great justices, but they inust be great constiuctive :statesmen(').\n\nTherefore, although the word 'amendment' has a variety of meanings, we have to ascrlbe to it in the article a meaning which is app~\n\npriatc to the function to be played by it in an instrument apparently intended to endure for ages to come and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of certain presupposition. The Constitution has no doubt its roots in the past but was designed primarily for the unknown\n\nfutur~ The reach of this consideration was indicated by Justice Holmes in langilage that remains fresh no matter how often repeated : (\")\n\n\" .... when we arc dealing with words that also arc a constituent act, like the Constitution of the. United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begettcrs ...• \"\n\n. (') See the passage of Learned Hand quoted in \"Cases and Materiais on the Legal Process\" by F. K. H. Maher and others, 2nd ed., p. 498. (') Sec the passage quoted by Frederic R. Coudcrt in 13 Yale Law Journal, 1' 338. . (•) Missouri v. Holland, 252 U.S. 416, 433.\n\nKESAVANANDA ti. KERALA (Mathew, J.) 767\n\nEvery well drawn Constitution wiJI therefore provide for its own :amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals('). That the constitution is a framework of sreat governmental power tO be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must domiinate in any consideration of the width of the amending power.\n\nNo existing constitution has reached its final form and shape and become, as it were. a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so _as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable sati.iaction<').\n\nAs Wilson said, a living constitution must be Darwinian in structure and practice('). The constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. \"A constitution is an experiment as all life is an experiment\"('). If the experiment fails, there must be provision for making another. Jefferson said that there is nothing sanctimonious about a constitution and that nobody should regard it as the ark of the covenant, too sacred to be touched. Nor need we ascribe to men 9f preceding age, a wisdom more than human and\n\nmppose that what they did should be beyond amendment A constitution is not end in itself, rather a means for ordering the li£e of a nation. The generation of yesterday might not know the needs of today, and, 'if yesterday is not to paralyse today', it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr. Ambedkar(\"). If there is one sure conclusion which I can draw from this speech of Dr. Ambedkar, it is this : He could not have conceived of any limitation upon the amending power. How could he have said that what Jefferson said is. \"not merely true, but absolutely true\", unless he subcribed to the view of Jefferson that \"each generation as a distinct nation with a right, by the will of' the majority to bind themselves hut none to bind the succeeding generations more than the inhabitants of another country'', and its corrollary which follows as 'the night the day' that each generation .should have the power to determine the structure of the constitution under which they live. And how could this be done unless the power of\n\n( 1) Sec Carl J, Friedrich, \"Constitutional Government and Democracy\", p. 135,' '\n\n( 2) Sec Fclik Frankfurter,. \"0£ Law and Men\", p. 35:\n\n( 8) Sec Constitutional Government in the United States, p. 25. (') Sec Justice Holmes in Abrams v. United States, 250 U.S. 616.\n\n(\") Constitution, Assembly Debates, Vol. X, pp. 296-297.\n\n768 SUPREME COURT Rl!PORTS [1973] Supp. s.c.R.\n\namendment is plenary, for it would be absurd to think that Dr. Ambedkar contemplated a revolution in every generation for changing the constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit power of amendment of the future generation by exercising its power to amend the amending power. Mr. Palkhivala said that if the pmver of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the constitution from the future generations and foreclose them from ever exercising it. l think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation> or the argument of some political thinkiers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.\n\nSeeing, therefore, that it is a \"constitution that we are expounding\" and that the constitution-makers had before them several constitutions where the word 'amendment' or 'alteration' is used to denote plenary power to change the fundamentals of the constitution, I cannot approach the construction of the word 'amendment' in article 368 in niggardly or petty fogging spirit and give it a narrow meaning; but\n\n\"being a familiar expression, it was used in its familiar legal sense\"(').\n\nHowever, Mr. Palkhivala contended that there are provisions in the Constifution which would militate against giving the word 'aniendment' a . wide meaning in the article and he referred to the wording in Schedule V, para 7(1) and Schedule VI, para 21(1). These paragraphs use along with the wor~ 'amend', the expression \"by way of addition, variation or repeal\". Counsel said that these words were chosen to indicate the plenitude of the power of amendment and that this is in sharp contrast with the wording of article 368 where only the word 'amendment' was used. But Schedule V, para 7(2) and Schedule VI, para 21(2) themselves indicate that, but for these provisions, a11 amendment of the schedule by way of addiition, variation or repeal would be an amendment of the Constitution under article 368. In other words, the sub-paragraphs show clearly that the expression \"amend by way of addition, variation or repeal\" in para 7(1) of Schedule V and para 21 (1) of Schedule VI has the same content as the word 'amendment' in article 368.\n\n(') Sec Justice Holmes in Hmry v: Uniud Sl4U1, 251 U.S. 293, 295.\n\nKESAVANANDA v. KEllALA (Mathew, J.) 769\n\nReliance was also placed by counsel on s. 291 of the Government of India Act, 1935, as amended by the Third Amendment Act 1949, which provided that \"such amendments as he considers necessary whether by way of addition, modification or repeal in the Act\". No inference can be drawn from the use of these words as to the meaning to be assigned to the word 'amendment' in article 368 or its width\n\n~ it is well known that draftsmen use different words to indicate the same idea for the purpose of elegance or what is called \"the graces of style\" or their wish to avoid the same word, or sometimes by the <ircumstance that the Act has been compiled from different sources and sometimes by alteration and addition from various hands which the Acts undergo in their progress in Parliament(').\n\nIt was submitted that if the word 'amendment' is given an unlimited amplitude, the entire Constitutim could be abrogated or repealed and that certainly could not have been the interltion of\n\nthe makers of the Constitution. The question whether the power of amendment contained in article 368 as it stood before the amendment went to the extent of completely abrogating the Constitution and substituting it by an entirely new one in its place is not beyond doubt. I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and w delete any provision.\n\nBut when the article said that, on the bill for the amendment otf. the Constitution receiving the President's assent, \"the Constitution shall. stand amended\", it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical .change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would not be an .abrogation or repeal of the Constitution. However radical. the change might be, after the amendment, there must exist a systlem by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary to the terms of article 368 because it would violate the constitutional provision that \"the Constitution shall stand amended''.\n\nEven if the word 'amendment' in article 368 as it stood originally was wide enough to empower the amending body to amend any of the provisions of the Constitution, it was submitted by the petitioner, that\n\n( 1 ) See Maxwell on the Interpretation of Statutes, 12th ed., p. 286.\n\n770 SUPREME COURT R'l!PORTs [1973] Supp. s.c.R.\n\narticle 13(2) was a bar to the a1nendment of the Fundamental Right$ by Parliament in such a way as w take away or abridge them :\n\n\"13(2) The State shall not make any iaw which takes away or abridges the rights conferred l; y this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void\".\n\nIn this context it is necessary to understand the basic distinction between a flexible and a rigid constitution to appreciate the argument that an amendment of the Constitution is 'law' within the purview -0f the subarticle.\n\nThe outstanding characteri.ltic of a fleible constitution like the British Constitution as contrasted with a rrgi.d one like ours is the unlimited authority of the Parliament to which it applies, to pass any law without any restriction. In rigid constitution, there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of the ordinary legislature and that is the law of the constitution which is of superior obligation unknown to a flexible constitution. It does not follow that because a constitution is written, it is therefore rigid. There can be a written constitution which is flexible. ''The sole criterion of a rigid constitution is whether the constituent assembly which drew up the constitut; ion left any special\n\ndirection as to how it was to be changed\"('). If a special procedure is prescribed by the constitution for amending it, different from the procedure for passing ordinary law, then the constitution is rigid.\n\nIt is said that articles 4 and 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule show that amendment of the Constitution can be made by the ordinary law-making procedure.\n\nThes\" provisions themselves show that the amendment so effected shall not be deemed to be amendment for the purpose of article 368. This is because the procedure prescribed by them is different from the pr<>- cedure laid down in article 368.\n\nMr. Palkhivala did not contend that the power to amend is located in articles 245, 246 and 248 read with entry '17 of List I of the Seventh\n\nSchedule. He only submitted that it is immaterial whether the power is located in articles 245, 246 and 248 read with enry '17 of List I of the Seventh Schedule or in article 368. I do not think that there could be any doubt that article 368 as it stood before the 24th Amendment\n\n( 1 ) See generally C. F. Strong, Modern Political Constitutions (1963). PP• 1;2-153. .\n\nKESAVANANDA ti. KERALA (Mathew, J.)\n\ncontained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a constituent power.\n\n The vital distinction between constitutional law and ordinary law in a rigid constitution lies in the criterion of the validity. of the ordinary law. An ordinary law, .when questioned, must be justified by reference to the higher law embodied in the constitution;· but in the case of a constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the constitution) is not created in a legal procedure by: a law-creating organ. It is n<;>t-as a p:isitive legal norm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is pre supposed to be valid because,. without this presupposition, no human act could be interpreted legal, especially as a norm-creating act. In other words, the validity of the constitution generally lies in the social fact of its being accepted by the community and for the reason that its norms have become efficacious. Its validity is meta-legal(').\n\nWhether. the observations of Kelsen would apply t~ our Constitu tion would depend upon the answer to the question whether the legaT source of the Constitution should be traced to the Indian Independence Act, 1947, or, whether the Constitution was the result of the exercise of the revolutionary constituent power of the people. . .\n\nIt does not follow from hat has been said that there are no basic rules in a flexible constitution like that of Great Britain. The principle of the English Constitution, namely, that the Court will eruorce Acts of Parliament is not derived from any principle of common law, but is itself an ultimate principle of English Constitutional La:v(').\n\nOnce it is realised that a constitution differs from law in that a constitution is always valid whereas a law is valid only. if it is in conformity with the constitution .and that the body which makes the constitu\\ion is a sovereign body and . generally needs na legal authority whereas a body . which makes . the ordinary law is not sovereign, but derives its power from the constitution, an amendment to the constitution has the same validity as the constitution itself, although the question whether the amendment has been made in the manner and form and within. the power conferred by the constitution is always justiciable. Just as an ordinary law derives its validity from . .\n\n:\"' ( 1) See Haridelsen, \"General Theory of Law and State\", p. 116. :\n\n( 2) See H.W.R. Wade, ''The Basis of Legal Sovereignty\", {1955) (Cam bridge Law, fournal, 172.\n\n772 SUPREME. COUllT REPORTS [1973) Supp. S, CJI,\n\nits conformity with the constitution, so also, an amendment of the constitution derives its validity from the constitution. An amendment of the constitution can be ultra vires just as an ordinary law can be.\n\nWhen a legislative body is also the sovereign constitution-making body, naturally the distinction between constitution and an ordinary law becomes conceptual and, i:n fact, disappears as that body has both the constituent power of the sovereign as wcll as legislative power. The British Constitution under which the distinction between the sovereign and the ordinary legislature is eclipsed due to the theory of the sovcreo . ignty of the British Parliament, is certainly not the ideal constitution to choose for appreciating the distinction between constitutional law and ordinary law under our polity. Sir Ivor Jennings said that thcte is no clear distinction between consti11Utional law and ordinary law in England and that the only fundamental law there is that parliament is suprcmc(1). Strictly speaking, therefore, there is no constitutional law at all in Britaili; there is only arbitrary power of parliament.\n\nIt is said that The BiJl of Rights (1689), Act of Settlement (1701), etc., partak, ie the character of constitutional law and there is no reason to exclude that type of law from the ambit of the word 'law' in clause\n\n(2) of article 13.\n\nIn a llcxible constitution like the British Constitution the only dividing line between constitutional law and ordinary law is that constitutional law deals with a particular subject mattr. namely, the distribution of the sovereign power among the various organs of the\n\nState and other allied matters; out in India, as I have said, that distribution may not be quite relevant. For our purpose, the only relevant factor to be looked into is whether a provision is embodied in the Constitution of India. Any provision, whether it relates strictly to the distn'bution of sovereign power among the various organs of the State\n\nor not, if it is validly embodied in the documen~ known as \"The Constitution of India\", would be a law. relating to the constitution. In other words, irrespective of the subject matter, the moment a provision becomes validly embodied in the constitution, it acquires a validity of its own which is beyond challenge and the question whether it relates to constitutional law with reference to the subject matter is wholly irrelevant. \"Where a written constitution exists, it is approximately true to say that the constitution itself provides such a supreme norm .... even so, the constitufion may not be altogether identified with. ihe supreme norm; for there may. be rules for its interpretation which judges accept as binding but which arc not prescribed in the constitution. Effectively, therefore, it is the traditional judicial interpretation\n\n( 1 ) See Jennings, \"The Law and the Constitution\" (1933). p. 614.\n\nUSAVANANDA \"· KE!IALA (Mathew, J.) 773\n\nof the constitution that is the supreme norm\"('). For, .as B!shop Hoadley said in his sermon \"Whoever hath absolute authority to mterpret any written or spoken laws, it is he who is the law-giver to all int!cnts and purposes and not the person who first <Wrote or spcke them\"(').\n\nAs I said, for the purpcse of article 13(?-), e ny rlevnt question is whether an amendment of the Consutuuon is law. Smee both an amendment of the Constitution and an ordinary law derive their validity from the Constitution, the criterion that an ordinary aw can be tested for its validity on the touchstone of the Consutuuon must equally apply to an amendment of the Constitutio~. Therefore, by and large, the only distinction between a law amendmg the Constitution and an ordinary law in :i rigid constitution is that an amendment of the constitution has always to be made in thr. manner and form specially prescribed by the constitution.\n\nMr. Pa}khivala contended that when article 13(1) and 372 speak of \"laws in force\" in the territory of India immediately before the commence1nent of the Constitution, the expression would take in also all constitutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the\n\nword 'law1 in clause (2) of article 13 must also include constimtional law. Assuming that the expression \"laws in force\" in article 13(1) and 372 is wide enough to include constitutional law, the question is, what is the type of constitutional law that would be included? So far as British India was concerned, article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I a1n not sure whether there were any Orders passed under the Government of India Act which could be called constitutional law.\n\nThat ap; irt, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were constimtional laws in the sense of their being the supreme law of the land like the Constitution of India, for, both of them could have been repealed by the\n\nleg~! sovee!gn, namely, the British Parliament And the reason why tl1eir provismns could not h.we been challenged in a Court of Law Was not tt they wer~ the .supreme law of the land but because they were !~':'\" in c?nformtty with the supreme law, namely, the will of the Bnush Parliament. As regards the native States, the fact that the Courts therein could not have challenged the validity of the provisions of a constirution promulgated by an absolute monarch would\n\n( 1 ) S, CC Snley. I. Bena, \"The Use of Sovereignty\", in the book \"In Defence of Sovereignty , edited by W. J. Stankiewicz, 67, 70.\n\n(2) See Gry, Nature and Sources of the Law 102 125 172 (2nd ed) (1921), ' • ' .\n\n774 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\nnot show that those provisions could be equated with the provmons of the Constitution of India. A constitution established by an abso. lute monarch will be enforced bv the Coun of the State, not because the constitution is the supreme law of the State but because it is a law in conformity with the supreme law, namely, the supreme will. of the monarch which alone is the supreme law, unless, as Alf Ros~ said, the constitution was granted by the monarch with the intention that it should not be revocable('). Therefore, those constitutional laws cannot be characterised as constitutional laws in the sense in which we speak of the Constitution of India, for, such of the provisions of those constitutions in the native States existing before th<!' commencement of the Constitution of. India which contravened the provisions of Part III became void (article 13 (I)) and others which mntinued, continued subject to the provlsions of the C'.onstitution (article 372). In other words, for the purpose of article 13(2), what\n\ni~ relevant is whether the word 'law' there, is comprehensive enough to take in constitutional law in the sense of a law embodied in a constitution which is the supreme law of the land and from which all other laws llerive their validity. The constitutional laws in force in the territory of India immediately before the commencement of the Constitution did not have the status of constitutional law in the sense of a law which is su1Jreme. \\Vere it otherwise, none of them would have been void under atice 13(1) and none of them subject to the provisions of the Com.t1tut1on under article 372.\n\n, It seems to me to he clear that the word 'law' in article 13(2), in the context, could only mean an ordinary law .. When article 13\n\n(2) said that the State shall not make any 'law' tbe meaning of the expression 'law' has to be gathered from the context. Though, analytically, it might be possible to say that the word 'law' would include an amendment of the constitution also, from the context it would be clear that it only meant ordinary law. A word by itself is not crystal clear. It is tbe context that gives it the colour. In the setting of article 13 (2), what was prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of Part XI or ariy other provisions enabling it. le;> pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights by ordinary legislation.\n\nIf the power to amend was to be found within article 368 and not under article 248 read with entrv 'fl of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend-\n\n(') Alf Ros.•, \"On Law and Justice\", p. 82.\n\nKESAVANANDA fl. KERALA (Mathew, J.) 775\n\nment of the Constitution is distinct from legislative power. The leading majority in the Golaknath Case(1) took pains to locate the power to amend in arl1icle 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of article 13(2). But if .the pow•!r to amend the Constitution is a legislative power and is located in the residuary entry (97 of List I of the Seventh Schedule), then any law amending the Constitution by vir tue of that power, can be passed only \"subject to the provisions of the Constitution\" as mentioned in article 245. A power of amendment by ordinary law \"subject to the provisions of the Constitution\" seems to me a logical contradiction; for, how can you amend the provisions of the Constitution by an ordinary law which can be passed only subject to the provisions of the Constitution?\n\nIt would be strange that when a whole chapter has been dvoted to the \"Amendment of the Constitution\" and when the question of amendment loomed large in the mind of the Constitution-makers that, even if the power to amend the Constitutio.n was thoght t? be legislative in character, it was not put as a specific. entry in . Lis~ I but relegated to the residuary entry ! And, considenng the legislative history of the residuary entry, it is impossible to locate .the power of amendment in that entry. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entrv because, in respect of the matters covered by the proviso to articic 368, Parliament has no exclusive power to amend the Constitution.\n\nThat apart, the power to amend a rigid constitution, not being an ordinary legislative power but a constituent one, it would be strange that the Constitution-makers put it sub-ri!entio in the residuary legislative entry.\n\nArticle 368 was clear that when the procedure prescribed by the article was followed, what resulted was an amendment of the Constitution. The article prewih.d a procedure different from the legislative procedure prescribed in articles 107 to Ill read with article !CX; Article 100 runs as follow; : \"Save as otherwise provided ire this Cor,-\n\nstitution a!! questions at any sitting of either House or joint sittin<' of the Houses shall be determined by a majority of vots of the members present and voting .... \". Certain types of amendment, as is clear from article 368, also require to be ratified. The first part of article 368 required that a hill must be passed in each House (!) by\n\n\n776 SUPREME COU!lT llEPOllTS [1973] Supp. s.c.11.\n\na majority of the total membership of that House and (2) by a maio- rity of not less than two-thirds of the members of that House present :and voting. These provisions rule out a joint sitting Qf both the Houses under article 108 to resolve disagreement between the two Houses. Again, the majority required to pass a bill in each ouse is not a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. As regards matters covered by the proviso, there is a radical departure from the legislatiive procedure prescribed for Parliament by articles 107 to lll. Whereas in ordinary legislative matters Parliac\n\nment's power to enact laws is not dependent on the State legislan1res, in matters covered by the proviso to article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless the bill has been ratified by resolutions to that effect passed by the legislatures of not less than half the number of States.\n\nSubba Rao, C. J., in his judgment in Golaknath case(') relied on Mccawley v. The King(') and The Bribery Commissioner v. Pedrick Ranasinghe(8 ) to show that the power to amend the Constitu- tion was a legislative p6wer. In M cCawley'; Case, Lord Birkenhead said that it is of the utmost importance to notice that where the Constitution is uncontrolled th'e consequences of its freedom admit of. no qualification whatever and that it would be an elementary common place that in the eye of the law the legislative document or; documents which defined it occupied precisely the same position as the Dog Act or any other Act, however humble its subject matter and that the so called constitutional law (I call them so called because it is constitutional law only with reference to the subject matter, not with reference to its superior character) will stand amended by the Dog Act, if it is in any way repugnant to the legislative document or documents.\n\n_ In Ranasinghe's case, the question for determination before the Privy Council was whether the statutory provU; ion for the appointment of members of the panel of the Bribery Tribunal, otherwise than by the Judicial Service Commission, violated s. 55 of the Constitution Order and, if so, whether that provision was void. Sections 18 and 29 of the Order provide as follows : \"S. 18: Save as otherwise provided in sub-section (4) of s. 29. any question . proposed• for decision by either Chamber shall be\n\n( 1) (1967) 2 S.C.R. 762.\n\n( 2) (1920) A.C. 691.\n\n( 8) (1964) 2 W.L.R. 1301; (1965) A.C. 172.\n\nKESAVANANDA 11. KERALA (Mathew, J.) 777\n\ndetermined by a majority of votes of the Senators or Members,\n\n1 as the case may be, present and voting. The President or Spca ker or other person presiding shall .not vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes.''\n\n\"S. 29 : (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No Sllch law shall-( a) prohibit or restrict the free exercise of any religion; or (b) II\\ak• persons of any community or religion liable to disabilities . or restrictions to which persons of other communities or religion$ arc not made liable; or ( ~) confer on persons of any comm1mity or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the constitution of any religious body except with the consent of the governing authority of that body: Provided that, in any case where a religious body is incorporated by law, no_ such alteration shall he made except at the request of the governing authority of that body. (3) Any law made in contravention of sub-sectio11\n\n(2) of this section shall, to the extent of such .contravention, be void. ( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order,\n\nor of any other Order of His .Majesty in Council in its application to the Island : Provided that 110 Jlill for the amendment or repeal of any of the provisio11S of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes east in favour thereof in the House of Representatives amounted to not less than\n\ntwe>-thirds of the whole number of members of the House (including those not present). Every certificate of the Speaker under this sub-section shaU be conclusive for all purpose and shall not be questioned in any court of law.\"\n\nThe appellant . contended that whereas s. 29(3) expressly provided that a law which conoravened s. 29(2) was void, there was no such provision for the violation of s. 29( 4) which was merely procedural and that as Ceylon was a sovereign State, and had the power to amend the Constitution, any law passed by the legislature was valid even -if i~ contravened the Constitution, and McCawley's case was cited\n\nas supporting this contention. But the Privy Council said that the law impugned in McCawley's ease was not required to be passed bv 3\n\nspecil procedure, but in the present case the law which contravener! s. 55 could only be pissed .QS zequircd by s. 29( 4) for the amendment of :the .constitution and it W:M not S& passed, it was rtltra trires and v01d.\n\n778 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nIt is not possible to draw the inference which Subba Rao, C. I. drew from these two cases. There is a distinction between a general power to legislate and a power to legislate by special legislative pr<>- cedure and the results of the exercise nf the two powers are different.\n\nIn McCawley's case it was observed that if a legislature has full power to make a law which conflicted with the Constitution, the law was valid Siince it must be treated as a pro-tanto amendment of the constitution which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislativ~ process to pass upon the topic dealt with, and an ordinary law in conflict with the constitution must, in such a case be treated as an implied alteration of the constitution. In Ranasinghe's Case, the Privy Council said that where even .an express power of a legrslature to alter can be exercised only by laws which comply with the \"Special legislative procedure laid down in the constitution\", such a legislature has no general poVl'.er to legislate for the amendment of the constitiution, and a law pissed in the exercise of such general power is void if the law contravenes the constitution. And, where a legi.'1ative power is \"subject to the provisions of the constitution\", any cxer\n\ncise of it in contravention of such provisions renders it invalid and ultra-vires : As already stated, in a controlled constitution which confers general legislative power subject to the provisions of the consti tution and provides a special procedure for amendment of the constitution, law passed in the exercise of the general legislative power ancl conflicting with the constitution must be void because the constitution can be amended only by special procedure. In a constitution which confers general legislative power including a power to amend the constitution, the constitution is uncontrolled and is not a fund:imental document by which the laws made under it are to be tested, for, any law .contrary to the constitution impliedly alters it. The result is that no law passed under an uncontrolled comtitution is , ultra vires(').\n\nThe ubstance of the decision in Ranasilighe's Case is that thouith Ceylon Parliament has plenary power of ordinary legislation, in. the exercise of its constitution power it was subject to the special procedure laid down in s. 29( 4). The decision, therefore, makes a clear distinction between legislative and constituent powers.\n\nIt was contended that tl1e amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the .1eading majority in Golaknath Case('), locating the power .of\n\namendment in the residuary entry.\n\n(') See Seervai \"Constitutional Law\", Vol. 2, pp. 1102-1103; al\"' Dr. Wynes \"''Legislative, Executive and Judicial Powers in Awtralia\", footnote at p. 508.\n\n\nKESAVANANDA v. KERALA (Mathew, J.) 779\n\nSection 91(1) of the British North America Act provides for a restricted power of amendment of the constitution. This power, undoubtedly, is a legislative power and the constitution, therefore, to \\hat extent is an uncontrolled or a flexible one. There is no analogy between the power of amendment in Canada which is legislative in character and the power of amendment under article 368 which is a constituent power.\n\nAs I indicated, even if there was an entry for amending the Constitution in List I of the Seventh Schedule, that would not have enabled the Parliament to make any amendment of the Constitution because the opening words of article 245 \"subject to the provisions of this Constitution\" would have presented an insuper able bar to amend any provision of the Constitution by the exercise of legislative power under the Constitution. Under a controlled Con stitution like ours, the power to amend cannot be a legislative power; it can only be a constituent power. Were it otherwise, the Constitution would cease to be a controlled one.\n\nIt was submitted that if Fundamental Rights were intended to be amended by the Constitution-makers in such a way as to abridge or take them away, considering the paramount importance of. these rights, the procedure required by the proviso to article 368 would, at any rate, have been made mandatory and that not being so, the intention of the Constitution-makers was that the Fundamental Rights should not be amended in snch a way as to abridge or take them away. This argument overlooks the purpose of the proviso.\n\nThe proviso was maiply intended to safeguard the rights and powers of the States in their juristic character as persons in a federation. The purpose of the proviso was that the rights, powers and privileges of the States or their status as States should not be taken away or impaired without their participation to some extent in the amending process. Fundamental Rights are rights of 'individuals or minorities, and they are represented in Parliament. The States, as States, arc not particularly affected by amendment of Fundamental Rights. As Wheare said, it is essential iln a federal government that if there be a power of amending the constitution, that power, so far at least :u\n\nconcerns those provisions of the. Constitution which regulate the status and powers of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments('). ·\n\nThe Constitution (First Amendment) Act amended the Fundamental Rights under articles 15 and 19 in such a way as to abridge\n\n( 1) Whcare, \"Federal Government\", 4th ed., p. 55.\n\n780 SUPREME COURT REPORTS [1973} Supp. s.c.R.\n\nthem. The speech of Pandit Jawaharlal Nehru in moving the amend ment and those of others who were responsible for drafting the Con stitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as t.o abridge them. Strong opponents of the amendments like S. P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amendable in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the constitution or a statute('). •\n\nMr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constlituent Assembly to show that Fundamental Rights could not .be taken away or abridged by . .,,, an amendment of the Constitution.\n\nThe question whether spccehes made in the Constituent Assem-. bly are admissible to ascertain the purpose behind a provision of the Constitution is not free from doubt. In A. K. Gopalan '\" The State of Madras(\"), Kania, C. J. said that while it ia not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the same case, Patanja!n Sastri, J. said that in construing the provisions of an Act, speeches made in the course of the debates on a bill could at best be indicative .of the subiective intent of the speaker but they could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Mukherjea, J. said that in construing a provision in the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.\n\nIn State of T1'avancore-Cochin and Others v. 1'he Bombay Co. Ltd., etc.('), Patanjali Sastri, C.J. delivering the judgment o(the Court said that speeches made by the members of the Constituent Assem bly in the course of the debates on the draft Constitution cannot be used as aids for ii:terpreting the;. Constitution. In Golaknath Case(') Subba Rao, C. J. referred to the speech of Pandit Jawaharlal Nehru made on April 30, 1947, in proposing the adoption of the interim report on Fundamental Rights and that of Dr. Ambedkar made on September 18, 1949, on the amendment proposed by Mr. Karnath to\n\n( 1) See McPherson v. Blacker, 146 U.S.!., 27.\n\n( 2) (1950} S.C.R. 88.\n\n(•) (1952) S.C.R. 1112.\n\n\nKEUVANANJl!t ti. UllALA (MatheUJ,).:)\n\narticle S04 of the draft Constitntion: (present article 368) and ob.\n\nserved that the ipeeches were referred. to, not for. interpreting the provisions of article 368 but to show. the transcendental character of Fundamental Rights. I am not dear whet)ler the speech of Dr.\n\nAmbcdkar throws any light on the transcendental character of Fundamental Rights. That . speech, if it . is useful for any purpose, i1 useful only to show that Fundamental Rip; hts cannot be amended. In the Prit1y Purse Case(1) Shah, J. rcferied .to the peech of Sardar Vallabhbhai Patel for understanding the purpose of article 291 of the Constirution. Speeches made by members of the .Constituent Assembly were quot.d in profusion 'in the Union of India v. Harbhaian Singh Dhillon(2 } both in the majority as well as in the minority judgments. In the majority ]udgffient it was said that they .wcr~ glad to find that the construction placed by them on the scope of entry 91 in the draft Constitution corresponding to the present entry rJ of List I of the Seventh Schedule agreed with the view expressed in the peeches referred to by thm. The minority. referred to the speeches .made by various members to show . that their construction was the correct one. Cooley said : ''When a question of Federal Con stitutional law is involved, the purP<15c of the C'.onstitution, and the object to be accomplished by any particular grant of power, arc often most important guides i11 reaching the real intent; and the debates in the Constitutional Convention, the discussions in tho Federalist, and . in the conventions of t11e States, arc often. referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import\"('). Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to i.i)form itself concerning the social cont of the problems involved from all reliable sources and that it is difficult to see in principle why\n\nBritish courts should exclude rigidly all rrcourse to the debates attending .the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equanimity cases in which iuclges may pronounce cr-cathcdra that so and so clearly could not have been in the legislators' minds when the parliamentary debates. ready at hand might show that that was precisely what was in their iri.inds (').\n\nLogically, there is n.;- reason why we should exclude altogethi:r the speeches made in the Constituent Assembly by individual mem-\n\n(' )·.µaJhav Rao v. Union of India, [197l], 3 S.C.R 983. (•))1971 J 2 s.~.c. 779. ·.. . . .. . (\") See Cooley on Constitutional Law, 4th ed. (1931), pp. 195-196. ·\n\n(')\n\n0 sJ Juli.is Stone, ''LCgal System and Lawyer's Reasoning\",. p. 351;, also H.C.L. Merillat, ''The . Sound 'Proof. Room : , A Matter of lntcrpretanon . '(1967) 9, Jiiutrial of the 'Indian Law InstlllitC, p. 521.\n\n S0-36 S. C. India/73\n\n782 SUPREME COUJ.T REl'ORTS (1973) Supp. S.C.ll.\n\nbers if they throw any light which will resolve latent ambiguity in a provision of the Constitution. Chief Justice Marshall struck at the core of the matter when he said:(')\n\n\"Where the mind labours to <liscover the design of the legislature, it seizes everything from which aid can be derived.\"\n\nIf the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter of theory, . be excluded. The rigidity of English Courts in interpreting language merelyby reading it, disregards the fact that enactments are, as it were, organisms which exist in their environment. It is, of course, difficult to say that judges who profess tb exclude from their consideration all extrinsic sources are confined psychologically as they purpon to be legally. A judge who deems himself limited to reading the provisions of the Constitution . without an awareness of the history of their adoption in it woul<l be taking a mechanical view of the task of c0nsiruction(2).\n\nIf the <lebates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including iti derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is diflicult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history onlv tends to reveal the legislative purpose in enacting the provis.ion and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said : \"The nearer men can get oo knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great diffi, culties\"( 8). _That awa:ness must make one ocrutinize the solemnity of the occasion on whicl1 the speech was made .• the purpose for which it was made, the preparation and care with which it was made• and the reputation and scholarship of' the person who made i, t. A painstaking detailed speech bearing directly on the immediate question\n\n( 1 ) Uni\"d States v. Fisher, 2 Cranch 358, 386 U.S. 1805.\n\n( 2) See Frankfurter \"On reading the statute\" in \"Of Law and Men\", p. 64.\n\n( 3 ) See \"The Inrention of the Framers\": A No•t'. on the Constitutional Inter-· prcra.tion, American Political Science Review, V:il. ~'2.JX, June, 1955.\n\nXESAVANANDA v. KEMLA (Mathew, J,) 783\n\nmight be given the weight of an \"encyclical\" and would . 5ettle the matter one wav or the other; but a loose statement made 1mprompt11 in the heat of\n\n0 the debate will not be given a decisive role in decision making process. I should have thought that if there was a definitive pronouncement from a person like Dr. Ambedkar in the Constituent Assembly, that woulrl have thrown considerable light upon the matter in controversy. In the speech relied on by counsel Dr. Ambedkar is reported to have said(') :\n\n\"We divide the articles of the Constiitution under three categoric~. The first catgory is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in Part III or art 304, all that is necessary for them is to have two-thirds majority. Then they can amend it.\n\n\"Mr. President : Of Members present.\n\n\"Yes. Now we have no doubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double It requires two-thirds majority plus ratification. by the States\".\n\nThere is scope for' doubt whether the speech has been correctly reported. That apart, from the speech as reported, it would seem that according to Dr. Ambedkar, an amendment of the articles mentioned in Part III and article 368 requires two-thirds majority plus ratification by the Stalles. He seems to have assumed that the provisions of Part III would also fall within the proviso to article 368 but he never said that Part III was not amendable. That it was his view that all the articles could be amended is clear from his other speeches in the Constituent Assembly. He said on November 4, 1948(2) :\n\n\". . . . It is only for amendments of specific matters-and they: are only few, that the ratification of the State legislatures is requtred. All other articles of the Constitu.tion are left to be amended by Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of the members of each .House present and voting and a majority of the total membership of each House ... \"\n\n(1) Constituent Assembly Debates, Vol. IX, p. 1661.\n\n(2) Constituent Assembly Debates, Vol. Vil, p. 43.\n\n784 .\n\nSUPUME.-oouJ.T B.EPQR~ [1973) Su9p, s.c.ll.\n\n Dr; .Ainbedar,· speaking .on draft article 25 (present rticlc 32). , on , December ?. 1948, stressed its importance in th~ following words( ) :\n\n\"If. I was asked to name any particular article in this Con'. stitution as the most important-an article. without which. this Constitution would be. a nullity-I could not refer to. ari.Y other article except, .this one, It is. the very soul of the Const1tuuon .and the very heart of it and I am glad that the House has realized its importance\".\n\nBut having said he proceeded : \": .. . The Cotitution has invested the Supreme Court with these rights and. these writs could not be taken away unless and until the . Constitution itself is amended by means left open to the Legislat11re. (emphasis added).\n\nOn November 25, 1949, Dr. Ambedkar refuted the suggestion that FWldamental Rights should be absolute and unalterable. He said after referring to the view of tlic Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constimtion by denying to the people the . right to amend the Constitution as in Canada or by making . the amendment of the Coostitution subject to the fulfilment of extraordinary terms and conditions as in America or Allstralia but has provided a most facile procedure for amending the Constitution(').\n\nIt is difficult to understand why the Constitution-makers did riot specifically provide for an exception in article 368 if they wanted that the Fundamental Rights should not he amcndd in such a way as to take away or abridge them. Article 304 of the raft Constimtion cor~ responds to article 368 of the Constitution. Article 305 of the draft Constitution provided :\n\n\"Article 305 : Reservation of seats for minorities to remain in force\n\nfor only ten years unless continued in operation by amendment of the\n\nConstitutiott, ·\n\n\"Notwithstanding anything contained in article 304 of the Constimtion, the . provisions of this Constitution relating to the .CServation of scats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Chri<tians either in Parliament or in the legislature of any State for the time being specified in Part I of the First Schedule shall not he amended during a period\n\n(1) ConstilUent Aseembly DCbatcs, Vol. VII, p. 953. {2) Constituent Aucmbly Debates, Vol. XI, pp. 975-976.\n\nKESAVANANDA. fl. KERALA (Mathew, J.) 785\n\nof ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution.\"\n\nIf it had been the intention of the Drafting Committee to exclude Fundamental Rights from the purview of the constituent power in tended to be conferred by article 304, following the analogy of article 305, it could have made an appropriate provision in respect of the said rights. . . .\n\nIn A. K .. G.opalan v .. State of Mad~('}, Kania, C. J. sai~ that article 13 was inserted by way of abundant caution, that even if th~ article were, absent, the result would have been the same. Mr. Palklil- .wala submitted that the view of the learned Chief Justice was wrong, that article l.3 i!1 the context of article 368 before the 24th Amend .. ment, a function to play in the scheme o~ the osi~1tio_n, namely, that it stated the authorities against which the inh1b1tion n article 13(2) operated, the categories of law to which the inhibition applied and the effect of a violation of the inhibition. Whether thr. latter part of article 13(2) was enacted by way of abundant caution or not would depend upon the answer to the question whether the word 'law' in that article woultl mclude an amendment of the Constitution also. If the word 'law' would include amendment of the Constitution, it cannot be said t11at the latter part of the article was redundant. The dictum of Chief Justice Kania is helpful only to show his reading of the meaning of the word 'law' in the article. Had the learned Chief Justice read the word 'law' in the article as including an amendment of the Constitution also, he would certainly not have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted article 13(2), as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inopcrative(1).\n\nHowever, I think that article 13(2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the i.mpugned law void. The word 'abridge' has a special connotation in the American constitutional jurisprudence; and, it i~ only fair to assume that when the Constitution-makers who were fully. aware of the language of the First Amendment to the United States Constitution, used that expression,\n\n( 1) [1950] S.C.R. 88.\n\n( 2) See Ivor Jennings, \"Some Characteristics of the Indian Constitution\", pp. 38-39.\n\n786 suPIEMlt coUaT BEPOllTS [1973} Supp. s.c.R.\n\nthey intended. to adopt the meaning which tha~ word had acquired there. Every limitation upon a fundamental right would not be an abridgement of. it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether cl a priori assumption or of mechanical jurisprudcnce. The Court must arrive at a value judgment as to what it is that is to be protected frO!D, abridgement, and then, it must i; nake a further value judgment ¥ to whether the law iqipugned. really amounts to an abridgement of that right. A textual reading might not always be conclusive. A judge confronted with the question whether a particular law abridges a Fundamental Right must, in the exercise of the judicial functin, advert. to, the moral right embodied in the Fundamental Right and . then . come to the conclusion whether the law would abridge that right. In this process, the Court will have to look to the Directive P, rincipks in Part IV to see what exactly is the content of the F, undatl\\ental Right and whether the law alleged to be in detraction or abridgCl!lent of the right is really so. The Court would generally be more aStute to protect personal rights than property rights.\n\nIn other words, Fundamental Rights relating to personal liberty or freedom would receive greater protection from the hands of the Court than property rights, as those right$ come with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type ci restriction .whicp would constitute abridgement might be different for personal rights and property rights as illustrated by the doctrine of preferred freedoms. However, it is unnecessary to pursue the matter further for the purpose of this case.\n\nMr. Palkhivala contended that even if the word 'amendment' i, n article 368 before it was amended is given its widest meaning and the word 'law' in article 13(2) is assµmed not t~ include an amendment of the Constitution there were and am certain inherent and implied .limitations upon the power of amendment flowing from tliree basic features which. must be present in the canstitution .of eyery republic. According to cowlsel, these limitations flow from the fact that the ultimate legal sovereignty resides in the people; that Parliament is a c.reature of the Constitution and not a constituent body and that the power to alter or destroy the essential features of the Constitution belongs only to the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or\n\nderoy the essential features of the Constitution, it would cease to be '1 creature of the Constitution and would become its master;, that dO onstituted body like the Amending Body can radically change the , Constitution in such a way as to damage or destroy the basic CllflSllitutional structure, as the basic structure was decided upon by the people, in the exercise of their constituent revolutionary power.\n\n](ESAVANANDA v. Kl!llALA (Mathw, J,) 737\n\nCounsel also argued that it is constitutionally imperssible for one constituent assembly to create a second perpetul constituent assembly above the nation with power to alter its essential features and 1!1at Fundamental Rights constitute an essential feature of the Constitution.\n\nThe basic premise of counsel's argument was that the ultimat.c legal sovereignty under the Constitution resides in the people. The preamble to the Constitl, ltion of India says that \"W.e the pe'?Pl~ ?.£ India, .... adopt, enact and give unto ourselves. th.is Constlttlon • Every one knows that historically this is not a fact. The Consututlon Wa& framed by an assembly which was elected indirectly on .a ited_ franchise and the assembly did not represent .the. vast rna1onty of the people of the country. At best it could represent only 285 per .cent of the adult population of the provinces, let alone the population of the Native States('). And who would dare maintain that they alone consliituted the \"people\" of the country at the time of framing .the Constitution I (2) The Constituent Assembly derived its legal coinpetentc to frame the Constitution frotn s. 8( l) of the Indian Independence Act, 1947~ The British Parliament, by virtue of its legal sovereignty over India, passed the said enactment and invested the Assembly with power to frame the Constitution. Whatever might be the constitutional result flowing from the doctrine that sovereignty is inalienable and that the Indian Independence Act itself could have been repealed by Parliament, independence, once granted, cannot be revoked by an erstwhile sovereign; at any rate, such revocation will not be recognised by the Courts of the country to which independence wasgranted. What makes a transfer of sovereignty binding is simply the possession on the part of the transferee of power and force sufficient to prevent the transferor from regaining it('). The assertion by some of the makers of the Constitution that the Constitution proceeded from he people can only be taken as a rhetorical flourish, probably to lay its foundation on the more solid basis of popular will and to give it an unuestioned supremacy, tor, ever since the davs of justinian, it was thou?ht that the ultimate legislative power including the power to frame a constitution resides in the people, and, therefore, any law or constitution must mediatelv or immediately proceed from them. \"It is cmtomary nowadays to ribe the legality as well as the supremacy of the Co11,1, titution-the one is, in truth, but the obverse of\n\n. ('J. See Granville Awtin, \"The Indian Costitution\" (1972), p. 10 and Appendix I, pp. 331.332. . ..(2) As to who ar; the people in .a Country, see the Chapter \"The People~ m Modern Dcmocraacs\" by Bryce, Vol. 1, pp. 161-169.\n\n( 8 ) Sec V. Willoughbv. \"Nature of state\" (1896) p. 229 also 'Diccy's Law cf the Constitution\" 5th ed, (1897), pp. 65n and 6&i. '\n\n788 suPREME com:t lll!P6us [1973] Supp. s.c.R .\n\n. the other-exclusively to the fact tha~ in its own phraseology, it was 'ordained' by 'the people of the United States' .. Two ideas are thus brought into play. One is the so-called 'positive' conception of law as a general expression merely for the particular. commands of a human law-giver, as a series of acts of human will; the other is that the highest possible embodiment of human will, is 'the people'. The same two ideas occur in conjunction in the oft-quoted xt of\" Justinian's Institutes: \"Whatever has pleased the prince has the fore~ ol law, since the Roman people by the lex regia enacted concerning his imperium have yielded up to him all their power and authority.\n\nThe sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded frOl'.!l a like wurce only mediately\"(').\n\nft is said that the assertion in the preamble that it was the. people who enacted the Constitution raises an incomravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief )us. tice Marshall was called upon to decide the question . whether that constitution proceeded from the people, he did not seek shelter under the preamble by asserting that the Court is concluded by the recital therein, but took pains to demonstrate by referring to historical facts that -the constitution was ratified by the people in the State conventions and; therefore. in form anJ substance, it proceeded from the people themselves(2 ). It does not follow that because the people of India did not frame the Constitution or ratified it. the Constitution has no legal validity. The validity of a constitution is one thing; the source from which it proceeds is a Jilferrnt one. Apart from its legal. validity derived from the Indian Independence Act; its norms have become efficacious and a Court which is a creature of the Constitution will not entertain a plea of its invaiidity. If the legal source for the validity of the Constitution is not that it was framed by th.e people, the amending provision has to be construed Clll its own language, without reference to any extraneous consideration as to whether the people did or did not delegate all their constituent power to the Amending Body or that the people reserved. to themselves the Fundamental Rights.\n\nLet me, however, indulge in the legal fiction and assume, as the preamble has done, tha~ it was the people who framed the Constitution. What follows? Could it be sai.cl that, after the Constitution was\n\n. ( 1) See Edward Gorwin, 'The Higher i..aw' Background of American Constitutional Law\", pp. 3-4.\n\n( 3 ) See McCulloch v . . Morykuid, 4 Wheaton 316 (1819).\n\nKESAVANANDA \"· KERALA (Mathew, J.) 789\n\nframed, the people still retain and can exercise their sovereign cn stituent power to amend or modify the hasic structure or the essential features of the Constitution by virtue of their legal sovereigntv?\n\nAccording to .Austin, a person ur bod:• is said to have )egal sovereignty, when he or it has unlimited law-u;.aking power and that there <is no person or body superior to him or it. Perhaps, it woiVd be cor-\n\n-rect to say that the possession of unlimited law-making po\"\"er is the criterion of legal sovereignny in a State, for, it is difficult to see how there can be any superior to a person or group that can make laws on all subjects since that person or group would pass a law abolishing the powers of the supposed superior. The location of sovereignty in a quasi-federal constitution like ours is a most difficult ta•k for :111y hwyer and I shall not attempt it. Many writers take the view that wvereignty in the Austinian sense does not exist in any State(') and <hat, at any rate, in a Federal State, the concept of sovereignty in that sense is incapable of being applied('). This Court has said in State of West Bengal v. Union of India(') that the \"legal theory on which 'the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country\" and that the \" .... Legal sovereignty of the Indian nation is vested in the peopl~ of India, who, as stated by the preamble, have solemnly resolved to ·<onstitute India into a Sovereign Democratic Republic .... \" I am not quite sure of the validity of the assumption implicit in this dictum.\n\nThe Supreme Court of U.S.A. has held that sovereignty vests in ti1e people('). The some view has been taken by writers \"like Jamesc .. 1, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In no country, except perhaps in :l direct deniocracy. can the people en maJse be called legally sovereign. This is only lo put more explicitly what Austin rr1eant vvlien he said that political power m1Jst be in a determinate person or body of ptrsons, for, the people at large, thl'! \\vholc JH.:ople, as distinct fro; n particular person or persons, arc incapable of concerted action and hence, of exercising political power and therefore of legal supremacy('). \"When the purported sovereign is anyone\n\nut a single acwal person, h~ designation of him must include the statement of mies for the \"'certainmem of his will, and these rules,\n\n( 1) See W. J. Ress, \"Theory of Sovereignty Re-stated\" in the book \"In 'Defense of Sovereignty\" by W. J. Stankiewicz, p. 209.\n\n(~) See Salmond's Jurisprudence, 7th ed., p. 531.\n\n\n.. (.1) See \"From John Austin to John C. Hurd\" by Irving B. Richman in Harward La\\v Review, Vol. 14, p. 364.\n\n790 SUPREME COURT REPORTS [1973) Supp. s.c.11.\n\nsince their observance is a condition of the validity of his legislation, are Rules of law logically prior to him. .. It is not impossible to ascertain the will of an individual without the aid of rules: he may be presumed to mean what he says, and he cannot say more than one thing at a time. But the extraction of a precise expression of will from a multiplicity of human belljgs is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a stat•: such and such an assembly of human beings is sovereign. It can only pe sovereign when acting in a certain way prescribed by law. At least some rudimentarv manner and form is demanded of it : the simultaneous incoheret cry of a rabble, small or large, cannot be law, for lt is unintelligible\".('). While it is true that the sovereign cannot act otherwise than in compliance with law, it is equally true that it creates the law in accordance with whieh it is to act('). And what is the provision in the Constitution or the law for the people to act as legal sovereign or as regards the manner and form when they act as legal sovereign 1\n\nThe supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk abou1 the government of laws and not of men; but sovereignty, by defini tion, must be vested in a person or body of persons. The constitu tion itself is incapable of action, Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty .:annot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the constitutional jurispmdence of the State to which it is applied is pre· dicated upon the principle that no political or individual or orgalf of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its original source in the whole citizen body or ; n an electorate representing the governed('). Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A. and the writers who maintain that the people are sovereign might be correct;. No concept. bas raised so many conflicting issues involving jurists and political theorists in '° desperate a maze as the genuine and proper meaning of sovereignty.\n\n( 1) See Latham, \"What is an Act of Parliament\" (1939) King's Counsel, p. 152.\n\n(2) See Orfield, \"The Amending of the Federal Constitution\", p. 155.\n\n(3) See Willoughby. \"Fundamental Concepts of Public Law\", pp. 99-100.\n\n, ....\n\nKESAVANANDA v. XERALA (Mathew, J.) .\n\nSeeing, however, .that the people have no constitutional r; r legal . power assigned to them under the Constitution and at !'Y .vutue of their political supremacy they can unmake the Consotut10n oi; ly .h.Y a method not sancti.ned by the juridical order, namely, revolution, 1t is difficult to agree with the proposition of counsel that the legal sovereignty. under the Constitution resides in the _people, or, that as. ulti'mate legal sovereign the people can constitutionally . change the basic structure of the Constitution even when the Constitution provides for .a specific mechanism for its amendment. . In the. last analysi'- perhape, it is right to say that if sovereignty is said to exist in any sense at all; it must exist in the Amending Body, for, as Willoughby has said : \"In all those cases in which owing to the: distnbution of governillg po\\ver there is doubt as to the political body in which sovereignty rests; the test to be applied is, the determination of which authority has, in the last instance the legal power to determine its. own competence a> well as that of others('). In Germany, the publici>ts have developed a similar theory known as the \"kompetenz... kompetenz theory\"('); . . ·\n\nThis. howeYer. does not mean that the people h:we no right . to frame the Constitution by which tbey would be governed. Of the people as well as the body politic, all that one can say is, not that they are sovereign, but that they have the natural right to full autonomy or to self-government. The people exercise this right when they esta-- b!ish a constitution('). And, under our Co.nstitution, the peopk have delegated the power to amend the in.trument wliich the-r created to the Amending B'ody.\n\nWhen a person holds a material good, it cannot be owned byanother. He cannot give it to another without his losing possession of. it and there can only be a question of transfer of ownership or a don~ tion. But. when it is a que.stion of a fr1oral or spirimal quality such a'\n\na right or power, one can invest another with a right or power with-- out losing possession of it, if thn man receives it in a vicarious manner, as a vicar of .the man who transferred it. The people are possessedof their right to goveri1 themselves in an inherent and permanent> manner •. their representatives are invested with power which exists in. the people, bl)t in a vicarious manner('). ·\n\n( 1) Willoughby, \"The Nature of the State\" (1928), p. 197. ·\n\n... ( 2 ) See Merriam~ -\"Histdry of the Theory f Sovereignty s1.nce Rosseau 7'° ( t900), 190-196. . . . . . . . . . ..\n\n(') see Jacques Maritain, \"Man and the State\", p. 25. (') see J1cques Maritain, \"Man and the State\", pp. 134-135.\n\n792 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nDelegation does not imply a parting with powers of one wbc: grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would have to do him- 'Sclf. It does not mean that the delegating person parts with the power in mch a way as to denude himself of his rights(').\n\nI will assume that the people, by designating their representat!vt111 and by transmitting to them the power to amend the Constitution, did not lose or give up possession of their inherent constituent power. (There was great controversy among the civilians in the Middle Ages whether, after the Roman people had transferred their authority to legislate to the emperor, they still retained it or could reclaim it(').\n\nThere is always a distinction between the possession of a right nr power and the exercise of it It was in the exercise of the constituent -power that the people framed the Constitution and invested the Amending llocly with the power to amend the very instrument they -created with a super-added power to amend that very power. Th'\n\ninstrument they created, by neces>ary implication, limits the further exercise of the power by them, though not the possession of it. The Constitution, when it exists, is supreme over the people and, as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it, :>nd have directly place,! that power in their representative.< without reser. vation, it is difficult to understand how the people can juridically resume the power to continue to exercise it('). It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the constituent power to amend can also be exercised at the same time hv the mass of the people, apart from the marhinery provided for tl{e amendment: In other words, the people having delegated the power of amendment, tliat power cannot be exercised in any way other tbn that perscribed nor by any instrumentality other than that designated for that purpose by the Constitution. There ore many constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But, in our Constitution, there is no provision for any such popular device and the pflwer of amendment is vested only in the Amending Body. --------\n\n( 1) See Huth v. Clarke (1890) 25 Q.B.D. 391, 395; also John Willis, \"De/egatus non potest delegare\", 21 Candian Bar Revic\\v, p. '!.57.\n\n( 2) Sec Carlyle, \"A History of Medieval Political Theory in the West\" Vol. VI, pp. 514-515.\n\n(\") See Dodge v. Woolsey (1856) 18 How. 331, 348.\n\nKESAVANANDA v. 'K£RALA (Mathew, J.) 793\n\nIt is said that \"it is within the power ot the people who made the Constitution fo un-make it, tha.t it is the creature of their own will and exists only by their will('). This dictum has no diret reeva?-cy on the question of the power of the people to amend the Const1tut1on.\n\nIt only echoes the philosophy of John Locke that people have the political right to revolution in certain circumstances and to frame a constitution in the exercise of their revolutionary constituent power.\n\nWhen the French political philosophers said that the nation alone possesses the constituent power, and an authority set up by a constitution created by the nation has no constituent power apart from a power to amend that instrument within the lines •originally adopted by the people, what is meant is that the nation cannot part with the constituent power, but only the powt: to amend the constitution within the original scheme of the constitution in minor details.\n\nSome jurists refer to these two powers, namely, the \"constituent power\" and the \"amending power\" as distinct. According to Carl J.\n\nFriedrich, the constituent power is the power which seeks to establish a constitution which, \\n the exact senst', is to be understood the de.\n\nfacto residuary power of a not inconsiderable' part of the community to change or replace an established order by a new constitution.\n\nThe constituent power is the power exercised in establishing a constitm:ion, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From thio constituent power must be distinguished the amending power which. changes an existing constitution in form provided by the constitution itself, for the amending power is itself a constituted authority.\n\nAnd he further points out tlm in French Constitutional Law the expression pouvoir constituant is often used to describe the 'amending\n\nathority' as well a\\ the constituent power, but the expression con st1tuent power used by him is not identical with tlie pouvoir consti- Hlant of the French Constitutional Law(\"). It is, however, unnecessary to enter this arid tract of whau Lincoln called 'pcrnicioljs abstraction' where no green things grow, or resolve the metaphysical n:icetieJ, for under our Constitution, there is no scope for the constituent pow.::r of amendment being exercised by the people after they hav~ delegated power of amendment to the Amending Body.\n\nTo what purpose did that instrument gie the Amending llody the power to amend the amending power itself, unless it be to confer plenary power upon the Amending Body to amend all or any of the provisions of the Constitution?\n\nIt is no doubt tru•! tliat some German thinkers,\n\n( 1) See Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 381. (') See Carl J. Friedrich, \"Constitutional Government and Politics\" (1937),. pp. 113, 118, 162 & 521.\n\n794 SUPREME COURT llEPOllTS [ 1973] Supp. s.c.1.\n\nby c1vay of protest against indiscriminate use of the amending power under the Weimar Constitution of Germany, asserted that the power of amendment is confined to alteration within the constitutional text\n\nand th; it it cannot be used to change the basic strucnure of the constitutiup. But, as I said, to say that a nation can still exercise unlimited\n\nconrituent power after having framed a constitution vesting plenary powo:r of amendment under it in a separate body, is only to say 1ha1 the people have the political power to ch; inge the existing order by meam of a revolution. But this doctrine cannot be advanced to place implied limitations upon the amending power provided in a writtc11 constitution.\n\nIt is, therefore, only in a 1evolntionary sense that one can distini. uish between constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within die frnmework of the Constitution. \"To be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing government. But should the amending power fail to work, the con .. stituent power may emerge at the critical point\" (1). The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is some\n\nthing extra•legal that no Court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent sovereign-the people-'-Can frame a constitution, but that sov-ereign can come into existence thereafter unless otherwise provided, only by revolution. ltj exhausts itself by creation of minor anci les.l!Cr sovereigns who can give any command. And, under the Indian Constitution, the original sovereign-the people-created, by the amendiug clause of the Constitution, a lesser sovereign, almost coextensive in power witp itself. This sovereign,- the one established by the revolutionary act of the full or complete sovereign ms been called by Max Radin the \"pro-sovereign\", the holder of the amending power under the constitution. The hundred per cent sovereign is established only by revolution and he can come into being again only by another revolution(\"). As Wheare dearly puts it, once the co11stitution is enacted, even when it has been submitted to the people for approval, it binds tlhereafter, not only the institutions which it establishes, but also the people themselves. They may amend the constitution, if at all, only by the method which the constitution itself provides('). Tllis is illustrated also in the case of the sovereign\n\n( 1) Sec Carl J. Friedrich, \"Constitutional Government and Democracy\" (1950), p. 130.\n\n( 2 ) See Max Radin, \"Intermittent Sovereign\", 39 Yale Law Journal, 514. (') See Wheare, \"Modern Constitutions\" (1966), p. 62.\n\nKESAVANANDA ti. KERALA (Mathetu, J.) 795\n\npower of the people to make laws. When once a constitution. is .\n\nframed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the consti-. tution, the people cannot thereafter exercise that yower •. ''The legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign ; power, whose direct exercise by them has not been express! y or impliedly reserved.· Thus the people possess the power of legislating directly only if their. constitution so provide:;\"(1)\n\nIt is said that although the Constitution does not provide for participation of the people in the process of amendment,· there is nothing in the Constitution which prohibits the passing of a law under the residuary entry 97 of List I of the Seventh Schedule for convoking a constituent assemblv for ascertaining the will of the people in the matter of amendment of Fundamental Rights. Hoar says; \"The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not express! v permit such action, and even though the frame of government attempts to prohib'it such action\"(2). Again, he says: ''Thus we come back to the fact that all coventions are valid if called by the people speaking through the electorate at a regular election. This is true regardless of whether the constitution attempts to prohibit or authorize them, or is merely silent on the subject. Their validity rests not upon . constitutional provisions, nor upon legislative act, but upon the fundamental\n\nsoverei'{ntv of the people themselves\"('). A5 to this I think the an<wer given by Willoughby is sufficient. He said: ''The position has been quite consistently taken that constitutional amendments or new constitutions adopted in modes not provided for by the existing constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing go.vernment. Thus, in the case of the State of Rhode Island, the old constitution of which contained no provision for its own amendment, the President of the United States refused to recognize de jure a government estabilshed under a new constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens\n\nof that State. But, when, somewhat later, a new constitution wa< 2dopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both\n\n(') See Rottsehaefer on Constitutional Law (1939), p. s;\n\n( 2 ) Hoar ''Constitutional Convention: Their Nature, Power and Limitations'~, p. 115.\n\n( 3 ) Hoor, uconstitutional Convention: Their Nature, Power and Limitations\", p. 52.\n\n796 suPllEME coukT ru; pORTS [ 1973] Supp. s.c.R.\n\nby the people of the State and by he National Government of thC' U'nited States\"(').\n\n' I think it might be open to the Amending Body to amend article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the C\\Jnstitution. If the basic and essential features of the Constitution can be changed only by the. people, and not by a constituted authority like the Amending Body, was it open to the Amending Body, or, would it be open to the Amending Body today to amend article 368 -in such a way as to invest the people with that power to be exercised by referendum or any other popular device ? If counsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the constitution of the Amending Body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to cllange the locus of the power to amend from the Amending Body as constituted to any other body including the people. The result is tha~ ex-hypothesi, under article 368 there was, or is, no power to amend the Fundamental Rights and the other essential or basic features in such a way as to destro~ or damage their essence or core. Nor can the article be amended in such a way as to invest the people-the legal sovereign according to counsel for the petitioner-with power to do it. This seems to me to be an impossible position.\n\nCounsel for the petitioner submitted that the preamble to the Constitution would operate as an implied limitation upon the power of amendme_nt, that the preamble sets out the great objectives of the people in establishing the constitution, that it envisages a sovereign democratic repubfic with justice, social, economic and political, liberty of thought, belief and expression, equality of status and opportunity and fratelpity as its fulcrums and that no succeeding generation can amena the provisions of the Constitution in such a way as to radically alter or modify the basic features of that form of government or the great objectives of the people in establishing the Constitution. Counsel said that the preamble cannot be amended as preamble is not a part of the Constitution, and so, no amendment can he made in any provision of the Constitution which would destroy or damage the basic form of government or the great objectives. The proceedings in the Constitutent Assembly make it clear that the preamble was put to vote by a motion which stated that the \"preaq>ble\n\n( 1 ) Willoughby, \"The Fundamental Concepts of Public Law\", p. 96.\n\nKESAVANANDA v. KERALA (Mathew, J.) 797\n\nstands part of the Constitution\" and the motion was adopted(').\n\nArticle 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, not having been explicitly stated in the article that it came into force earlier. And there seems to be no valid . reason why the preamble, being a part o£ the Constitution, cannot be\n\namended.\n\nA preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect: and it is a recital of a present intention('). In the Berubari Case(') it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment, but the Court said:\n\n\"it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself\". This case directly negatived any limitation of what is generally regarded a necessary and essential attribute of soereignty on the basis of the objectives enshrined in the preamble.\n\nStory's view of the function of the preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the Act or a constitution is not in dispute. There is also no dispute that a preamble cannot confer any power per se or enlarge the limit of any power expressly given nor can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, an unambiguous preamble may furnlsh aid to the interpretation of the enacting part.\n\nThe broad concepts of justice, social, economic and political, equa-- lity and liberty thrown large upon the canvas of the preamble as. eternal verities are mere moral adjurations with only that content which each generation must pour intlO them a new in the light of its own experience. \"An independent judiciary cannot seek to fill them from its own bosom as, if it were to do so, in the end it will cease to be independent. \"And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and\n\n, ( 1) See the proceedings of the Constituent Assembly dated October 17, 1949, c:6nstituent Assembly Debates, Vol. X, p. 429.\n\n( 2) See Wynes,\n\n111.egislativc, Executive and Judicial Powers in l\\ustra!ia•,. (4th ed., p. 506).\n\n(') [1960] 3 s.C.R. 250, 281-282.\n\n51-36 S. C. India/73\n\n798 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\nconditions of men, nor will its answers be theirs. It must be content to stand aside from these fateful battles as to what these concepts mean and leave it to the representatives of the people(').\n\nTo Hans Kelsen, justice is an irrational ideal, and regarded from the point of rational cognition, he thinks there are only interests and hence confilct of interest. Their solution, according to him, can ho brought about by an Order that satislies one interest , at the expense of the other or seeks to achieve a cotnpron; llse between opposing interests('). Allen said that the term \"social jwtice\" has no definite content that it means different things to different persons('). Of 1'1berty, Abraham Lincoln said, that the world never has had a good definition of it. The concept of equality appears to many to be a myth and they say that if the concept is to have any meaniJtg in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does not follow tliat because these .concepts have no definite contours. They do not exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it .!oes not exist(').\n\nBut for a counuy strugglipg to build up a social order for freeifig its teeming millions from the yoke of proverty and destitution, the preamble cannot afford any clue as to the priority value of these concepts inter se. Justice Johnson, wjth one of his flashes of insight, called the science of government \"the science of experiment\"(').\n\nAnd for making the experiment for building up the social ()lfder wruch\n\nthe downant opi.n.ioo. of tl_ie community desires, these Delphic concepts can offer no solution in respect of thei.r priority value as among themselves. They offer no guide in. what proportion should each. of them <:ontribute, or which of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object <>f the amendment is to give priority value to the other or others?\n\nMr. Palkhivala in elaborating his submission on implied limitations said that in a constitutibn like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of India, the people's right to vote and elect their representatives to Parliament or State legislatures, i:he republican form of\n\n( 1) See Learned Hand, \"The Spirit of Liberty'', ~· 125.\n\n( 2) See Kelson, \"General Theory of Law and State\" (1946), p. 13.\n\n( 8) Allen, \"Aspects of Justice\", p. 31, '(') See Lord Reid in Ridge v. Baldwin; (1964) A.C. 40, 64. '(') See Anderson v. Dunn, 6 '.Wheat 2(1.t: 266 U.S. 1821.\n\nKESAVANANDA fl, KE!l\"LA (Mathew, J.) 799\n\ngovernment, the secular State, free and independent judiciary, dual structure of the Union, separation of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a constituted :ruthority, has no power.\n\nWhenever the question of implied limitation upon the power of amendment was raised in the U.S.A. the Supreme Court has not countenanced the contention.\n\n1n Leser v. Garnett(\") the U.S. Supreme Court upheld the validity of the 19th Amendment, rejecting the contention that the pow¢r of amendjllent conferred by the federal constitution did not extend to that amendment because of itscharacter'\"\" as so great an addition to the electorate, if made without the State's consent, destroys it1\n\nautonomy as a political body\"\"· In U.S. fl. Sprague('), the Suprem~ Court rejected the contention that an amendment, conferring on the.\n\nUnited States, power over individuals, should be ratified in conventions instead of by State Legislatures. The argument before the Court was that although Congress has absolute discretion to choose the one or the other mode of ratification, , there. was an implied limitation upon that discretion when rights of individuals would be directly affected and that in such a case the amendment must be ratified by convention. The Court said that there was lio limitation upon the absolute discretion of the Congress to have the amendment ratified either by conventions or State legislatures. In. the National Prohibition Cases(\") which upheld the validity of the 18th Amendment to the United States Constitution, the Supreme Court brushed aside the argument that there arc implied limitations upon the power of amendment.\n\nAlthough the majority judgment gave no reasons for its conclusion, it is permissible to look at the elaborate briefs filed by counsel in the several cases and oral arguments in order to understand what was argued and what was decided('). The arguments advanced in National Prohibition Ca.1es(') before the Supreme Court were that an amendment is an alteration or improvement of that which is already contained in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the Constitution contemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union\n\n( 1) 258 U.S. 130.\n\n••Emphasis added.\n\n( 1) 282 U.S. 716.\n\n( 8 ) See Rhode Island v. Palmer, 253 U.S. 350. (') See U.S. v. Sprague, 282, u.s. 7Hi, '733.\n\n800 SUPREME COURT REPORTS [1973] Supp. S.C.R.\n\nwas beyond the power delegated to the amending body by article V and that the Amendment invaded the police power which inheres in the State for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did not countenance any of the arguments advanced in the case.\n\nThe result of the National Prohibition Cases(') seems to be' that there is no limit to the power to amend the Constitution except that a State may not be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the legislatures in three-fourth of the States, all the powers of the national government could be surrendered to the State an\\! all the reserved powers of the States could be transferred to the . Federal Government(').\n\nDodd, speaking about the effect of the decision of the Supreme CoUrt in National Prohibition Cases(') said that the CoUrt has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the. amending power, althoogh this statement does not necessarily go to the extent of denying all limitation other than those clearly expressed in the constitutional language itself(').\n\n\"Article Five of Constitution prohibits any amendment by which any State \"without its consent shall be deprived of its equal suffrage in \"the Senate\". Beyond this there appears to be no limit to the powef of amendment. This, at any rate is the result of the decision in the so-called National Prohibition Cases\"(').\n\nIn Schneiderman v. U. S.(\") Justice Murphy, after referring to National Prohibition Cases said that article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that relating to equal suffrage in the Senate.\n\nIn U. S. v. Dennis(\") Learned Hand was of the opinion that any amendment to . Constitution passed in conformity with the provision\n\n(') See Rhode Island v. Palmer, 253 U.S. 350.\n\n( 2) See Burdick, \"The Law of the American Constitution\", pp. 44-49. (') See 30 Yale Law Journal 329. (') See Thomas M. Colley, \"The General Principles of Constitutional Law in the U.S.A.\", 4th ed., pp. 46-47 •.\n\n(•) 320 U.S. 118, 137-145. (') 183 Federal Reporter 2d., 20!,\n\nKESAVANANDA v. KERALA (Mathew, J.) 801\n\nin Constitution relating to amendments is as valid as though the amendment had been originally incorporated in it, subject to. the excepriPn that no State shall be denied its equal suffrage in the Senate.\n\nThe latest authority is the obiter dictum of Douglas, J. for the majority of the Supreme Court in Whitehill v. Elkins('):\n\n\"If the Federal Constitution is our guide, a person who might wish to ·\"alter\" our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of 'alteration' by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered.\"\n\nPerceptive writers on the Constitution of the U.S.A. have also taken the view that there are no implied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Constitution did not intend to make an unalterable framework .of Government in which only the minor details could be changed by amendment(').\n\nIn Ryan's Case('), the Supreme Court of Ireland has occasion to discuss and decide two questions: (I) the meaning to be given to the word 'amendment' in article 50 of the Irish Constitution which provided for the amendment of the Constitution and (2) whether there arc any implications to be dra.vn from the Constitution which would cut down the scope of the amendment which could be made under article 50. I have already dealt with the decision in the case with\n\nrespect to the first point.\n\n( 1) (1967) 389 U.S. 54, 57.\n\n( 2 ) See Willis, \"Constitutional Law\" (1936), pp. 123-124; Orfield, \"The Amending of the Federal Constitution\" (1942), p. 99; Livingstone, \"Federalism and Constitutional Change\" (1956), pp. 240 241;\n\nRottsch3eferi HConstitutional Law\", pp. 8-9; John W. Burgess, \"Political Science and Comparative Constitutional Law'', \\'ol. I, p. 153; Colley, \"Constitutional Limitations\", pp. 41-43; D. 0. 1vfcGovney, \"Is the Eighteenth Amendment Void Because of Its Contents \", Columbia Law Revie\\v, Vol. 20, May 1920 No. 5; \\V. F. Dodd, \"Amending the Federal Constitution'', 30 Yale Law Journal 329; W. W. Willoughby, \"Constitutional Law of the United States\", 2nd ed., Vol. I, 598. (') [1935] Irish Reports, 170.\n\n802 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\n& regards the second point, Kennedy, C.J. was of the opinio~ that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were no such limitations. However, it is not necessary to deal with the suggested implied limitations relied on by the learned Chief Justice in the light of his observation: \"the only argument advanced in support of this position is that the power to amend the Constitution gives power ' to amend the power itself. It certainly does not say so. One would ex. pect (if it were so intended) that the power would express that intention by the insertion of a provision to that efft by some sucli words as \"including amendment of thls power of amendment\", but no such intention is expressed and there is nothing. from which it can be implied\". There might be some justification for the view of Kenneqy, C. J. that \"power of amending a constitution is something outside and collateral to the constitution itself' and that unless there is express power to amend the amending power, the amending power cannot be enlarged. Alf Ross, the Scandinavian Jurist, has said that in the United States the highest authority is the constituent power\n\nconstituted by .the rules in article V of the Constitution. These rules embody the highest ideological presupposition of the American Law system. But they cannot be regarded as enacted by any authority and they cannot be amended by any authority. Any amendment of article V of the constitution which, in fact, is carried out, is an a-legal fact and not the creation of law by way of procedure that has been instituted('). Now, whereas article 50 of the Irish Con stitution did not contain any power to amend that article, proviso ( e ), of article 368 makes it clear that article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C. J. has ne> relevance for oor purpose. It is interesting to note that in Moore v.\n\nAttorney General for the Irish State(\") where the constitutional amendment made by the Irish Parliament in 1933 (Amendment No ..\n\n22) was challenged, Mr. Green conceded before the Privy Council that Amendment No. 16 of 1929 (the amendment challenged in Ryan's Case) was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his client's case and the concession of counsel was, in their Lordship's view, \"rightly\" made.\n\nThe decision of the Privy Council in Liyanage v. the Queen(') was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for consideration in that case was whether Criminal Law (Special Provisions) Act No. 1 of 1%2 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of\n\n(') Alf Ross, \"Law and Justice\\ p. 81.\n\n(2) (1935) A.C. 484.\n\n( 8 ) (1967) I A.C. 259.\n\nKESAVANANDA V. KERALA\n\n0 (Mathew, J.) 803\n\nevidence and the criminal procedure obtaining under the general law at the time of the co=ission of the offence and also to impose enhanced punishment. The appellants contended that the Act was passed to deal with the trial of the persons who partook in the abortive coup in question and the arguments before the Privy Council were that the Act of 1962 wa~ contrary to fundamental principles of justice in that it was directed against individuals, that it ex-post facto created crimes and their punishments, and that the Act was a legislative plan to secure the conviction of these individuls and this constituted an usurpation of the judicial power by the legislature.\n\nThe Privy Council rejected the contention that the powers of the Ceylon Legislature could be cut clown by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are no express provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the Charter of Justice of 1833, that the change of sovereignty did not produce any change in the functioning of the judicature, that under the provisions of the Ceylon Constitution there is a broad separation of powers and that, generally speaking, the legislature cannot exercise judicial power in spite of the difficulty occasionally felt to 'tell judicial power from legislative power •.\n\nEven since the days when John Locke wrote his \"Second Treatise on Civil Government\"('), it was considered axiomatic that the legislative power does not include judicial power. And I think what the Privy Council said in effect was that the power to pass a law for peace, order, or good government under s. 29(1) of the Constitution of Ceylon would not take in a power to settle a controversy between Richard Doe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see how the doctorine of implied limitation has anything to do with the well understood principle that the power to pass law would not include judicial power(2).\n\nNor am I able to understand how the doctrine of implied limitations can draw any juice for its sustenance from the fact that President or Governor is bound to act according to the advice of the Council of Ministers, although the expression \"aid and advise\" taken by itself, would not denote any compulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning.\n\n(1) See the Chapter, \"Of the Extent of Legislative Power.\"\n\n( 2) As to the distinction between legislative power and judicial power, see the observation of Holmes in Prentis v. Atlantic Coatt Line Co., (1908), 211 U.S. 210.\n\n804 SUPREME COURT REPORTS [1973] Supp. s.C.R.\n\nThe doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of construction was rejected by the Privy Council in Web ti. Outrim(').\n\nCounsel for the petitioner relied on certain Canadian Cases to support his proposition that there are implied limitations upon the\n\npower of amendment. In Alberta Press Case(2 ) Chief Justice Sir Lyman P. Duff said that the British North America Act impliedly prohibits abrogation by provincial legislatures of certain important\n\ncivil liberties. He said that the reason was that the British North America Act requires the cablishmcnt of one Parliament for Canada and since the torm 'parliament' means, when interpreted in the light of the preamble's reference to \"a construction similar in principle to that of the United Kingdom'', a legislative body cleted and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal parliament, and therefore, ultra vires the provincial legislature. This dictum logically involves a restriction of the powers of the dominion parliament also as was pointed out by Abbott, J. in the Padlock Law case('). In that case he expressed the view, although it was not necessary so to decide, that parliament itself could not abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial legislatures. ·\n\nIn Saumur v. City Quebec(') the preamble of the British North America Act was referred to as supporting the constitutional requirt'- inent of the religious freedom especially by Rand, J. The basic issue in that case was whether or not the Provinces had legislative authority to enact law in relation to the religious freedom, and whether the city of Quebec was justified by one of its bye-laws under a Provincial Act from prohibiting the distribution of bookaets etc. in the streets without the written permission of the Chief of Police. The petitioner, a member of Jehovah's Witnesses contended that the right to distribute booklets was guaranteed by the statement in the preamble to the British North America Act and that freedom of religion was secured by the Constitution of the United Kingdom, and that fundamental principles of that Constitution were made a part of the Canadian Constitution by implication of the preamble and accordingly the impugned Quebac bye-law was null and void. This contention was rejected by a majority of the Court. Rinfret, C.J.C., Taschereau, J.\n\n( 1) (1907) A.C. 81 (P.C.).\n\n( 2) (1938) 2 D.L.R. 81. (') See Switzman v. Elbling, (1957) 7 D.L.R. 337.\n\n(') [1953] 4 D.L.R. 641.\n\nKESAVANANDA v. KERALA (Mathew, J.) 805\n\nconcurring, stated that the Privy Council, on several occasions had , declared that powers distributed between Parliament and the Legislatures covered absolutely all the powers which Canada could exercise as a political entity. Kerwin, J. stated that the British North America Act effected a complete division of legislative powers, Cartwright, J. (Fauteux, J. concurJing) went even further: He said that there were no rights possessed.by the citizens of Canada which could not be modified by either Parliament or the Legislatures of the Provinces. Rand, J. found some support in the preamble for freedom of speech, but did not mention freedom of religion in this context. Estey and Locke, JJ. assume that any topic of internal self-government was withheld from derived from it.\n\nIt should be noted the view that neither the provinces nor the dominion Parliament could legislate on civil liberties so as to affect them adversely is contrary to the view of the Privy Council that no topic of internal self-Government was withheld from Canada. \"It would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-government was withheld from 'Canada(').\n\nThe main objection however to the proposition that the British North America Act contains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the \"Constitution is similar in principle to that of Great Britain, it must follow that the legislature is supreme as that is the fundamental law '()f the British Constitution. Therefore, no subject would be beyond the legislative competence of both parliament and provincial legislatures. Whether there are any implied limitations upon the power 'Of parliament or not, it is clear that the dictum of Abbott, J. in Swit7~\n\nman's case is based on no high authority as there is nothing in the 'British North America Act to indicate that civil liberties are beyond the legislative reach of the parliament and the provincial legislatures. 'There was no express guarantee of civil liberties in the British North America Act, nothing comparable to the Bill of Rights in the American Constitution or to the Fi:damental Rights under our Comtitu- tion.\n\nIt is, however, impossible to see the relevance of these dicta so far as the interpretation of article 368 is concerned as none of these cases are cases relating to implied limitation on the power of amendment of any constitution. They are cases on the legislative competence of legislatures to affect civil liberties. The Canadian BiU of Rights.\n\n19~0, makes it clear that parliament of Canada can dispense with the\n\n(') A.G. Ontario v. A. G. Canada, [1912] A.C. 571.\n\n806 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\napplication of the Canadian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of the Canadian Bill of Rights provides:\n\n\"2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared and in particular, -no.\n\nlaw of Canada shall be construed or applied so as to .... \"\n\nNor is there anything in the actual decision of the Privy Council in Re the lnhiatfre and Referendum Act(') to show that there are implied limitations upon the power to amend any provision of the Constitution. The only point decided in that case was that in the absence of clear and unmistakable language ln s. 92(1) of th<; British North America Act, 1867, the power of the Crown possessed through a person directly responsible to the Crown cannot be abrogated. That was because s. 92(1) provides for an express exception to the power of amendment and that the Act in question, on a true construction of it, fell within the exception. The case is an authority only as to the true meaning of the expression \"excepting as regards the office of Lieutlenant Governor\" in s. 92(1) of the aforesaid Act. I am not concerned with the obiter dictum of Lord Haldane to the effect that a provincial legislature cannot \"create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence\".\n\nHowever, it is relevant in this context to refer to the comment of Bora Laskin on the obiter dictum of Lord Haldane in the above case: \"This oft-quoted passage remains more a counsel of caution than a\n\nconstitutional limitation\". He then read the above passage and continued : \"This proposition has in no way affected the widest kind of delegation by Parliament and by a provincial legislature to agencies of their own creation or under their control; see Reference re Regulations (Chemicals.) (1943) 1 D.L.R. 248; Shannon\n\nv. Lower Mainland Dairy Products Board (1938) A.C. 708(').\n\nReference was made by counsel for the petitioner to Taylor v. Attorney General of Queensland(1 ) as authaity for the proposition that power of amendment can be subject to implied limitation. The questiom.\n\n(1) [1919] A.C. 935, 945.\n\n(2) See Canadian Bar Review, Vl. XXXIV (1956), footnote on p. 219 .. (') 23 C.LR. 45i.\n\nKESAVANANDA v. KERALA (Mathew, J.) 807\n\nwhich the Court had to consider in the case were: (1) Was the Parlia...\n\nmentary Bills Referendum Act of 1908 a valid and effective Act of Parliltment? and (2) Was there power to abolish the Legislative Concil of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908? These Acts did not alter the 'representative' character of the Legislature as defined in s. 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. Therefore, the question whether the representative character of the Legislature could be changed, or the Crown eliminated did not call for decision. This will be clear from the observations of Gavan Duffy and Rich, JJ. at p. 477.\n\nThe judgment of Issacs, J. shows that the opinion expressed by him as regards the \"representative\" character of the legislature is based on the meaning to be given to the expression 'constitution of such legislature' on a true construction of s. 5 of the OOOonial Laws Validity Act.\n\nIssacs, J. held that the word 'legislature' did not include the Crown.\n\nHaving reached this conclusion on the express language of the Colonial Laws Validity Act, he made the observation:\n\n''When power is given to a colonial legislature to alter the Constitution of the legislature, that must be read subject to the fundamen ta! conception that consistently with the very nature of our Constitution as an Empire, the Crown is not included in the ambit of such power\".\n\nThese observations arc made in the context of the provisions of the Colonial Laws Validity Act where a \"colony\" is defined to include \"all\n\nof Her Majesty's possessions abroad in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man\".\n\nThe observation of Issacs, J. can ooly mean that when power to alter the Constitution of the legislature is conferred upon a colony which is a part of Her Majesty's possessions abroad (the Empire), it is reasonable to assume that such power did not include the power to eliminate the Queen as a part of a colonial legislature. It is to be noted that Issacs, J. had arrived at that conclusion on the true construction of the Colonial Laws Validity Act, namely, that the word 'legislature' did not include the Crown.\n\nMangal Singh v. Union of lndia,(1) was also relied on as authority for the proposition that the power of amendment is subject to implied limit.lion. The only question which was considered in the case was that when by a law made under article 4 of the Constitution, a\n\n\n808 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nSta~ was formed. that State should have the legislative, executive and judidal organs; the Court said:\n\n\" •..... Power with which the Parliament is invested by article 2 al)d 3, is power to admit, establish, or form new Stattcs which con form to the democratic pattern envisaged by the Constitution; and the power which the Parliament may cli:ercise by law is supplemental, incidental or consequential to the admission establishment or formation of a State as contemplated by the Constitution, and not power to override the constitutional scheme. No State can therefore be formed, admitted, or set up by law under article 4 by the Parliament which has not effective legislative, executive and judicial organs\".(').\n\nI am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs.\n\nSection 128 of the Australian Constitution Act provides for alteration of that Constitution. There arc certain restrictions upon the power\n\nof amendment. W c are not concerned with the controversy whether those restrictions can be taken away in the exercise of the power of amendment, as proviso(e) of article 368 makes it clear that the amenr ding power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there arc no other limitations upon the power ot alteration and that all the provisions of the constitution can be amended(').\n\nReference was made to the case of Victoria v. Commonwealth(8} in suppon of the proposition that there are implied limitations upon the power o.f Commonwealth Parliament in Australia and therefore, there could be implied limitation upon the power of amendment. The pay roll tax imposed by the Pay Roll Tax Act, 1941 (Com.) was, according to the Pay Roll Tax Assessment Act, 194J-69, to be levied and paid or payable by any employer. Section 3(1) of the Pay Roll Tax Assessment Act defined 'employer' to include\n\n\n ( 2) See A. P. Canaway, K. C., \"The Safety Valve of the commonwealth Constitution'', Australian Law Journal, vol. 12, (1938-39), p. 108 at 109; A. P. Canaway, K. C. (N.S.W.), ''The Failure of the Federalism in Australia\", Appendix: Power to Alter the Constit\\).tion, A Joint Legal Opinion, p. 211; John Quick and Robert Randolph Garran, \"Annotat<d Constitution of the Australian Commonwealth\", pp. 988-9; W. Anstey Wynes, ''Legislative, Executive and Judicial Powers in Australia\", Third Ed. pp. 695.698; Colin Howard, \"Australian Federal Constitutional Law\" (1968).\n\n( 3) 45 Australian Law Journal 251.\n\nKESAVANANDA v. KERALA (Mathew, J.) 809\n\nthe Crown, in the right of a State. The State of Victoria sought declaration that it was beyond the legislative competence of the Commonwealth to levy tax on wages paid by the Crown in the right of the\n\nState to officers and employees in the various departments. Menzies, Windeyer, Walsh and Gibbs, JJ. held that there was implied limitation on Commonwealth legislative power under the Constitution, but the Act did not offend such limitation. Barwich, C. J. and Owen, J. held that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be sup. ported upon any granted legislati.ve power, but there is no implied limitation on Commonwealth legislative power under the Constitution\n\narising from the federal nature of the Constitution. McTiernan, J. held that there was no necessary implication restraining the Commonwealth from making the law.\n\nAs to the general principle that non-discriminatory laws of the Commonwealth may be invaHd in so far as they interfere with the performance by the States of their constitutional functions, it must be noted that that is not claimed to rest on any reservation made in the Engineers' Case(') itself tOi the general principle it advanced. It must also be noted that Menzies, Walsh and Gibbs, JJ. were not prepared to formulate the proposition as a single test in precise and comprehensive terms and that tihey were alive to the great difficulties which would be encountered in the formulation.\n\nIf there are difficulties in formulating an appropriate test, is it not legitimate to ask whether the proposed principle is one that is capable of formulation? Is it not legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the comment that \"it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact\". It is difficult to\n\nstate in clear terms from the judgments of these judges as to what kind of legislative action by the O>mmonwcalth will he invalid because of the application of the general principle.\n\nThe stated purpose of the general principle is to protect the continued existence and .independence of the States. Po the judgments of Menzies, Walsh .and Gibbs, JJ. disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle?\n\n~ 1 ) Amalgamated Society. of Enginem v. Adelaide Steamship Co. LtJ,\n\n(1920) 28 C.LJt 129.\n\n810 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nWindeyer, J.'s judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other constitutional prohibitions, e.g., an implied prohibition on a tax discriminating against a State. However, many cases arise in which competing possible characterizations of a Commonwealth law are possible; on one characterization it is valid, on another it is invalid. The Courts, when faced with competing possible characterizations, may not hold law valid because one possible characterization is that the law is with respect to one of the enumerated heads of legislative power.\n\nWindeyer, J. said that° a law of the Commonwealth which is directed against the States to prevent their carrying out of their functions, while it may be with respect to an enumerated subject-matter, i~ not for the peace, order and good government of the Commonwealth.\n\nThe basic principle of construction which was definitely enunciated by the Court was that adopted by Lord Selborne in Queen v. Burah(1).\n\nThe judges who took the view that there was implied limitation on the power of Commonwealth to aim their legislation against the State .did not differ in substance from the theory propounded by Barwick,\n\nC.J. and Owen, J. who said that it is a question of lack of power as the legislation is not with respect to a subject within the power of taxation conferred by s. 51 of Australian Constitution (2).\n\nI am unable to understand the relevancy of this decision. In a federal or quasi-federal State, the continued existence of the federated States, when the constitution exists, is a fundamental pre-supposition and the legislative power of the federal legislature cannot be exercised in such a way as to destroy their continued existence. But when we arc dealing with an amending power, is there any necessity to make that fundamental assumption? There might be some logic in implying limitation upon the legislative power of the federal legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal state, namely, the continued existence of States. But what is its rclevanq when we arc dealing with implied limitation on the amending power, which is a power to .alter or change the constitution itself?\n\nIt is relevant in this connection to note ':he vicissitudes in the fortune of the doctrine of immunity d instrumentalities which was based .on the theory of implied prohibition. Marshal, C.J. said in McCulloch\n\n( 1) [1878] 3 A.C. 889.\n\n( 1) See generolly Falgenbaum and Hanko, \"Australian Constitutional 4.,.. .(1972), pp. 576-580.\n\nKESAVANANDA v. KERALA (Mathew, J.) 811\n\nv. Maryland('). \"The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and State Governments respectively being sovereign and independent, each must be free from the control of the other; the doctrine was thus based upon the necessity supposed to arise in a federal system\". The progressive retreat from the doctrine in its original form has been traced by Dixon, J. in Essendon Corporation v. Criterion Theatres( 2 ). He said:\n\n\"The shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the Court in Graves v. New York 306\n\nU.S. 466 where the Court thought it imperative to \"consider anew the immunity .. for the salary of an employee of a Federal instrumentality (at p. 485) from State Income tax and decided that there should be no immunity\". Frankfruter, J. remarked: \"In this Court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined\" (at p. 491). This case marked the end of the old doctrine\"\n\nI would add that the theory of immunity of instrumentalities was definitely rejected by this Court in State of West Bengal v. Union of India(').\n\nMr. Palkhivala argued with considerable force that if there are no limitations upon the power of amendment, the consequences would be far reaching. He said that it will be open to the Parliament to prolong the period of its existence, to make India a satellite of a foreign country, do away with the Supreme Court and the High Courts, abolish the Parliamentary system of Government and take away the power of amendment or, at any rate, make the exercise of the power so difficult that no amendment would be possible. As I said there is no reason to think that the word 'amendment' was used in anv narrow sense in article 368 and that the power to amend under the article was in any way limited. If there is power, the fact that it might be abused is no ground for cutting down its width.\n\nIn Vacher and Sons v. London Society of Composittm(') Lord Atkinson said that it is well establishC!d that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one\n\n( 1) (1819) 4 Wheaten 316.\n\n(') (1947) 74 C.L.R. 19-22.\n\n( 8) A.l.R. 1963 S.C. 1241. (') (1913] A.C. 107, at p. 121 a: 118.\n\n812 SUPREME COU1lT REPORTS [1973] Supp. s.c.R.\n\nwhich would lead to one or more of. them. In the same case, Lord McNaughton said that a judicial tribunal has nothing to do with the policy of any Act and that the duty of the Court, and its only duty, is to expl>und the language of the Act in accordance with the settled rules of construction.\n\nIn Bank of Toronto v. LAmbe(1 ) bhe Privy Council was concerned with the question whether the Legislature of a Province could not levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy C, ouncil said that if on a true construction of s. 92 of the British North America Act, the power fell within the ambit of the section, it would be quite wrong to deny its existence because by some possibility that it may be abused or may limit the rane which oclierwise would be open to the Dominion Parlia ment. The Privy Council observed that ''Their Lordships cannot conceive that whn the Imperial Parliament conferred wide powers of local self-government on great countries such as Quebec, it intcllded to limit them oil the speculation that they would be used in an injurious manner. People , who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax\".\n\nIn Ex-parte Crossman(\") it was held that the presumption is that every organ of a State will act in coordination, that though one organ can, by its action, paralyse the functions of the other organs and make the constitution come to a standstill, yet no constitution proceeds on tm:\n\nassumption that one organ will act in such a way as to defeat the action of the other.\n\nOur Constitutidn, in its preamble has envisaged the establishment of a democratic sovereign ; epublli:. Democracy proceeds on the basic assumption that the rewesentativcs of the people in Parliament will reflect the will of the peaple and that they will not exercise their powers to be!ray the people or abuse the trust and confidence rcsposed in them by the people. Some of the great powers appertaining to the sovereignty of the State are vested in the representatives of the people. They hav( the power to declare war. They have power over coinage and currency.\n\nThese disaster-potential powers are insulated from judicial control. These powers, if they are imprudently, exercised, can bring about cons_equence• so extensive as to' carry down with them all else we value; War and inflation ave\"released evil forces_ which have destroyed liberty. If these great powers could be entrusted to the representatives of the pcbple' in the hope and confidence that they will not. be abused, where is the warrant for the assumption that a plenary power. to amen~ will be\n\n( 1 ) [1887] 12 A.C. 575, 586.\n\n(') 267 U.S. 120,, 121.\n\nllSAVANANDA ti, liRALA (Mathew, J.) 813\n\nabused? The remedy of the people, if these powers are abused, is in the polling booth and the ballot box.\n\nThe contention that if the power to amend Fundamental Rights in such a way as to take away or abridge them were to vest in Parliament, it would bring about the catastrophic consequences apprehended by counsel has an air of unreality when tested in the light of our experience of what has happened between 1951 when Sankari Prasad's case(') recogni 0ed the power of the Parliament to amend the Fundamental Rights and 1967 when the Golknath Case(') was decided. It should be remembered in this connection that the Parliament when it exercises its power to amend Fundamental Rights is as much the guardian of the liberties of the people as the Courts.\n\nIf one of the tests to judge the essential features of the Constitution is the difficulty with which. those features can be amended, then it is clear that the features which are broadly described as \"federal features\"\n\ncontained in clauses (a) to (d) of the proviso to article 368 are essential features of the Constitution. The articles referred to in clause (a) to (d) deal with some of the essential features of the Constitution like the Union fudiciary, the High Courts, the legislative relation between the Union and the States, the conferment of the residual power and so on.\n\nThe power to amend the legislative lists would carry with it the power to transfer the residuary entry fmm the Union List to the State List.\n\nThis would also enable Parliament to increase iii; power by tran1ferring entries from the State List or Concurrent List to the Union List. The proviso to article 368 thus makes it clear that the Constitution-111akers\n\nvisualised the amendability of the essential features of the Constitution.\n\nMr. Palkhivala contended that Fundamental Rights are an essential feature of.the Constitution, that they are the rock upon which the Constitution is built, that, by and large, they are the extensions, combinations or permutations of the natural rights of life, liberty and. equality possessed by the people by virtue of the fact that they are human beings and thanhese rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a constituted authority like Parliament. He said that the implied limitation stems from the character of those , rights as well as the nature oi the authority upon which the power is supposed to be con- .rerrcd.\n\nOn the other hand, the respondents submitted tfuit the people oc India have only such rights, as the Constitutii>ri conferred upon them, that before the Constitution came into force; they had no Fundamental\n\n( 1) [1952] S.C.R. 89.\n\n( 1) [1967) 2 S.c.R. 1Q. '2-36 S. C. Jndia/73\n\n814 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nRights, that the rights expressly conferred ui>on the people by Part III of the Constitution and that there is no provision in our Constitution like article 10 of the United States Constitution which reserved the rights of the people to themselves. They also said that the characterisation of Fundamenial Rights, as tran cendental, sacrosanct or promodilll in the sense that they are \"not of today or yesterday but live eternally and none can date their birth\" smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispassionate analysis of the real issues in the case.\n\nThe question presented for decision sounds partly in the realm of political philosophy but that is no reason why the Court should not solve it, for, as De Tocqueville wrote: \"scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question\"('). For the purpose of appreciating the argument of Mr. Palkhivala that there is inherent imitation on the power of Parliament to amend Fundamental Rights, it is necessary to understand the source from which these rights arise and the reason for their fundamentalness.\n\nLet it be understood at the very outset that I mean by natural rights those rights which are appropriate to. man as a rational and moral being and which are necessary for a good life. Although called 'rights', they are not_per se enforceable in Courts unless recognized by the positive law of a State. I agree that the wbrd 'right' has to be reserved for those claims and privileges which are recognized and protected by law. But to identify rights with legally recognized rights is to render oneself helpless before the authoritarian state. Your rights, on this theory, arc precisely those which the State provides you and no more. To say that you have rights which the State ought to recognize is, from this point of view, a plain misuse of the language. \"However, from the point of view of the Declaration of Independence, to recognize the existence of rights prior to and independent of political enactment, is the beginning of political wisdom. if the governments are established to 'secure these rights', the pre-existence of these rights is the whole basis of the political theory''('). The preamble to our Constitution shows that it was to 'secure' these rights that the Constitution was established, and that, by and large, the Fundamental Rightt< are a recognition of the pre-existing natural rights. \"They owe nothing to their re- ' cognition in the Constitution-such recognition was necessary if the Constitution was to be regarded complete\"(').\n\n( 1) See &Tocqueville, \"Democracy in America\" (19-48), Bradly ed. 'p. 280.\n\n( 2)' See 'Hotking, ''Ftted6in of the Pre11\", footnote at p. 59. (') See Corwin \"The Higher Background of the American Constitutional Law\"., p. 5,\n\nKESAVANANDA f/, KERALA (Mathew, J.) 815\n\nThe philisophical foundation of the rights of man is natural law and the history of rights of man is bound up with the history of natural law('). That law is deduced not from any speculative void but from the general condition of mankind in society. According ro St. Thomas Aquinas the order of the precepts of the natural law follows the order of natural inclinations, because, in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances in as much as every substance seeks the preservation of its own being, according to its nature; and by reaocm. of this inclination, whatever is a means of preserving human life, and the warding\n\noff its obstacles, belongs t!O the natural law('). In a diiferent context Spinoza proclaimed the very same principle in his famous words \"Every\n\nbeing strives to persevere in being(')\". Secondly, according to St.\n\nThomas Aquinas, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law whfr:h nature has taught to all animals, such as sexual intercourse, the education of the offspring and so forth(') And thirdly, there is in man an inclination to good according to the nature of his reason which inclination prompts him to know the truth and to live in society.\n\nThe law of nature is both an expression of reality and a standard to measure the rightness and justice of positive law. The inl!uence of natural law on the concept of natural justice and of the reasonable man of the common law, on the conflict law, the law of merchants and the law of quasi-contract, with special reference to the common law of India has been traced with great learning by !::ir Frederic Pollock in his essay on the \"History of the Law of Nature\"(').\n\nIt is true that law of nature has incurred the charge of being _fanciful and speculative and several of the theories advanced in support of natural law have been discredited. Mr. Max M. Laserson has riglitlv said that the doctrines of natural law must not be confused with natural law itself. The doctrines of natural law, like any other political and legal doctrines, may propound various arguments or theories in order to substantiate or justify natural law, but the overthrow of these theories\n\n( 1) See Jacques Maritain, \"Man and the State\", pp. 80-81. (') See Summa Theologica, Part II, Section I, Question 91, Article 2 (trans lated by the English Dominicans), Vol. 3.\n\n( 8 ) See \"Ethics\", Part III, Proposition No. 6.\n\n( 4) Sec \"Essays in Law\", p. 31.\n\n816 SUPREME COURT REpOJlTS [ 1973] Supp. s.c.R.\n\ncannot signify the overthrow of natural law itself, just as the overthrow of some theory of philosophy of law does not lead to the overthrow of law itsef(1).\n\nThe social nature of man, the generic traits of his physical and mental constitution, his sentiments of justice and the mora:ls within, his instinct for individual and collective preservation, his desire for happiness his sense of human digni.ty, his consciousness of man's station and purpose in life, all these are not products of fancy bur objective factors in the realm of existence('). The Law of Nature is not, as the English utilitarians in their ignorance of its history supposed, a synonym for arbitrary individual preference, but that on the contrary, it is a living embodiment of the collective reason of civilized mankind, and as such\n\ns adopted by the Commwi Law in substance cliough not always by\n\npame(•).\n\n\"The sacred rights of mankind are not to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power\"(').\n\nln State of West Bengal v. Subodh Gopal(') Patanjali Sastri, J. said that article (article 19) enumerates certain freedoms under the cap- . tion \"right to freedom\" and deals with those great and basic rights which are recognized and guaranteed as the narural rights inherent in the status of a citizen of a free country.\n\nIn the United States of America, reliance upon natural law on the partof vested interests inimical to the economic freedom of man was destined to prove a persistent feature in the 19th century. In the second half of the 19th century, the ideas of natural law and of natural rights were resorted to in an attempt to curb State interference with rights of private property and freedom of contract. The ideas of natural law and natural rights were revived and endowed with fresh vigour .for that purpose('). Bv reference to natural rights of man, Courts in the United States often declared to be unconstitutional legislation for securing\n\n( 1 ) Sec \"Positive and Natural Law and their correlation in Interpretation of Modern Legal Philosophies\" Essays in Honour of Roscos Pound (New York Oxford University Press), (1947). (') See Lautcrpaeht, .\"Jnicrnational Law and Human Rights\", p. IOI.\n\n( 8) See Sir Frederic Pollock, ''The Expansion of the Common Law\" (1904), p. 128. (') See the passage quoted in ''the tJjStoq ~.F.rcedom and Other Essays~ by Lord Acton (1907), p. 587. . -\n\n( 1) [1954] S.C.R. 587, 596. (') See Haines, \"The Revival cl Natutal La•· Ccinccp\"aH, PP' 117-123.\n\nKESAVANANDA \"· XERALA (Mathew, J.) 817\n\nhumane conditions of work, for protecting the employment of women and children, for safeguarding the interests of consumers, and for controlling the powers of trusts and corporatins. This past history explains why natural rights have been regarded in some quarters with suspicion and why writers affirming the supremacy of a higher law ever the legislature or the constitution have spoken with impatience of the damnosa hereditas of natural rights. This idea of natural law in defence of causes both paltry and iniquitous has caused many to reject it with impatience. A great pracllical reformer like Jeremy Bentham, a great judge like Mr. Justice Holmes and a great legal philosopher like :Hans Kclsen-all believers in social progress--have treated the law of nature with little respect and have rejected it as fiction. Mr. Justice Holmes remarked : ''.The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neihbours as something that must be accepted by all men everywhere\" ( ) • Professor Kelsen considers the typical function of the natural law school to have been the defence of established authority and. institution~£ established governments, of private property, of slavery, of marriage(').\n\nDespite these attacks and the ebb and flow in its fortune, there has been a revival of the law of nature in the 20th century and there is no gainsaying the fact that the doctrine of the law of nature was the bulwark and the lever of the idea of the rights of mam embodied in the International Bill of Human Rights with a view to make the recognition of these rights more effective and to proclaim to the world that no\n\nState should violate these rights('). Whether you call these rights, natural rights or not, whether they flow from the law of nature or not, as I said, these are rights which belong to man as a rational and moral being. \"Man's only right, in the last analysis is the right ro be a man, to live as a human person. Specific human rights arc all based on\n\nman's right to live a human life('). Harold Laski said:(\")\n\n\"I have rights which are inherent m me as a member of so9ety; and I judge the state, as the fundamental instrument of !OCiety, by the manner in which it seeks to secure for me the substance of those rights. . . . Rights in this sense, are the groundwork of the state. They arc the quality which gives ro the exercise of el 'Holines,. \"Collected Legal Papm\", p. 312. (') See Kelscn, \"General Theory of Law and State\", pp. 413-418 •\n\n. ( 1) See Lautcrpacht, \"International Law and Hwnan Righ!S\", pp. 112.113.\n\n(') See ''Weapon• for Peace\" by Thomas P. Neill, quoted in 'The Natural Law\" by Rommncn, footnote at p. 243. ·\n\n( 1) Harold Laski, \"Grammar of Politics\" (New Haven) (1925), pp. 39-40.\n\n818 SUPREME COURT REPORTS [1973] Supp, s.c.R.\n\nits power a moral penumbra. And they are natural rights in the sense that they are necessary to go<id life.\"\n\nMr. Seervai submitted that article 33 of the Constitution which states that Parliament may, by law determine to what. extent the.Fundamental Rights, in their application to members of the Armed Forces cir\n\nforces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, would show that no natural rights are recognised by our Constitution, as otherwise, the limitation on the exercise of the Fundamental Rights by Parliament would be unwarranted. In support of this position, he has relied upon the observations of S.K. Das, J. in Basheshar 'Nath v. Commissi'oner. of lncome Tax, Delhi, etc.(') where he said:\n\n''There are, in my opinion, clear indications in Part III of the Constitutior itself that the doctrine of \"natural rights\" had played no part in. the formulation of the provisions therein. Take articles 33, 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natrural rights the Constitution could not have given power to Parliament to modify them\".\n\nI do not think that it was the contention of Mr. Palkhivala llhat natural rights as such are enforceable by Courts without the backing of positiive law or that they are not liable to be limited in certain circumstances.\n\nThat all natural rights are liable to be limited or even taken away for common good is itself a principle .recognized by all writers on natural law. \"However, even though man's natural rights are commonly tertned absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Spccili' cally, the natural rights of man arc limited intrinsically by the end for\n\nwhich he has received them as well as extrinsically by the equal rights of other men, by his duties towards others\".(2 ) And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does not mean that there are no natural rights, or, that by and large, the Fundamental Rights are not ll recognition of , the natural rights. It only shows that Fundamental Rights like .natural rights are liable to be limited for the comn\\on good ·· of the' society.\n\nJohn Locke himself did not understand that natural rights were absolute and nowhere did he say so. In other words, because Parliament\n\n(') [1959] Supp. I S.C.R. 528, 605.\n\n(2) Sec Romcn, \"The Natural Law\" (1947), footnote 49, p. 2'B.\n\nKESAVANANDA v. KERALA (Mathew, J.) 819\n\ncan restrict the exercise of or even take away the Fundamental Rights of the military personnel or the\n\n0 police charged with the duty of maintaining peace by law, it does not follow that Fundamental Rights, by and large, are not a recognition of the basic human rights or that those rights are not liable to be limited by positive law for common good.\n\nNatural law cannot supplant positive law; positive law must provide the practical solution in the choice of one measure rather th!lll another in a given situation. Sir Frederic 1 Pollock said that natural justice has no means of fixing any ruk to terms defined in number or measure, nor of choosing one practical solution out of two or more which are in thcmslves equally plausible. Positive law, whether enacted or customary, must come to our aid in such matters. It would be no great feat for natural reason to tell us that a rule of the road is desirable; but it could never have told us whether to drive to the right hand or to the left, and in fact custom has settled this differently in different countries, and even, in some parts of Europe, in different provinces of one State.(')\n\nNor am. I impressed by the argument that because non-citi:i:ens are not granted all the Fundamental Rights, these rights, by and large, are not a recognition of the human or natural rights. The fact that Constitution does not recognize them or enforce them as Fundamental Rights for non-citizens is not an argument against the existence of these rights. It only shows that our Constitution has chosen to withhold recognition of these rights as fundamental rights for them for reasons of State policy. The argument that Fundamental Rights can be suspended in an emergency and, therefore, they do not stem from natural rights suffers from the same fallacy, namely the natural rigllts have no limits or are available as immutable attribues of human person without regard to the requirement of the social order or the common good.\n\nMr. Palkhivala contended that there are many human rights which are strictly inalienable since they are grounded on tihe very nature of man which no man can part with or lose. Although this may be correct in a general sense, this does not mean that these rights are free, from any limitation. Every law, and particularly, natural law, is based on the fundamental postulate of Aristotle that man is a political animal .and that his nature demands life in society. As no human being is an\n\n1slan~, and can exist by himself, no human right which has no intrinsic\n\nrelation to the common good of the society can exist. Some of the rights like the right to life and to the pursuit of happiness are of such a nature that the common good would be jeopardised if the body\n\n( 1 ) See Pollock, \"The Expansion of the Common Law\" U904), p. 128.\n\n820 SUPREME COU!lT BEPOJ.TS [ 1973] Supp. s.c.1..\n\npolitic would take away the possession that men naturally have of them without justifying reason. 'fhey are, to a certain extent, inalienable.\n\nOthers like the right of free speech or of association arc of such a nature that the common good would be jeopardised if the body eolitic could not restrict or even take away both the possession and the exercise of them: They cannot be said to be inalienable. And, even absolutely inalienable rights are liable to limitation both as regards their possession and as regards their exercise. They arc subject to conditions and lifnitations dictated in each cas~ by justice, or by considerations of the satety of the realm or the common good of the society. No society ha! e\\ler admitted than in a just war it could not sacrifice individual welfare for its own existence. And as Holmes said, if conscripts are nccess!try for its army, it seizes them and marches them, with bayonets in their rear to death('). If a criminal can be condemned to die, it is because by his crime he has deprived himself of the possibility of justly asserting this right He has morally cut himself off from the human community as regards this right(').\n\nPerceptive writers have always taken the view that human rights are only prima facie rights to indicate that tihe claim of any one of them may be overruled in spocial circumstances. As I said the most fundamental of the pre-existing right; s-the right to life-is sacrificed without scruple in a war. A prima facie right is one whose claim has prim\"\n\nfacie jpstification, i.e., is justified, unless there are stronger counterclaims in the particular situation in which it is made, the burden of proof testing always on the .counter-claims. To say that natural rights or hullilan rights are prima facie i; ights is to say that there are cases in which it is perfectly just to disallow their claim. Unless we have deli- . rute assurance as to the limits within which this may occur, we may have no way of telling whether we are better off with these prima facie rights han we would be without them. \"Considerations of justice allow us to make exceptions to a natural right in special circumstances as the same c(msiderations would require us to uphold it in general.(')\n\nOwing to the complexity of social relations, rights founded on one set of relations may conflict with rights founded on other relations. It is obvio\\ls that human reason has become aware not only of the rights\n\nd man ; as a human and civil person bua also of his social and economic rights, tbr instam:e, the right of a worker to a just wage that is sufficient to secure his family's living, or the right to unemployment relief\n\n' { 1) SCe Common Law, p. 43.\n\n(2) Sec Jacques Maritain, Man and State, p. 102. {') sec generally \"Justice and Equality\" by Gregory Vlastos in. \"S.Cial fYsticc\", pt 31 ed. by Richard B. Brandt.\n\nXESAVANANDA v. K.ERALA (Mathew, J.) !121\n\nor unemployment insurance, sick benefit~, social ecurity an.d othr just amenities, in short, all those moral nghts which are envisaged m Paro IV of the Constitution. But there was a natural tendency to inflate and make absolute, unrestricted in every respect, the familiar fundamental rights, at the expense of other rights which should counter-balance them. The economic and social rights of man were never recognised in actual fact without having had to struggle against and overcome the bitter opposition of the fundamental rights. This was the story of the right to a just wage and similar rights in the face of the right to free 'ffiutual agreement and right to private ownership.\n\nTo determine what is finally right involves a balancing of different claims. From an ethical point of view, all one can say is that particular rights are subject to modification in a given situation by the claims arising out of other rights or of the body of rights as a whole. Since no single right whether natural or not is absolute, claims based on any one right may be subject to qualifications in accordance with claims based on other rights or the requirements of the total order or way of life, namely, the principle of the common good('). It is significant to note that article 29(2) of the Declaration of Human Rights provides :\n\n\"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.\" ·\n\nIt shall be my endeavour to show in a subsequent part of this judgment how the general welfare of our democratic society requires li.mitation or even taking away of Fundamental Rights in certain circumstances.\n\nThe framers of our Constitution realised that the Fundamental Rights, like natural rights, were not absolute and it was because of this\n\nthat ey provided fur restrictions being imposed upon the exercise of these nghts by law. But it was impossible for them, or for that matter, for any .Prson, hwever, gifted they or he might be, to foresee the type of restntJons which woul.d be necessary to meet the changing needs of a society. Even men with the most prophetic vision could not have focescen all te. developments of the body politic in the future and the type of restrictions necessary upon the Fundan1ental Rights to meet them. . The question :ovhether a particular Fundamental Right should be tak.cn aay or .abndged for the common good of the society must be decided m the light of the experience of each generation and not by\n\n( 1 ) See Morri• Ginsberg, Justice in Society, p. 77.\n\n822 SUPREME COUllT REPORTS [1973) Supp. s.c.a.\n\nwhat was said or laid down at the time of the framing of the Constimtion. It would be asking the impossible to expect one generation ID plan a government that would pass through all the revolutionary changes in every aspect of life.\n\nLet us now see whether in the past the Parliament was justified in amending some of the Fundamental Rights and whether the far expressed by the counsel for the petitioner, that great catastrophic COilsequences will follow if the Fundamental Rights are permitted to abridged by constitutional Amendments is justilied.\n\nThe First Amendment made certain changes in article 15 whim deals with prohibition of discrimination on the ground of religioo, race, caste, sex or place of birth. Clause (3) of artitle 15 allowed the state to make special provision for women and children. A new clause was added by the Amendment which reads as follows :\n\n\"(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and edutionally backward classes <f citizens 0, r for the Scheduled Castes and the Scheduled Tribes.\"\n\nThis Amendment was necessitated on account of the decision of this\n\nCoun in the State of Madras v. Champakam( 1 ) w the effect that reservation of seats for backward classes, Scheduled Castes and Tribes in public institutions was invalid, as it would offend the Fundamental Rights guaranteed under article 29(2). When this Court said that the reservation of seats for these classes offended the Fundamental Right guaranteed under article 29(2), what option was left but for the Parliament to .enact the Amendment, for, social justice required discriminatory treatment in favour of the weoker sections of the people and in particular the Scheduled Castes and Tribes in order to promote their educational and economic interest anJ to give them a position of equality. It is possible to sympmhise with those who bewail the decision in the case as a 'self-inflicted wound'. But when a Bench of five Judges held so, not all the tears in the world can recall a word of what was written, hut only an amendment by Parliament, since the chance of the decision being overruled was remote and problematical.\n\nThe second and sixth clauses of article 19 were also amended by the First Amendment. Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Before the amendment, article 19(2) read :\n\n''Nothing in sub<lause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the\n\n(') [1951 J S.C.R. 525.\n\nKBSAVANANDA I/, KBBALA (Mathew, J.) 823\n\nState from making any Jaw relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which , undermines the security of, or tends to overthrow, the State.''\n\nAfter the amendment, the same clause reads :\n\n\"Nothing in sub-dausc (a) of clause (1) shall affect te operation of any existing law, or prevent the State fro~ 1.11ak.ing any law, in so far as such law imposes reasonable restnt10ns n the exercise of the right conferred by the said sub-clause m the mterest of the .... security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.''\n\nThis amendment was necessitated by the decision of this Court in Romesh Thapar v. State of Madras(') wherein it was held that the disturbance of public order did not come within. the expression \"undermines the security of the Suate.,, No douht, in State of Bihar v. Shail11 bala Devi(') this Court said that it clid not intend oo lay down in Romesh T hapar' s case that in J?O case will an offence against public order affect the security of the State, but that point is not of much interest in view of the Amendment. Wifeµ this Court held that the word 'public order' would not come witlilii llhe expression uundermines the security of State'', no option was left to Parliament but to make the Amendment. The words \"friendly relations with foreign States\" introduced a further abridgement of the freedom of speech but nobody would contend that maintenance of friendly relations with foreign States is unnecessary and that speoch which would prejudicially affect these relations should not be curbed even as England and America have done.\n\nThe 16th Amendment added after the words \"in the interests or' the words \"the sovereignty and integrity of India\" in clauses (2), (3) and (4) of article 19. This means that the Fundamental Rights to freedom of speech and freedom of assembly were abridged for the sake of maintaining the sovereignty and integrity of India. Freedom of speech is the matrix upon which all other freedoms are founded and nobody would deny that it is an essential feature of the Constitution.\n\nBu: that had to be damaged for the sake of a greater good, namely, the mamtenance of the sovereignty and integrity of India. And who would dare J?aintain that the amendment was unnecessary? These amendments illustrate that exigencies not visualized by the makers of\n\n( 1) fl950] S.C.R. 594.\n\n( 1) [1952] S.C.R. 654.\n\n824 SUPREME COUllT REPORTS (1973] Supp. s.c.a.\n\nthe Constitution would arise and that F\\mdamental Rights will have to be abridged for the commongood or for securing higher values.\n\nIt was because counsel. for the petillioner realised the necessity for amendment of Fundamental Rights in certain circumstances in such a way as to abridge them that he advanced the further contention that although Parliament should have the power to amend the Fundamental Rights, there is implied limitation upon its power to amend them in such a way as to damage or destroy their aore or essence, and that the Court must, in the case of each amendment, pass upon the question whether the amendment has destroyed or damaged the essence or the core of the_ right. Counsel said that if the task of adjudging what is \"reasonable restriction in the interest of public\" could be undertaken successfully by Court there is no reason why 1lhe Court could not undertake the task of finding the core or essence of a right and whether the amendment has damaged or destroyed it.\n\nMr. Secrvai for the State of Kerala submitted that no objective standard was suggested for the Court to decide wha~ is the core or asence of a right except the perception of the trained judicial mind and that whereas judicial review of the question whether a restriction imposed by a law is reasonable or not is based on tlhe objective standard of reason, there is no divining rod for the Court to locate and find the core of a right. He referred to the dissenting judgment of Holmes in Lochner v. New York(') and to the dictum of Patanjali Sastri, J. in State of Madras v. V. G. Row(2 ) and said that the concept of 'reasonable man', that latch key to many legal doors, or, 'reasonable. restriction in the interest of public' mentioned in clauses 2 to 6 of article 19 or \"reasonable restrictions\" in article 304(b) are objective in character, though there might be difference of opinion in a particular case in the application of the concepts; but the task of finding the core of a Funda-· mental Right is like the quest for the \"philosopher's stone\", and that the Amending Body will be left without chart or compass when it proceeds to make an amendment. Mr. Seervai furtlher 'submitted that our constitution-makers deliberately omitted the phrase 'due proces•' in article 21 I!:> avoid flirtation by Court with any gossamer concepts drawn from higher law philosophy to annul legislation and that. even in America, invalidation of law on the ground of violation of substantive due process has become practically obsolete.\n\nWhen a court adjudges that a legislation is had on the ground diat it is an unreasonable restriction, it is drawing the elusive ingredients for its conclusion from several sources. In fact, you measure the\n\n( 1) 198 U.S. 45.\n\n(') (1952) S.C.R. 5'J7.\n\nKESAVANANDA v. li!W.A (Mathew, J.) ll2S\n\nreasonaoleness of a restriction imposed by law by indulging in aa authentic bit of \"special legislation(')\". The words 'reason' and 'reasonable' denote for the common law lawyer ideas which the \"Civilians\" and the <;:anonists' put under the head of the 'law of nature'. Thus the law of nature may finally claim in principle, though not by name, the reasonable man of English and American law and all his works whicli are many\"(2). Lord Coke said in Dr. Bonham's case(') that the common law will adjudge an Act of Parliament as void if it is against common right and reason and substantive due process in its content means nothing but testing an act or legislation on the touchstone of\n\nrealOO. The reason why the expression \"due process\" has never been delined is that it embodies a concept of fairness which has to be decided with reference to the facts and circumstances of each case and also according to the mores for the time being in force in a society to which the concept has to be applied.\n\nAs Justice Frankfurter said, \"due process\" is not a technical conception with a fixed content unrelated to time, place and circumstances('). The limitations in article 19 of the Constitution open the doors to judicial review of legislation in India in much the same manner as the doctrine of police power and its companion, the due process clause, have done in the United Stares.\n\nThe restrictions that might be imposed by the legislature to ensure the public interest must be reasonable and, therefore, the Court will have to apply the yerdstick of reason in adjudging the reasonableness. If you examine the cases relating to the imposition of reasonable restrictions by a law, it will be found thar. all of them adopt a standard which the American Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In Municipal Committee v. The State of Punjab(') this Court said that due process clause has no applicallion in India and that a law cannot be struck down as constituting an unreasonable restriction upon Fundamental Rights merely because its terms were vague. The Court said that a law whose terms were vague would be struck down as violative of _du~ process in America but, nevertheless, the principle has no ap_Phatmn here because there is no \"due process clause\" in our Const:ttuuon. With great respect, I should think that this is not correct, as the concep~ ?f \"d_ue process\" enters into the meaning of reasonableness of restncttons m clauses 2 to 6 of article 19. In Collector of Customs v. Sampathu(0 ), Rajagopala Ayyangar, J. said that\n\n(') Sec Learned Hand, \"Bill of Rights\", p. 26.\n\n( 2) Sec History of the Law of Nature bv Pollock, pp. 57-59.\n\n( 3) 8 Rep. 107, 118(•). (') Sec foint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123.\n\n(') [1969] 3 S.C.R, 447, '453. .\n\n\n826 coUllT JlEPOllTS [1973] Supp. s.c.Il.\n\nthough the tests of 'reasonableness' laid down by clauses (2) to ( 6) of article 19 might in great part coincide with that for judging for 'due process' it might not be assumed that these are identica1, as the Constitution-framers deliberately avoided in this context the use of the expression 'due process' with its comprehensiveness, flexibility and attendant vagueness in favour of a somewhat more definite word 'reasonable'. In the light of what I have said, I am unable to understand how the word 'reasonable' is more definite than the words due process'. As the concept of 'due process' draws its nourishment from natural or higher law so also the concepts 'Of 'reason' and reasonableness' draw the juice for their life from the law of reason which for the common law lawyer is nothing but natural law(').\n\nIn Abbas v. Unior. of India(\") Hidayatullah, C.J. speaking for the Court said:\n\n\" ...... it cannot be said as an absolute principle that no law will be considered bad for sheer vgueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered\"\n\nWhere a law imposes a restriction upon a Fundamental Right which is vague in character, it would be struck down as unreasonable under clauses (2) ro ( 6) of article 19 for the same reason as an American Court would strike it down as violative of due process, viz., a person cannot be deprived of his Fundamental Right by a law whose command is uncertain and does not sufficiently indicate to the indiv~ dual affected by it how he could avoid coming within the mischief of the law. Our Constitution-makers, under the guise of testing the reasonableness of restrictions imposed by law on Fundamental Rights, brought in by the back door practically the same concept which they openly banished by the front.\n\nI am not dismayed by the suggestion that no yardstick i, furnished ta the Court except the trained judicial perception for finding the core or essence of a right, or the essential features of the constitution.\n\nConsider for instance, the test for determining citizenship in the United Stares that the alkn shall be a person of \"good moral character\" the test of a crime involving \"moral turpitude\", the test by which you determine the familiar concept of the \"core of a contract\", the \"pith and substance\" of a legislation or the \"essential legislative function'.' in the doctrine of delegation. Few constitution~!. -issues can be presented in black and white terms. What are essential features and non essential features of the Constitution ? Where does the core of a\n\n( 1) S<c Pollock, the Expansion 0£ Common Law, 108'109.\n\n\nKESAVANANDA ti. KE.l\\ALA (Mathew, J.) 827\n\nright end and the periphery begin? These are not matters of icy ttrtainty; but, for that reason, I am not presuadd . t? hold '.hat they do not exist, or that they are too elusive for JUd1c1al perception.\n\nMost of the things in life that are worth talking about are matters \" degree and the great judges are those who are most capable of discerning which of the gradations make genuine difference.\n\nNor do I think that all the provisions in the Constitution are equally essential. Gladstone said, the most wonderful work ever struck off at a given time by the brain and purpose of ma~ is the Constitution. of the United States of America. Lord Bryce said much the same thing when he observed tlhat it is one of the greatest contributions ever made to politics ; is a practical art. Yet it consists only\n\nof VII articles with the Amendments. A constitution need not partake 1hc prolixity of a code.\" And our Constitution could very well have dropped many of its provisions. Merely because all the provisions of\n\nthe Constitution have equal importance in one respect, namely, they are all embodied in one document, and can be amended only by the procedure prescribed in article 368, it does not follow that all of them are essential features of the dment in all other respects.\n\nBut the question will still remain, even when the core or the essence of a Fundamental Right is found, whether the Amending Jlody has the power to amend it in such a way as to destroy or damage the core. I have already \"'1id that considerations of justii::e, of the common good, or \"the general welfare in a democratic society\" might require abridging or taking away of the Fundamental Rights.\n\nI have tried, like Jacob of the Old Testament to wrestle all the night with the angel, namely, the tiheory of implied limitation upon the power of amendment. I have yet to learn from .what source this limitation arises. Is it because the people who were supposed to have framed the Constitution intended it and embodied the intention in an unalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson to which I have already eferred nd which was fully adopted by 'Dr. Ambedkar, the prmc1pal. architect .of our Constitution-and that is the only\n\ns:in? theory-I thm.k there 1:5 n? foundati1:1n for the theory of implied l1m1tations. W re It otherwise, m actual reality it would come to this : The rep; esentat1ves of some people-the framers of our Constitutioncould . bmd the whole people for all time and prevent th f chan th · al em rom gmg e const1tut10n structure through their .\n\nAnd what thi ed bou represental:Jves. . • is s sacr ness a t the basic structure f th C . tutmn ? Take the republican fonn of Government,\n\n0the esup=d\n\n828 suPBEME COUllT UPollTS [1973] Supp. s.c.1..\n\ncornerstone of .the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it. is the best form of government? Does not history show that mankind has changed its opinion from generation to generation as to the best form of government? Have not great philosophers and thinkrs throughout the ages expressed different views on the subject? _Did not .. Plato prefer the rule by the Guardians?\n\nAnd was the sapient Aristotle misled when he showed his proclivity for a mixed form of government? If there was no concensus yesterday, why expect one tomorrow?\n\nThe object of the people irt establi, hing the Constitution was to promote justice, social and economic, liberty and eciuality. The modus operandi to achieve these objectives is set out in Parts III and IV oi the Constitution. Both Part III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certrun aspirations whose fulfilment was regarded as essential to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights whlch they have recognized as inherent in every human being in this country. The task of protecting and realising these rights is imposed upon all the organs of the State, riamely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rig)its\n\nreected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV?\n\nI think not. Free and compulsory education under article 45 is certainly as important as freedom of religion under article 25. Freedoo:i from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be .given full implementation in all, circumstances whereas practical exigencies may sometimes entail some compromise in the implementation of the moral claims in Part IV. When you translate these rights into socio-political reality, some degree of compromise must always be present. Part IV of the Constitution translates moral claims into duties imposed on government but provided that these duties should not be enforceable by any Court('). The question has arisen what will happen when there is a conflict between the claims in Part IV and the rights in Part III and whether rhe State would be justified at any given time in allowing a compromise or\n\n( 1 ) Sec generally A. R. Blackshield \"Fundamental Rights & Economic Viability of the Indian Nation\", Journal of Indian Law Institute Vol. 10 (!~)\n\nI, 26-28. ' . .\n\nKESAVAN'ANDA v. KERALA (Mathew, J.) 829\n\nsacrifice the one at the expense of the other in the realisation of the goal of the Good life of the people. What is the rlation; hip between the rights guaranteed by Part III and the moral nghts m Part IV ?\n\nIn the State of Madras v. Champakam already referred to this . Cort held that the Fund~!Dental Rights being sacrosanct, the Direcuv.e Principles of State Policy cannot override them but must run as subsidiary to them. This view was affirmed by this Court in Quareshi v.\n\nState of Bihar('). S. R. Das, C.J. who delivered the judgment of the Court said that the argument that the laws were passed in the discharge of the fundamental obligation imposed on the State by the Directive Principles and therefore, they could override the restrictions imposed on the legislative power of the State by article 13(2) or that a harmoniDus interpretation has to be placed upon the provisions of the Act was not acceptable. It was held that the State should implement the Directive Principles but that it should do so in such a way that its laws do not take away or abridge the Fundamental Rights: as otherwise, the protecting provisions of Part III will be a mere rope of sand. In Golaknath Case, Subba Rao, C.J. said that Fundamental Rights and Directive Principles of State Policy form an intrgrated whole and were elastic enough to respond to the changing needs of' the society. There are observations in later cases of this Court that it is possible to harmonize Part III and Part IV.\n\nThe significant thing to note about Part IV is that, although its provisions are expressly made un-enforceable, that does not affect its fundamental character. From a juridical point of view, it makes sense to say that Directive Principles do form part of the Constitutional Law of India and they are in no way subordinate to Fundamental Rights.\n\nProf. A. L. Goodhart said :\n\n\" ...... if a principle is recognized as binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it. Thus, most of Dicey's book on the Bri:ish Con:titution is cocerned ':'ith certain general principles which Parliament recogruzes as bmding on it.\" (1 ) .\n\nEnforcement by a Court is not he re~! test of a law('). The conventions of English Constitution are not enforceable in a Court of law but they are, nevertheless, binding and form part of the constitutional law\n\n( 1) ( 1959) S.C.R. 629.\n\n( 2 ) See the passage quoted in\n\n1'Equal Protection Guarantee and the Right to Property under the Indian Constitution\", by Jagat Narain, International And Comparative Law Quarterly, Vol. 15, 1966, pp. 206-7.\n\n( 8 ) Sec \"A note on the theory of Law\", \"Law and the Constitution\" 5th cd p. 330 by Ivor Jennings. S3-36 S. c. India/73\n\n830 SUP1ll!ME COURT REPOllTS [1973] Supp. s.C.ll.\n\nof the land. The similarity between the constitutional conventions in England and Directiv, e Principles of State Policy in India cannot be disputed. ·\n\nThe only purpose of article 37 is to prevent a citizen from coming forward and asking for specific performance of the duties cast upon the State by the Directive Principles. But if a State voluntarily were to implement the Directive Principles, a Court would be failing in its duty, if it did not give effect to the provisions of the law at the instance of a person who has obtained a right under the legislation. As the implementation of the Directive Principles involves financial commitments on the part of the Government and depends upon financial resources, it was thought meet that no private citizen should be allowed to enforce their implementation. But nevertheless, when the State, in pursuance of its fundamental obligation makes a law implementing them, it becomes the law of the land and the judiciary will be found to enforce the law. What is to happen if a State were to make a law repugnant to the Directive Principles? Would the Court be justified in striking down the law as contrary to the Law of the Constitution or, on what basis will a coullicn between Part III and Part IV be solved?\n\nThe questions require serious consideration.\n\nThe definition of the word 'State' both for the purpose of Part III and Part IV is the same. Whereas article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from articles 38 to 51 of our Constitution are addressed to the 'State' as defined in article 12. That judicial process is also \"State Action\" seems to be clear. Article 20(2) which provides that no person shall be prosecl!ted and punished for the same offence more than once is generally violated by the judiciary and a writ under article 32 should lie to quash the order. In his dissenting judgment in Naresh v. $tale of Maharashtra(') Hid~Yatullah, J. took, the viw-I think rightly-that the judiciary is also \"State\" within the definition of the word \"State\" in article 12 of the Constitution(').\n\nFrankfurter, J. asked the question that if the highest court oi a state should candidly deny to one litigant a rule of law which it concededly woulcl apply to all other litigants in similar situation, ocruld it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws(')? In Carter v. Texas(') the\n\n\n[1955] I S.C.R. 1045.\n\n(') See Backus v. Fort Str<et Union Depot Co., 169 U.S. 557, 571; also Snowden v. Hughes, 321 U.S. I.\n\n(') 177 U.S. 442, 447.\n\nKESAVANANDA t/. UliLA (MaJhew, J.) 831\n\nCourt observed that whenever by any action of a St*, whether through its legislature, through its courts, or thrQUgh its executive or administrative officers, all persons of the African race are excluded, solely because of their race or colour, from serving as ...... jurors in the criminal prosecution of a person rJ. the Afrilcan race, the equal protection of the laws is denied.\n\nIf convicting and punishing a person twice for an offence by a judgment is equivalent to the \"State passing a law in contravention of the rights conferred by Part Ill\" for the purpose of enabling the person .to file a petition under article 32 to quash the judgment, I can see no incongruity in holding, when article 37 says in its latter\n\npar~ \"it shall be the duty of the State to apply these principles in making laws\", that judicial process is 'state action' and that the judiciary is bound to apply the Directive Principles in making its judgment.\n\nThe judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in .the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted t:p be so. It does not only 'seek' and 'find' the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement.\n\nBoth in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a geeal norm. 'Yhere the. courts are entitled not only to apply pre-extstmg substantive law m their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to gi v.e these judicial decisions tthe character of precedents. Within such a legal system, courts are legislative organs in exactly the same\n\nsene as the organ which is called the legislator in the narrower and ordmary sense of the term. Courts are creators of general legal norms ( 1). Lord Reid said : (')\n\n( 1 ) Sec Kclsen, \"General Theory of Law and State\" pp. 134-5 & 149-150.\n\n( 2 ) See the recent address of Lord Reid, \"The Judge as Law Maker\" (1972)\n\n12 J. S. P. T. L. (N.S.) 22, 29.\n\n832 SUPREME COURT llPGRTS [1973] Supp. s.c.L\n\n\"There was a time when it 'was thought almost indecent to suggest that judges make law-they only declare it. Th= with a taste for fairy-tales seem to have thought that in some Aladdin's Cave there is hidden the Common Law in all i111 splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. . . . But we do not believe in fairy tales any more.\" I do not think any person with a sense of realism believes today as Blackstone did thac the law declared by the courts has a platonic or ideal existence before it is expounded by judges. John Chipman Gray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver, not the one who originally wrote it(').\n\nIt is somewhat stlrange that judicial process which involves lawmaking should be called 'finding the law'. \"Some simple-hearted people believe that the names we give to things do not matter. But though the rose by any other name might smell as sweet, the hisr.ory of civilizatiOl!l bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment\" (2). Nobody doubts today that within the confines of vast spaces a judge moves with freedom which stamps his action as creative. \"The law which is the resulting product is rrOll: found, but made. The process, being legislative, demands the legislator's wisdom\"(').\n\nIt is relevant in this context to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the vision of a future where liberty, equality and justice would be meaningful ideals for every citizen. There is a certain air <i unreality when you assume that Fundamental Rights have any meaningful existence for the starving mi!Hons. What boots it to them to be told that they are the proud possessors of the Fundamental Rights including the right to acquire, hold and dispose of prQperty if the society offers them no charu:e or opportunity to come by these rights? Or, what boots it to the beggar in the street to be told that the Constitution in its majestic equality, holds its scales even and forbids by law both his tribe and the rich to beg in the street, to steal bread or sleep under the bridge? This is non to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more\n\n( 1) See \"Nature and Sources of the Law\" pp. 102, 125, 172. (') See M. R. Cohen, \"Law and the Social Order\" (1933), pp. 121-124. (') See Benjamin N. Cardozo, \"The Nature of the Judicial process\", p. 115,\n\nKESAVANANDA ti. K1U1ALA (Mathew, J.) 83'.\\\n\nintangible hopes of man's personal .self-£ulfilment. But in particular contexts, fundamental freedoms and rights must yield to mat~· rial and practical needs. Economic goals have an un.-contestabJe claim for priority over ideological ones on the ground that excelence\n\ncomes only after existence('). It is on! y if men exist that there can be fundamental rights. \"Tell an unprovisioned man lost in the desert that he is free to ear, drink, bathe, read. . . . . . . . No one is hindering him. For the attainment of most of these ends he might better be in prison. Umestraint without equipment is not liberty for any end which demands equipment ...... Unemployment is a literal unrestraint, a marked freedom from the coercions of daily toil but as destructive of means it is the opposi~ of freedom for ...... To contemporary consciousness it has become an axiom that there can be no\n\nfreedom without provi'sion(').\n\nThe twentieth century juristic thinking has formulated two Jura! postulates. They are (I) Every one is entitled to assume that the burdens incidental to life in sdeiety will be borne by society; (2) Every one is entitled to assume that at least a standard of human life will be assured to him; not merely equal opportunities of providing or attaining it but immediate material satisfaction(').\n\nThe concept of liberty or equality can have meaning only when men are alive today and hope to be alive tomorrow. \"One hates to\n\nthink how few Indians, for example, have any idea that their Constitution provides basic rights, let alone what those rights are or how they could be defended when violated by Government\"(').\n\nSo the ma.in task of freedom in India for the large part of the people is at the economic level. '\n\nRoscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the \"interest\" or \"claims\"\n\n( 1) See generally A. R. Blackshicld \"Fundamental Rights and Economic Viability of the Indian Nation'', Journal of the Indian Law Institute, Vol.\n\n(1968) I.\n\n(2) Sec Hocking \"Freedom of the Press\", pp. 55-56.\n\n(') See Roscoe Pound, \"Jurisprudence\" Vol. I, section 46 (Twentieth Century).\n\n(') Sec Carl J. Friedrich, Man and .His Government, p. 272,\n\n834 SUPREME cou.r JIEPOllTS [1973] Supp. s.c.a.\n\nor \"demands\" with which he ia concerned are de facto psychological phenomena which pre-exist and arc not merely the creation of. the legal order(').\n\nPound's proposals seem, in the last analysis, to be an attempt to implement the familiar thought that there should be a correspondence between the demands made by man in a given society at a given time and its law at that titp.e.\n\nThe scheme of interests should include, all the de facto claims actually made. This, of course, is not to say that every de facto claim or interest which finds a place in the scheme of interests will be given effect in all circumstances. Claims within a legal order which arc not necessarily mutually incompatible may nevertheless come into conflict in particular siruations. Indeed most of the problems in which the judgment of justice is called for arise from a conflict of two or more of such de facto claims, non~ of which can be given effect to completely without prejudice to the others. The scheme of interests, like the jural posl!Ulates, is a device for presenting to the mind of the legislator a rough picture of the actual claims made by men in a given society at a given time, to which justice requires them to give effect so far as posSible(2). And what arc the de facto claims crying aloud for recognition as interests for the millions of people of this country ? That can probably admit of only one answer, by those who have eyes to see and ears to hear. By and large. the rough picture of the actual claims made by the millions of people m this country and which demand recognition as interests proti:cted by law is sketched in Part IV of the Constitution. A judgment of justice is called for when these claims which call for recognition in law as interest conflict with other rights and interests.\n\nThat judgment has to be made by the dominant opinion in the community. For a Judge, tq serve as a communal mentor, as Learned Hand said,, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The court is not the organ intended or expected to light the way to a saner world, for, in a democracy, that choice is the province of the political branch i.e. of the representatives of the people, striving however blindly or inarticulately, towards their own conception of the Good Life.\n\nI~ is inevitable that there should be much gnashing of teeth when a society opts for change and breaks with its older laissez faire traditin, which eld before the ccs of both the rich and the poor a golden pnze for which each may strtve though all cannot attain it and which in particular provided the rich with an enchanting vision of infinite\n\n(') See Pound, 3 Jurisprudence, 5-24, esp. 1~21.\n\n( 2) See Julius S_tone, Human Law and Human Jwtice, pp. 269-270.\n\nKESAVANANDA \"· KERALA (Mothew, J.) 835\n\nexpansion, and switches on to a new social order where claims of individual self assertion and expansion arc sunatcd to the common good.\n\nTo sum up this pal'lt of the discussion, I think there arc rights which inhere in human beings because they arc human being&-whcthcr you call them natural righllS or by some other appellation is immaterial.\n\nAs the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gac unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution arc equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the Sratc by a citizen in a Court of law in ease the State fails to implement its duty but, nevertheless, they arc fundamental in the governance of the country and all the organs of the State, including the judiciary, arc bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them arc mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement; curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experi ence and its values. And, if Parliament, in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value ro the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted, that by and large the Fundamental Rights arc the extensions, permutations and combinations of natural rights in the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the oommon good. The source from which these rights derive their moral sanction and transcedental character, namely, the natural law, itself recognizes that natural rights\n\n836 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nare only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome one and whenever a question of constitutional amendment which will have the above effect comes up for consideration, Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the courts, as the courts cannot go intlo the validity of the amendment on any substantive ground.\n\nIn the light of what I have said, I do not think that there were any express or implied limitntions upon the power of Parliament to amend the Fundamental Rights in such a way as to destroy or damage even the core or essence of the rights and the .24th Amendment, by its language, makes it clear beyond doubt. The opening words of the amended a; rticle should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied lim.ital:ion upon the power of amendment. Further, the amended article 361\\ puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power incl.udes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, tlhat the assent of the President to a bill for amendment is compulsory and that nothing in article 13(2) will apply to an amendment under the article.\n\nArticle 368, as it stood before the Amendment, conferred. plenary power to amend all the provisions of the Constitution and the 24th Amendment, except in one respect, namely, the compulsory character of the assent of the President to a bill for amendment, is declaratory in character. To put it in a different language, as the majority decision in the Golaknath case(') negatived the constituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which, according to the Amending Body, was wrong, the Amending Body passed the amendment ro make it clear that the power to amend is locaned in the article, that it is a constituent power and not a legislative power as held by the majoritv decision in the Golaknath case, that the power is plenary in charactr and that article 13(2) is not a bar tlo the amendment of the Fundamental Rights in such a way as to take away or abridge them under article 368. That the object of the amendment was declaratory in character in clear from the statement of Objects and Reasons for the Amendment. That says that the Amendment was made to provide expressly that the Parliament has competence, in the exercise of its\n\n\nKESAVANANDA I/, KERALA (Mathew, J.) 837\n\namending power, to abridge or take away the Fundamental .Rights since the majority in the Golaknath Case held that the Parliament !\\ad no such power.\n\nAs I have already . said, the Amendme?t has added nGthing to the content of the arucle except the reqwrement as to the compulsory character of the asent of th~ President t~ the bill for amendment. That an Amending Body, m the exercise of it.s power to amend, if the power to amend is P.lena~! c:m make . an amendment in order to make clear what was implicit m the article and to correct a judicial error in the interpretation of the article appears to me to be clear.\n\nMr. Palkhivala contended that as the power to amend under article 368 as it stood before the 24th Amendment was itself limited, the power to amend that power cannot be utilised to enlarge the amending power.\n\nThere is nothing illegal or illogical in a donor granting a limited power coupled with a potential power or capacity in the donee to enlarge the limit of that power according to the discretion of the donee. It is a mistake to suppose even on the assumption that the actual power to amend under article 368 as it stood before the 24th Amendment was limited, the Amending llody cannot enlarge the limit of the power. As I said, even if i~ be assumed that the actual power for amendment under the article was limited, the article gave the Amending Body a potential power, to enlarge or contract the limit of the actual power. The potential power when exercised by the Amending Body makes the actual power either enlarged or contracd. The wording of proviso to article 368, viz., \"If the amendment seeks to make any change.. .. .. ( e) in the provision of this article\" makes it clear that the object of the amendment of the article is to make change in article 368. On what basis is the assumption made that by making change in the article, the area of the power, if actually limited, cannot be enlarged? I must confess my inability to perceive any limit as to the character of the change that might be made in the amending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case .that the article can be so amended and a Constituent Assembly convoked to amend the Fundamental Rights.\n\nIs such an amendment of article 368 possible if the argument of the petitioner is right than the power to amend the amending power cannot be exercised so as to change the locus or tfie width of the amending power? The only thing required would be that the a'?ending powe~ shuld be amended in the manner and form prescribed by the article itself. And there is no case that that has not been done.\n\n838 SUP1'ME oot REPOl.TS [1973] Supp. s.c.R.\n\nCou11BC! also submitted that the opcratipn of' article 13(2) wu not liabl~ to be taken away by the amendment. He said that ijlthol, llh there was no a:pre11 provwon in article 13(2) or in article 368 which prevented the operation of article 13(2) being taken away, there wu implied limitation for the reason that, i£ the Fundamental RightJ could not have been amended in such a way as 1IO take away or abridge them because of the inhibition c<>11tained in article 13(2), that inhibition could not have been removed indirectly by amending article 368 and article 13(2). In other words, the argument was, as the Word 'law' iii article 13(2) included an amendment of the Constitution, that was an express bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them and, therefore, the Amending Body cannot do, in two stages what it was prohibited from doing in one stage. Even on the assumption that the word 'law' in article 13(2) included an' amendment of the Constitution, I think there was nothing which prevented the Amending Body from amending article 368 and article 13(2) in such a way as. to exclude the operation of article 13(2) as there was no express or implied prohibition for doing so.\n\nThe next question for consideration is whether the 25th Amendment is valid. By that Amendment, article 31 (2) was arnnded atlll the amended article says that no property shall be .acquired save 1w . the authority of law which provides for acquwtion or req11isition qf the prj)perty for an 'amount' which may be fixed by sUch law or w.hich may .be determined in accordance with such principles and gi, vcn in such manner as maY be specified in such law and that no suc:h law shall be i:alled in question in any. Court on the grollnd, th; it the pomtt so fixed or dt'termined is not adequate or that the ,-whole <lt any part <J. slich lllllOUnt is to be given otherwise than in .eash .. An exception has been made in the case of acquisition of rty .belonging to .ii cducatiGnal institution established and administitred. 1by a minority referred ·.txi in clause ( 1) of article 30 by pmvidingi .chat thC State shall ensure that the amount fixed by or detetmined. urtdet1 the law•· fat acquisition of such property must be such as would not restrict !Jiff abrogate the right guaranteed under thatt clause. . Clause (2B} to ' article 31 provides for dispensing with the application of articlcr 19(1)(£.) to any law as is referred to in sub<:lausc (2) of article 31, A new article. was also inserted viz., article 31C whkh providet that notwithstanding anything contained in article 13, nci. law giving effect\n\nto the policy of the State llOWards sccuriiig the principles specified in clause (b} or clause ( c) of article 39 shall be deemed to be void on the ground that. it is inconsistent with or takes away or abridges any of the right!S conferred by articles 14, 19 and 31 ; and no faw containing a declaration that it is for giving elfc.ct to such policy shall.\n\nKESAVANANllA v. Kl!lALA (Mlllhew, J.) 83!>\n\nbe called in question in any court on the ground that it docs not give effect to such policy : Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent.\n\nMr. Palkhivala contended that the Fundamental Right to acquire, hold and dispose of property is an essential feature of the Constitution,. that there can be no dignified citizens in a State unless they have the right to acquire and hold property, that the right to acquire and hold property i~ essential for the enjoyment of all other Fundamental llrights as it is the basis on which all other rights are founded, that the Fundamentil Rights guaranll:ed to the minorities would become a rope of sand if the right to i hold and dispose of property can be taken away and as power to a2quire property for an 'amount' inadequate or illusory is given to. the Parliament or State Legislature, that would damage the essence or core of the Fundamental Right to property. Counsel said that if the core or the essence of the right to hold property could be ta.ken away by a law, the right to freedom of press under article 19(1)(a) would become meaningless as a publisher could be deprived of his printing press by paying him a nominal amount and that the fundamental right of the workers to form associations and of the religious denominations to establish and maintain institutions for religious and charitable purposes would become empty wbrds.\n\nThe framers of the Constitution regarded the right to acquire and' hold property as a Fundamental Right for the reason that a dignified human life is impossible without it. Whether it is the weakest of all' Fundamental Rights would depend upon the question whether tqerc is a hcirarchy of values among the Fundamentil Rights. The concept of preferred freedoms is an indication_ that some judges are in- . dined to put the right to hold property low in the scale of values.\n\nThe. exponents of natµral law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists arc agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property isthe necessary consequence and condition of liberty. Liberty and property demand and support each other.\n\nThe doctrine of natural rights has exercised a profound in8uence upon the conception of private property. In its moo: modem form\n\n:840 SUPREME COURT REPORTS (1973] Supp. s.c.R .\n\n. it insists that property is indispensable to man's individual development and attainment of liberty, Without dominion over things, 111an is a slave('). ·\n\nThe most that we,, can claim, as a general principle applicable to all stages of social development, is that withou~ some property or capacity for acquiring property there can be no individual liberty, and that without some liberty there can be no proper development of\n\n<:haracter('~· .\n\nPersans without property en; oy no sense of background . such as would endow their individual lives with a certain dignity. They exist •On the surface; they cannot strike roots, and establish permanency(').\n\nIn short, the concept of property is not an arbitrary ideal but is Jounded on man's natmal impulse to extend his own personality.\n\nIn the long run, a man cannot exist, cannot make good his right to :marriage or found a family unless he is entitled to oW!lership through .acquisition of property.\n\nHowever, it is a very common mistake to speak of property as if it were an institution having a fixed content constantly remaining the same; whereas in reality, it has assumed the mQSt diverse forms\n\n.nd is still susceptible to great unforeseen modifu:ations.\n\nThe root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distingui•h at least three forms of private property : ( i) property in -durable and non.Curable consumer's goods;\n\n(ii) property in the means of production worked by their OW!lcrs; (iii) property in the . means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind 1n the ltands of a relatively narrow class. While the first two forms of property can be justified as necessary conditions of a free and purposCful life, the third cannot. For this type of property gives power not only -over things, but through things over persons. It is open to the charge made that any form of property which gives man power over man is not an instrument of freedom but of servitude(').\n\nThe foundation of our society today is found . not in fu11etion1, but in right1; that rights arc not deducible from the discharge of\n\n'321.\n\n{ 1) Sec John Moffatt Mccklin, \"An Introduction to S<icial Ethics\", .pp. 302-\n\n(') See Rashdall, \"Property: Its Duties and Rights\", pp. 52-64.\n\n( 1) Holland, \"Property : Its Duties and Rights\", pp. 183-192.\n\n( 4) Sec Professor Morris Ginsberg, \"Justice in Society\", p. 101.\n\nltBSAVANANDA \"· llJtALA (Mathew, J.) 841\n\nfunction, so that the acquisition of wealth and the enjoyment of property are contingent upon the performance of services but that the individual enter• the world equipped witli rights to the free disposal. of this property and the pursuit of his economic self-interest, and that: these rights are anterior to, and independent of any service which he: may render. In other words, \"the enj.oyment of property and the\n\ndirection of industry are considered to require no social justification\"(').\n\nThe framers of our Constitution made the right to acquire, hold and dispose of property a .Fundamental Right thinking that every: citizen in this couritry would have an opportunity to come by a modi-· cum of that right. Therefore, as the learned Attorney General rightly contended any defence of the right to own and hold property must essentially be the defence of a well distributed proipcrty and not an.\n\nabstra~ right that can, in practice, be exercised only by the few.\n\nArticle 39(b) provides that the State shall diirect its policy towards securing that the ownership and control of the material resources of. the community are so distributed as best to subserve the common good_ Article 39(c) states that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.\n\nSir Ivor Jennings has said than the propositions embodied in these sub-articles are derived from article 45 of the Irish Constitution and: that in turn is based upon Papal Bulls(').\n\nHis Holiness Pope Paul VI, following the previous encyclicals on the subject has said : (3)\n\n\"To quote St. Ambrose : \" .... the world is given to all, and' not only to the rich\". That is, private property does not constitute for anyone as absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does not need, when others lack necessities. In a word, 'according to the tradi-·\n\ntional doctrine as found in the Fathers of the Church and the great theologians, the right to property must never be exercised to the detriment of the common good.\"\n\n/ ( 1) See Richard Henry Tawney, \"The Acquisitive Society\", .Chapter II & IV. ( 2) Sec Sir Ivor JenningS, \"Some Characteristics of the Indian Constitution11 ~31~. '\n\n( 3) See Encyclical Letter of Pope Paul VI (1967), \"On the Development of Peoples\", pp. 18, 58, footnote at p. 58.\n\n2.tl SUPIU!ME OOUJ.T UPOUS ( 1973] Supp. S.C.L\n\n!'God has intended the earth and all that it contains for the use of all men and .an peoples. Hence, justice, accompanied by charity, must so regulate the distribution of created goods that they are actually available to all in an equitable measure.'.'\n\n\"Moreover, all have the right to assess a share of earthly goods sufficient for themselves and their famils.\"\n\n\"In extreme necessity all goods are common, that is, are .to be shared\"\n\nThe basic institution of property is not to be confused with particular forms it may assume in different ages or regions.\n\nThes~ will be justified according as they continue to show that they are achieving the general aim of ministering to the good of human life. Natur.al right may also be violate4 under a regime in which a great number, although theoretically free, are in practice excluded from . the possibility -0f acquiring property (1).\n\nWhen property is acquired for implementing the directive principles under article 39(b) or 39( c ), is there an ethical obligation upon the State to pay the full market value? In all civilized legal systems; there is a good deal of just expropriation or confiscation without any direct compensation. Indeed, no one1 in fact, had the courage to argue that the State has no right to deprive an individual of property to which he is so attached that he refjlses any money. for it. Article 31 (2A) proceeds on the assumption that there is no obligation upon the State to pay compensation to a person who is deprived of his property.\n\nWhat does it matter to the person who is deprived of his property whether after . the deprivation, the State or a Corporation owned or controlled by the State acquires title to it? Every acquisition by State pre-supposes a deprivation of the owner of the property. If when depriving a person of bis property, the State is not bound to pay compen- sation, what is the principle of justice which demands that. be should be compensated with full market value merely because the title to the property is transferred to State or the Corporation as aforesaid after the deprivation.\n\nNo absolute principle of justice requires it.\n\nThe whole business of the State : depends upon its rightful power to take away the property of Dives in the form of taxation and use it to supp<>rt Lazarus. When slavery was abolished in America, by law, the owners had their property taken away. The State did not consider itself ethically bound to pay them the £ull market value of their slaves. It is certainly a grievous shock\\ to a community to have a large number of slave owners; whose wealth made them\n\n( 1 ) See William J. McDonald, \"The Social V.Uue of Property according to :St. Thoma1 Aquinas\", p. 183. ·\n\nICESA\\'ANANDA \"· KUALA (Mathew, J,) 843\n\nleaden of culture, suddenly deprived of their income, Wther it was desirable for the slaves themselves to be suddenly taken away from their master. and nit adrift on the sea of freedom without compensation is another matter. \"When prhibition was introduced in America, there was virtual confiscation of many millions of dollars' worth of property. Were the distilliers and brewers entitled to compensation for their l01ses?. The shock to the distillers and brewers was not as serious as to others e. g., saloon keepers and bartenders who did not lose any legal ptoperty since they were only employees, but who found it diffi .. cult late in life to enter flew employments. These and other exam pies of justifiable confiscation without compensation arc inconsistent with the absolute theory of private property\"(').\n\nAn adequate theory of social justice should.enable one to draw the line between justifiable and unjustfiable c:ises of confiscation.\n\nThe intention of the framers of the Constitution, when they drafted article 24 [the original article 31(2)], can be seen from the speech of Pandit Jawaharlal Nehru in the Constituent Assembly on September 10, 1949(2).\n\n\" .... Eminent lawyers have told us that on a proper construe tion of this clause, normally speaking, the judiciary should not and does not come in. Parliament' fixcs cithcr the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution.\"\n\nShri K. M. Munshi (who spoke in the Constituent Assembly on the draft article 24 on September 12, 1949, observed :(')\n\n\"We find on the English Statute Book scveral Acts, the Land Acquisition Act, the Land Clauscs Act, thc Housing Act; in all of which a varying basis of compensation has becn adopted to suit not only to the naure of the property but also the purpose for which it is to be acquired. Parliament therefore is the judge and master of deiding what principles to apply in each case.\"\n\nIn the State of West Bengal v. Bela Baneriee('), the expectation entertained by the Constituent Assembly that the Court will not interfere with the fixation of compensation by Parliament was belied. The\n\n( 1 ) Sec generally M. R. Cohan, \"Property and Sovereignty\", Law and Social Order, p. 45 onwards.\n\n( 2) Constituent Assembly Dcbztcs, Vol. IX, 1193. (') Constituent Assembly Debates, Vol. IX, p. 1299. (') (1954) S.C.R. pp. 558, 563-4.\n\n844 sUPRl!Mll OOUlt lU!PQB.TS [ 1973} Supp. s.c.11.\n\nCourt said in that case that the owner of the prop.orty expropriated must be paid .the. just equivalent of what he has been depnved of and that Within the limits of this basic requirement of full indemnification of the expropriated .owner, the Constitution allows free play to the legislative judgment a9 to what principles should guide the determination of the amoullll: payable.\n\nIn order to bring article 31(2) in conformity with the clear inten tion of the framers of the. Constitution. the Fourth Atnendment to the Con•titution was passed and it came into effect on April 'll, 1955.\n\nAt the end of article 31(2) the following words were introduced by the Amendment : \" .. and no such law shall be called in question in any Court on the ground that th~ compensation provided by the law is not adequate.\" The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector('). Subba Rao, J. (a~ he then was) said that the faot that Parliament used the same expressions namely, 'compensation' and 'principles' as were found in article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bel, a 1laner jee's Case and that it follows that a Legislautre in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the pur pose of ascertaining the 'just equivalent' of what the owner has been deprived of.\n\nIn Union of. India v. Metal Corporatitm( 2), it was laid down that to provide written down value of a machinery (as it was understood under the Income Tax Act) was not in compliance with article 31(2) because it did not represent the just equivalent of the machinery, mean ing thereby, the price at or about the time of its acquisition. Subba Rao, j. said that the law to justify itse1' has to provide for the payme.nt of a 'just equivalent' to the land acquired or lay down pnnciples which will lead to that result.\n\nTwo years later, in Gujarat v. Shantila/(8 ), this 0ourt overruled the decision in e Metal Corporation Case and Shah, J. observed that if the quantum of compensation fixed by the Legislature is not\n\nliab~ to be canvassed before the Court on the ground that it is not a just equ'ivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent.\n\n( 1) (1965) 1 S.C.R. pp. 614, 626.\n\n( 2 ) {1967) 1 S.C.R. p. 255.\n\n( 8 ) (1969) 3 S.C.R. 341.\n\nKESAVANANDA ti. KERALA (Mathew, J.) 845\n\nIn the Bank Nationalisation Case('), the majority decision virtu ally overruled the decision in Gujarat v. Shanti/al. The majority was of the view that even after the Fourth Amendment 'compensation' meant \"the equivalent in terms of money of the property compulsorily ac quired\" according to 'relevant principles' which principles must be appropriate to the determination of compensation for the particular class of property sought to be acquired.\n\nIt was in these circumstances that the word 'amount' was substituted for 'compensation' in the sub.article by the 25th Amendment.\n\nIt was submitted on behalf of the petitioner that the word 'amount' implies a norm for fixing it and_ that at any rate, when principles for fixing the amount are referred to, the principles must have some rele vancy to the amount t; l, e fixed.\n\nThe whole purposL of the amendment was to exclude judicial review of. the question whether the 'amount' fixed or the principle laid down by law is adequate or relevant.\n\nMukherjea, C. J. said in Rai Sahib Ram ]awaya Kapur v. State of Puniab('}, that the Cabinet, enjoying as it does, a majority in the legislature concentrates 'in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all for\n\nmulatai by them.\n\nMnch the same sentiment wa.s: expressed by Hegde, J.(8) :\n\n\"In a Cabinet form of Government, the executive is expected to reflect the views of the Legislature. In fact in most matters it gives the lead to the Legislature. However much one might deplore the ''New Despotism\" of the executive, the very complexity of the modern society and the demand it makes on its government have\n\nset in motion forces which have made it ab!olutely necessary for the legislatures to entrust more and more powers to the executive.\n\nText book doctrines evolYed in the 19th century have become out of date .... \" When the Cabinet formulates a proposal for acquisition of pr<>- perty, it will have the relevant materials to fix the amount to be paid to the owner or the principles for its fixation. Several factors will have to be _taken into account for fixing the amount or laying down\n\n\n( 2) (1955) 2 S.C.R, 225, 237.\n\n( 8) see Sita Ram Bishambhar Dayal v. Stat< of U. P. (1972), 29 Sales Tax Cases, 206. . 54-36 S. C. India/73\n\n846 SUPRl!ME COURT llEPdRTS [1973] Supp. s.c.a.\n\nthe principles; the . riature of the property sought to be acquired,\n\nthe purpose for which the acquisition is being made, the real investment of the owner excluding the fortuitous circumstances like uneam• ed increment and also marginal utility of the property acquired to the owner. Principles of social justice alone will furnish the yardstick for .fixing the amount or for laying down the principles. The proposal\n\nbecomes embodied in law,' if the Parliament\" agrees to the Bill embedying the proposal. The whole point is that the .fixation of the amount or the laying down of the principle for .fixing it is left to the absolute discretion of the Parliament or the State Legislatures on the basis of consideration of social justice. That the fixation is in the absolute discretion of. Parliament or the State Legislature is further made clear ' when it is laid down that ''no such law sh'all be called in question in\n\nany Court on the ground that the amount so fixed or determined is not adequate.\" If the Parliament or State legislature can fix any amount, on consideration of principles of sociaL justice, it .:an . also formulate the principle for fiXing the amount on the very same consideration. And the principle of social justice will not furnish judicially manageable tandards either for testing the adeq~ of the amount or the rekvancy of the .principle. . ' ·\n\n The article as Mn ended provides no 'norm for• the Court to test the adequacy of the amouni or the relevancy oi the. principle.. Where . as the word 'compe11sation'; even' after the Fourth .Amendment, .wp thought to giw such a norm, namely, the just' equivalent in maricy of the property acquired or full indemnification of the owner! the word 'amount' conveys no idea of anY µo!T\\1-. It supplie~ no yard-sti~.\n\nIt furnishes no measuring rod.' '11ie neutral word 'amount' was deliberately chosen 'for tht- 'plll'pOl!e. I. ain lm!tblt tO tlndci'stmid the purpose in substitllling the word ':lnlOurit' for' the word ''compeilstion' in the sub ariide ilitlcss It .be 'to a Cf rive . ihe Coi1rt. of any yardstick or norm for determiiiing the adequacf tli-c ount and the telc\\'ancy of the principles , fixed by law. I shoU!d 'have tholight that this coupled with the express provision precluding the Court from going into the adequacy of the amount fixed , or determined sliould put it beyood anydoubt that fixation of the amount or determination of the principle for fiXing it is a matter for the Parliament alone and that the Court has no say in the mattr.r. ·\n\nThis Court said in Shantt1al's Case(')!'. . . . . \" .... ii does not however mean that' ; omethlng Jiir:~ or dttermined by the application of specified principles whlcn is ilhoory\"\" or can in po sense be regarded as compensation must, hF\"uphel~ _ by the courts, for, to do so, woul!'l be to grant a cll'lrtct -~£ arbt ·. trariness.'' - · ·\n\n\nXESAVANANDA v. KUALA (Mlllhew, J.) 847\n\nThese observations were made with reference to the sub-article as it stood before the 25th Amendment, namely, before the substitution of the word 'amount' for the word 'compensation' in it Even if the decision of this Court in Shantilal' s Case is assumed to be correct, what is its relevancy after the substitution of the word 'amount' in article 31 (2) as regards the jurisdiction oE the Court to test the adequacy of the amount on the ground of arbitrariµess:\n\nI do not propose to decide nor is it necessary for the purpose of adjudg'ing the validity of th() 25th Amendment whether a law fixing an amown which is illusory or which is a fraud on the Constitution, can\n\nbe struck down bv Court. It is said that the instances in which the Court can interefere to test the adequacy of compensation or the relevancy of the principles for determination of compensatim had been laid down in the Bank Nationalisation Case and when the 25th Amendment did not make any change in the clause, namely, \"no such law hall be called in question in any court on the ground that the amount so fixed. or determined is not adequate'' but retained it in its original form, the only inference .is that the Parliament approved the interpretation plaeed upon the clause by this Court and, therefore, the Court has power to examine the question i.vhether the 'amount fixed by law is adequate or illusory or that the principles for fixation of the amount are relevant. I am not quite sure about the nature of the presumption when the word \"compensationu has, been deleted from the sub-article and the word \"amount\" substituted.\n\nIn Thr. R01al Court Derby Procelain Co., LtJ. v. Raymo11d Russel (1) Denning, L. J. said : ' ·\n\n\"J do not believe that whenever Parliament re-enacts a provision of a statute if thereby gives statutory authority to ¢very erroneous interpretatioli' which hasbeen put upon it; The true view is that the Court will be slow to overrule a previous decision on the interprdation of a statute i1ien it has 'long been. acted on, and it will be more than mually slow to do so when Pailiament 1'as, since the decision, re-enacted the statute in the samertcrms.\"\n\nSee also the speech of Lord Raddifl'e in Ga/Jowayv .. Galloway(•).\n\nThe presumption, if there is any, is always subject to awinttion to the\n\nontrary.\n\n. Counsel for the petitioner argued that as article. 19(i) (f) s .. tili retained it would be paradoxical if a law could provide for acq~1s1t1on or requisition of property on payment . of madequte or illusory\n\namount . He. said, even if the amount given .1s not the JUSt equivalent\n\n( 1) [1949] 2 K.B. 417 at 429.\n\n(') [ 1956] A.C. 299.\n\n848 SUPREME COURT RE POii.TS [1973] Supp. s.c.11..\n\nin money of the value of the property acquired, it must at least be an amount having reasonable relation to its value as Parliament cannot be deemed to have intended by the Amendment to enable a law being passed fixing an unreasonably low amount as the right to acquire and hold property is still a Fundamental Right under article 19. If we are to import into the concept of 'amount' the implication of reasonableness with reference to the , market value of the property, it would immediately open the door to the justiciability of the question of the adequacy of the amount fixed or determined which the sulxirticle expressly says it is not open to the Court to go into.\n\nThe Fundamental Right to property is attenuated to a certain extent. But it is not wholly taken away. The right that the property 'could be acqu'ired only under a law fixing an amount or the principles for determining it and for a public purpose would still remain. This Court can strike down an amendment of the Constitution only on the ground that the amendment was not made in the manner and form required by article 368, or that the amendment was made in violation of some express or implied limitation upon the power of amendment.\n\nA constitutional amendment which provides for the law fixing tile 'amount' or the PTincip!es for determining the amount instead of compensation or the principles for its determination and which deprives the Court of the power of judicial review of the question whether the amount or the principles fixed by law is adequate or arc relevant,\n\ncannot be adjudged bad on the ground of some invisible radiation from the concept that the right to acquire, hold or dispose of property is Fundamental Right.\n\nIf full compensation has to be paid, concentration of wealth in tile form of immovable or movable property will be transformed into concentration of wealth in the form of money and how is the objective underlying article 39(b) and ( c) achieved by the transformation ? And will there be enough money in the coffers of the State to pay full compensation?\n\nAs the 24th Ame9dmcnt which empowers Parliament to take away or abridge Fundamental Right has been held by me to be valid, I do not think there is any conceivable basis on which I can strike down the amendment to article 31 (2). Nor can I read any implication in to the word 'amount' and say that it must be reasonable as that would imply a standard. Having regard to the neutral and colourless character of the word 'amount' and the express provision excluding judicial review of the question of the adequacy of the amount, the question of reasonableness of the amount or the relevancy of the principle is entirely outside the judicial ken.\n\nJWAVANANl>A fl. KUALA (Mathew; J.) 849 .\n\nNow I tum to the question of the validity of article 31C.\n\nCounsel for the petitioner slibittcd that there is a fundamental distinction between. amcnd1Dg Fundamental Rights in such a way as to abridge 'or. take them . away and making ah amendment fu the Con-. stitution which enables Parliament inits legislative capacity and the legislatures of the States to pass a Jaw vjolating Fundamental RightJ and making it valid. According to counsel what has been done by article 31C is to enable Parliament and State Legislatures to make Constitution-breaking laws. d put the~ . beyond challenge in any Court with the result that laws which would be. void as contravening the .Fundamental Rights are deemed, by a fiction .of law, to be not void and that is a n:pudi.ation of the suprcn1acy of the Pinstitution which is an essential feature of the Con8ti.tution. Counsel further said the Directive Principles which were intended by the Constitution-makers to run . as subsidiary to Fundamental Rights have been made parainount to them and laws to implement the Directive Principles specified in article 39(b) and ( c) arc made immune from attack, even if they violate Fundamental Rights .. µnder articles 14, 19 and 31. He .further said that a declaration by Parliament or the. State legislature that a law is to give diect to the policy of the State towards securing the principles specified in article 39(b) or ( c) has been made lina1 which, in effect.\n\nmeans that Parliament and State legiSlaturcs can pass any laws in the exercise of their legislative power, whether they give effect to the policy of $tate towards securing the Directive Principles contained in article 39(b) and (c) or not, and get immunity for those laws from attack under articles 14, 19 and 31.\n\nI should have thought that article 31C is a proviso to article 13(2) in that .it enables Parliament or State Legislatures to pass laws of a particular fypc which would not be deemed to be void even if they violate the provision of articles 14, 19 and 31.\n\nI have no doubt that 'law' in article 31C can onlv mean a law passed by Parliament or the State legislatures. The word must take its colour from the context.\n\nThe makers of the Constitution imposed a ban by article 13(2) upon the 'State' passing a law in contravention of the rights conferred by Part Ill. If 24th Amendment which enablb Parliament to make an amendment of the Fundamental Rights in such a .way as to take away or abridge them is valid, what i& there to prevent' _Parliament from enacting a constitutional amendment making it pol!Siblc for Par- 'IJiameht .or State legislatures to pals laws for implementing the Directive. Pii, nciples specified in rticle 39(b) and 39( c) \"Yhich wuld be inilnune from attack on the ground that those laws v10late articles 14, 19 and 31? Is it not open to the Amending Body to enact an amendment\n\n850 SUPUll<IE .COUllT REPllllTll [1973] S11pp. s.c.a.\n\nsaying in effect that although all laws passed by Parliament and State legislatures, which violate fundamental rights are void, laws passed by Parliament and State legislatures for giving effect to the policy of the State towards securing directive principles specified in article 39(b) and (c) would not be void, even if they contravenesome of th, e fundamental rights, namely, those under articles 14 .• 19 and 31? Arle 31C merely carves out a legislative JieM with reference to a particular type of law, and exempts that law from the ambit of article 13(2) in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles speciJied in article 39(b) or (c), not\n\nby virtue of article 31C, but by virtue of their power under. the appro.\n\npriat~ legislative .entir~ What article 31C does is to confer immunity on those laws from attack on the ground that they violate the provision of articles 14, 19 and 31.\n\nThe material portion of article 31A is in (Jtlri materia with the first part of article 310; Article 31.A has been held to be valid by this Court in Sankari Prasrzd's Case('). The fact that the argument now urged did not occur to counsel who appearrd in the case or the great judges\n\n\\\\•ho decided it is a weighty consideration in assessing its validity. To make a distinction between article 31A on the ground that article 31A provides for laws dealing with certain specified subjects only whi:reaa article 31C makes provisions for laws to give effect to the Ste policy\n\norsccurin~ the directive p~cipl.es specified in article 39(b) and (c) 1s, to my mmd; to make a d1stmc:t1on between Twccdkdum and Twcedi ledee. One can vety well say that the subject matter of' the faw (tuei. red to in article 31C is that dealt with by aititle 39(b) and (c} ot that 31A provides for !mmtinity of the laws for securing the objects specifitd therein from attack on the ground that they violate articles 1~, 19 and 31.\n\nDoe.$ the artificial characterisation of a law as one with reference to 'ihe object or subject make any difference in this ontxt 't I think not.\n\n It isa bit difficult to understand how artic!C 31C has delcgt\\Cd or,\n\ni~ I may ay so.more accU'ratey; inv'dted.thc Parliament irt its legisi. ttve capacity or the State legislatures, with any power tO amC!id.' the . Constitutic; m. Mere[y because a la\"'. pll.lSed ~Y em t?. ve elf~ to the policy of the State towacds secunng ~Directive P, nncii>!cs spetj4ed\n\nin article. 39(b) and (c) in pll/sqance ,. to valid legisfvc,,~ in the appropriate Lisi'$ in the: Seventh. $cc4ule might. viob; c . die Fundan)ental Rights un, der articles 14, 19 and 31 and s~ law .is dem.!· cd not yoid . by virtue . of article 31C, it .wCl\\lkl not follow t)W article 31C.has invested the Parlian; tc; nt , in its,.lcgislp, tivr .qpacity or . the State legislatures. wich power to: aixiQl<l .. the . Constrtution. It is by • virtue of the Z5th Amendmnt .that, .. the l, aw. iili¥>ajh it 111ight\n\n( 1 ) [1952] S, C.R. 89,\n\nKESAVANANDA I/, KERALA (Mathew, J.) 851\n\nviolate the Fundamental Rights under articles 14, 19 and 31 is not deemed viod.\n\nWhenever Parliament or State legislatures pass such a law, the law so passed gets immuniey from attack on the ground that it\n\nviulates the Fundamental Rights under articles 14, 19 and 31 by v'irtue of article 31 C which in effect has made a pro-tanto amendment of article 13(2) in respect of that category of laws. It is a mistake to suppose that every time when Parliament in Its legislative capacity or a State legisla\n\nture paS&es such a law and if the law violates. the Fundamental Rights under articles 14, 19 and 31, it is that law which am.ends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely article 13(2), has already been made by the 25th Amendment. And as I said it is that amendment which confers upon the law immunity from attack on the ground that it violates the Fundamental Rights under the above said articles.\n\nParliament in its legislative capacity or. the State legislatures cannot confer any immunity pon the laws passed by them from the attack and they do not do so. They rely upon the 25th Amendment as conferring the immunity upon the law which gives effect to the State Policy towards securing the above mentioned purpose. I confess my inability to understand the distinction between a law passed in pursuance of an amendment of the Constitution which lifts the ban of article 13(2) and a law passed in pursuance of an amendment which says that the law shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by the articles in Part III. The distinction, to my mind, is invisible. Take one illustration: Artide 15(4) says,:\n\n\"Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provisions for the advancement of any sGcia\\ly and educationally backward climes of\n\ncitizens or for the Scheduled Castes and Scheduled Tribes.\"\n\nSuppose the sub-article had said :\n\n\"Notwithstanding anything contained in this article, or clause 2 of article 29 the State shall be competent to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and such a law shall not be dr.emed to be void under article 13(2).'' In both the cases, the amendment has brpught about the same effect, namely, th.e law shall not be deemed to be void for contravention .of the right conferred by art; icle 15 or article 29(2), notwithstanding the difference in the wording by which the effect was brought about. And, in both cases. it is the amendment of the Constitution which gives the law rhe immunity from attack on the ground that it is in contravention of the rights conferred by Part III.\n\nffl SUPREME COURT REPORTS (1973) Supp, S.C.R.\n\n. If article 31C is assumed to invest Parliament in its. legislative • capacity or State legislatures with power to pass a law of the description in question amending Fundamental Right!S under articks 14, 19 and 31 in such a way as to take away or abridge them is t)ie grant of sud! a power valid. The answer seems to me to be simple. If the effect of article 31C is as assumed, then .it is a pro-tanto amendment of arti- 1 de 368. It is not necessary that article 31C should in such a case purport to amend article 368.(1). Nor is it necessary that Article 31C should commence with the words \"Notwthstanding anything contained in article 368';. Just as the Dog Act under an uncontrolled constitution, flro-tanto amends the so called constitution if it is inconsistent with it, so also under a controlled constitution an amendment of the constitution, if inconsistent with any provision of the constitution would pro-tanto amend it. The 25th Amendment was passed in the manner and form required for amendment of article 368;\n\nI cannot read any limitation upon the power to amend the amnding power which would prlude article 368 from being amended in. such a way as to invest part of the amending power in Parliament in its ordinary legislative capacity or in State legislature, to be exercised by them in a form and manner different from that prescribed by article 368; .\n\nThe supposed bad odour about the article should not upset our judgment in adjudging its constitutionality. We have no power under the Constitution to adjudge a constitutional amendment as unconstitutional. on the ground that the amendment would in effect vest large powers in Parliament and State legislatures to pass laws which might violate articles 14, 19 and 31.\n\nCounsel for the petitioner asked the question why the right to pass laws violating the freedom of speech guaranterd under article 19(1)\n\n(a) is given to Parliament in its legislative capacity and to the State legislatures by article 31 C when it is seen that clauses ·(b) and ( c) of article 39 are concerned with matters wh:ich have no connection with tlut freedom.\n\n. In my dissenting judgment in Bennett. Coleman & Co . .and Others\n\nv. Union of India and Others etc.(\"), I had occasion to deal with certain aspect!S of the modern press. Mr. Seervai has rightly emphasized its commercial character and how that aspect, though connecfcd with freedom of speech might require control, Though theJress lt'allm as the purveyor of truth and the disinterested counsellor the people, it is now primarily a business concern; an undertaking conducted for\n\n( 1) Sec MOAamet1 Samsut1een\n\n(1968) A. C. 717, 739 to 744.\n\n(') (1972] 2 s.c.c. 788.\n\nKariapper v. S. S. Wijesinha ant1 another\n\nXl!SAVA!j'ANDA \"· llRALA (M!Zlhew, J.) 853\n\npqfit like any other, tht the proprietor is a man of business and\n\ngh he may desire power as well a.• money, profit comes before political opinions. . According to Lord Bryce the power of the newspaper has two peculiar features. It has no element of Compulsion and no element of Responsibility. Whoever exposes himself to'its influence so of his own free will. He need not buy the paper, nQr read it.\n\nJIOr believe it. If he takes it for his guide, that is his own doing. The newspaper, as it l1as no legal duty, is subject to no responsibility, be yond that which the law affixes to .indefensible attacks on private chancter or incitements to illegal conduct. The temptations to use the .inB.uence of a newspaper for the promotion of pecuniary interests, whe\n\nthcr of its proprietors or of otlicrs,· have also increased. Newspapers .have become one of the mostavailablc instruments by which the Money power can make itself felt in politics, and. its power is practically irresponsible, for the only thing it need fear is the reduction cl circulation, and the great majority of its readers, interested only in business and sport, know little of and care little for the political errors it may <Ollllllit.(1).\n\nThe news CO'ltent of the press enters. at once into the thought pro- \"ss of the public. The fulncss and unbent integrity of the news tihus :becomes a profund social concern. That which is a ncecssary condi\n\ntion of performing a duty is a right; we 1nay thcrc:fore speak of the moral right of a people to be well served by its press. Since the citi\n\nzcn's political duty is at stake, the right to have an adequate service -Of. news becomes a public responsibility as well. So freedom of the\n\npress must now cover two sets of rights and not one only. With the\n\nnght~ of editors and publishers to express thcmsc:lves there must be\n\nassociated a right of the public to be scrv\"I with a substantial and honest basis of fact for .its judgments of public affairs. Of these two, it is the latter which today tends to take precedence in importance.· 'The freedom of the press has changed its point of: focus from the cditOI' to the citizen. This a.•pect of the question was considered by the United States Supreme Court in United Stmes v. Associated Press(').\n\nMr. Justice lllack who wrote the majority opinion secs the welfare of: the public as the. central issue. The fundamental acknowlledgement -that press functions arc now, in the eyes of the law as well as common\n\nsen, e \"clothed with a public interest\" suggest an :illirmative obligation .on the part of the Government.\n\nNobody demurs when a I.aw preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The nd of the consumer to have.\n\n( 1) See Lord Bryce, \"Modern Democracies\", Vol. I, the Chapter on 'The 1'rcss in a Democracy\", pp. 104-124.\n\n(2) 326 U.S. 20.\n\n854 SUPREME COURT Rl!pORTS [1973] Supp. S.C.R.\n\nadequate and uncontaminated mental food is such that he is under a duty to get it. Jlecause of this duty bi.1 intrcst acquires the status of a right since the consumer is no longer free not to consume and can get what he requires only through th<' existing press organs, the protection of the freedom of the issuer is no longer sul!icient to prc>- tect automatically the consumer or the community. The general policy of laissez faire in this matter must be reconsidered. The press is a public utility in private hands and cannot he kft free from all kinds of-regulation. The ante-thesis between complete laissez faire and complete governmental operation or coptrol of the press is for our society unreal, Therefore, the question is whether, without intruding on the press activity, the State may regulate the conditions under which those activities take place so that the public interest is better served('). As I said in my judgment, concentration of power substitutes one .controlling policy for many. independent policies, it lessens the number of competitors. The influtial part of the nation's press is large scale enterprise closely !nrer-locked with the system of finance and industry.\n\nIt will not escape the naturan bias of what it is. Yet, if freedom is to be secure, the bias must be known and overcome. It may also be necessary for the State to extend ti1e scope of present legal remedies, if a given type of abuse amounts to poisoning the wells of the public opinion. It might be necessary in passing a law for giving effect to the State policy towards securing the Directive Principles contained in article 39(b) and ( c) to deal with the commercial aspect of the press, and that aspect being connected ilh the freedom of speech, it might become inevitable for the law to abridge that freedom.\n\nWhatever one's personal views might be about the wisdom of article 31C, whatever distrust one might li:1ve i.: the attempt at improving society by what one may think as futile if not mischievous economic tinkering, it is not for us to prescribe for the society or deny the right of experimentation to it within very wide limits.\n\nIt was said that, as article 31C bars judicial scrutiny of the question that a law containing the declaration gives effect to the policy of the State, Parliament and State legislatures can pass laws having no nexus with the Directive Principles specified in article 39(b) or (c) and violate with impunity the Fundamental Rights under articles 14, 19 and 31.\n\nThe purpose of artide 31C is only to give immunit\\' to Jl law for giving effect to the policy of the State towards securing the Directive\n\nPrinciples under article 39(b) and (c) from attack on the ground that its provisions violate articles 14, 19 and 31. A law whim will never give effect the State policy towards securing these principles will enjoy-\n\n(') See Hocking, \"The Freedol)l of the Press\", pp. 167-9.\n\nKESAVANANDA v. KERALA (Mathew, J.) 855\n\nno immunity, if any of its provisions violates these articles. It is only\n\na law for giving effect to the State policy towards securing the principles specified in article 39 (b) and ( c) that can contain a declaratioo.\n\nthat it is for giving effect to such a policy and it is only such a declaration that will bar the scrutiny by the Court of the question that the law does not give effect to the policy. The expression 'no law' in tbc\n\nlatter pare of article 31C can only mean the type of law referred to in the first part. To be more specific the cxp1essio11 'no law' occurring in the latter part of the article can only mean 'no such law' as is referred to in the first part. It would be very strange were it otherwise. If any other construction were to be adopted, a declaration could shield any law, even if it has no connection with the. principles specified iil article 39(b) or ( c) from attack 011 the ground of violation of these articles. Any law under the Sun can be brought under the protective WD:brella of the declaration. Therefore, as I said, it is only a law for\n\ngiving effect to the policy of the State towards securing the principles specified in clauses (b) and ( c) of article 39, that can contain a declaration. If a declaration is contained in any law which does not give effect to the policy-of the State towards securing the principles specified in these clauses, the Court can go into the question whether tbc law gives effect to the said policy. Whenever a question is raised that the Parliament or State leatures have abused their power and inserted a\n\ndeclaration in a law not for giving effect to the State policy towards securing the Directive Principles specified in article 39(b) or (c), the Court must necessarily go into that question and decide it. To put it ia -0ther words, the legi>lative jurisdiction to incorporate a declaratiou.\n\nthat the law gives effect to the policy of the State is conditioned upoo. the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in article 39(b) and (c). If this is so, the de<:laration that the law is to give effect to tbc policy of the State cannot bar the jurisdiction of the CoUrt to go int& the question whether the law gives effect to the policy. The declaration can never oust the jurisdiction of the Court to see whether the law is Qne for giving effect to such a policy, as the jurisdiction of the legi .. lature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles.\n\nIn order to decide whether a law gives effect to the policy of tbc State towards securing the Directive Principles specified in article 39(b) or (c), a Court will have to examine the p'Lth•and substance, the true\n\nnature and. character o[ the law as also its design and the subject matter dealt with by it together with its object and scope. If the Court cornea\n\nto the conclusion that the declaration was merely a pretence and that the real purpose of the law is the accomplishment of some object other than to give effect to the policy of the State towards securing the Dim;. tive Principles in article 39(b) and (c), the declaration would not be\n\n856 SUPREME COUIIT REPPl\\TS [1973] Supp. s.c.R.\n\na bar to the Court from striking down any provision therein which\n\nmlates articles 14, 19 or 31. In other words, if a law passed ostensibly\n\nto give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorized object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. ·\n\nApart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in article 31C that a State legislature will not abuse the power as the law passed by i~ will be valid only when it has been reserved for the assent of the President and has obtained his assent. In the light of what I have said, the apprehension expressed in some quarters that if judiaial scrutiny of the question whether the law gives effect to the policy of the State towards securing these Directive Principles is barred, it will lead to the disintegration of the country has no real foundation.\n\nNr has the dictum of Justice Holmes:(') \"I do not think that the United States would come to an end if the Supreme Court lost our. power to declare an Act of\"the Congress void.\n\nBut I do think that the Union would be imperilled if we could not make that declaration as to the laws of the several States\", any relevance in the context.\n\nIt was said that the Constitution-makers never intended that Fundamental Rightll should be subservient to Directive Principles and that they visualized .a society where the rjghts in Part III and the a81Jira- 1ions in Part IV would co-exist in harmony. (The docnrine of harmoniOus construction has been a f111nacea for many of our ills. But I am\n\nnot sure of its cfliciency.) A succeeding generation might view tke relative importance of the Fundamental Rights and Directive Principles in a different light or from a d.ifferene perspective. The value judgment of the succeeding generations as regards the re!ative weight and jmportance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no aJ11Wer to say that the relative priority value of the Directive Principles over Fundamental Rights was not apprehended or even if apprehended .was not given effect to when the Constitution was framed or to insist that . what the Directive Principles meant to the vision of that day, it must ' mean to the vision of our time.\n\nI have no doubt in my mind as regards the validity of the 29th Amendment. For the reasons given in the judgment of my learned brother Ray, J., I hold that the 29th Amendment is valid.\n\n( 1) Holmes, \"Collected Legal Papers\", pp. 295-296.\n\nKESAVANANDA v. KERALA (Mathew, J.) 857\n\nThe argument in these cases lasted for well nigh six months.\n\nAcres of paper and rivers of ink have been employed before and during the argument in supplying the Court with materials from all sources. It will be a tragedy if our conclusion were to fail to give adequate guidance to the Bench concerned in disposing of these cases. I do not, want the conclusions to which I have reached to remain a Delphic oracle. I would, therefore, sum up my findings.\n\nI hold that the decision in Golakna.th Case that the Parliament . had no power to amend Fundamental Rights in such a way as to take away or abridge them was wrong, that the power to amend under article 368 as it stood before . the 24th Amendment was plenary\" in character and extended to all the provisions of the Constitution, that\n\nthe 24th Amendment .did not add anything to the content of article 368 it 'stood before the amendment, that it is declaratory in character except as regards the compulsory nature of the assent of the Presi- . dent t6 11 bill for amendment and that the article as amended makes\n\nit clear that all the. provisions of the Constitution can be amended by way of addition, variation or repeal. The only limitation is that the .COOStitution cannot be 'repealed or abrogated in the exercise of the jiower of amendment without substituting a mechanism by which the\n\n'State is i::onsdtuted and organized. That limitation flows from the Ian- . guagc of the article itself.\n\nI d(> nOt think there were or are any implied or inherent limitations upon the power of amendment under the article:\n\nJ:he . 24th Amendment is valid .\n\n. ;•\"' •;1_ ' . ' ' ' ' . _ .The 25th Amendment, including article 31C, is valid. The word .'amunt' in article 31(2), as amended; docs not convey the idea of any ; norm. •The fixation of the amount or the principle for determining the , amount is. a matter within the absolute discretion of the Parliament\n\nor tlic State Legislatures. The Court cannot go into the question whether the amount fixed by law or the principle laid down for determining the amount is adequate or relevant.\n\nThe declaration visualized in article .31C that the law gives effect to the policy of. the State towards .g the principles spec.ifid !8 art'icle 39(b) and (c) of the Constitution would not oust the JUn~ tion of the Court to go into the question whether the law gives effect to .the policy. The jurisdiction' of Parliament or the State legislatura to ilicorporate the declaration.in a law is conditioned upon the circumstllnce .that the law is one for giving effect to the State policy towards securing the aforesaid principles.\n\n158 SUPREMJ! COUllT REPORTS ( 1973) Supp. S, c.ll.\n\nThe 29th Amendment is valid.\n\nT would have the wdt petitions disposed of i.11 the. lighit of these findings. I would make no order as to costs here. ·\n\nBEG, /.-This reference to a special bench .of thirteen .Judges, brger than .any previous bench hearing a case in th.is Court, was made so that the correctness of a view which became binding law of this country by a narrow majodty ri one, as a result of the. eleven J udgc decision of thisCourt, in Golak Nath & Ors. v. State of Pun; ab.& Anr.,(') may be if need be reconsidered. That view was that the prohlbition contained in Article 13(2) of our Constimtion against the making of any law by the State \"which takes away or abridges the rights\n\nconferred\" by the chapter on Fundamental Rights making laws made in contravention of this provision void \"to the extent of the contravention\" applies to Constitutional amendments also. A\\though that was a decision on a limit?; tion held tp exisl!, under our Constitution, .as it then stood, on the power of amendment contained :in Articic 368 . of the Constitution, yet, it did not decide what the position would be, if Article 368 was itself amended under the expl'Clls power of such amendment recognised by clause_ ( e) of the proviso to Article 368 t2) ef the Constitution. Although, that question, which . then neith~ arose nor was decided, is before us now. directly for. decision, yet, I think, we cannot avoid pronouncing upon the correctness of the majority deci.sion in the Golak Nath's case (Supra), which h~ a bearirig upon the scope of the power of amendmene contained in the unamended Article 368. .\n\nThe cases before us have become so much loaded with learning and marked. by brilliance of exposition of all the points inV<>lved, either directly O£ indirectly, both by my learned brethren and the Il\\embers of the Ear of this Court, in view of the crucial importance, for the future 9oJlstifut:iorial history of this country, of the hs\\te$ placed before us,\" that it would be presumptuous on my part 1IO .autCJDpt to deal\n\nwith eifery point which has been raised. Indeed, it is not necessary for me to repeat eh views as I accept as correct expressed by my learned brethren with whose conclusion I agree. The reason.~ for my very respectful disagreement with those conclusions of some of my other learned brethren with which I do not concur will become evident in the course of the few Observations with whkh l shall content myscl£ before recording my conclusions. I venlture to make these o)Jscrvations because, as my learned Brother Marhew has pointed\" our, jn cases oi .\n\nthe nature be£ore us, the healthier practice is to follow the mple of House of Lords even though a multiplicity of <>pinions may pr0o duce a \"thicket\", which, according to Judite Learned Hand, it :is the: function of judicial learnirig and wisdom to remove. I do hope that\n\n\nltESAVANANDA fl. KUALA (Beg, J.) 859\n\nmy observations will not add to the thickness of. this thicket without\n\nsome useful purpose served by making them.\n\n I think that we do stand in danger, in the circuces stated above, of losing sight of. the wood for the trees, and, if we get entangled in some of the branches of the trees we may miss reaching the destination; the correct conclusion or , Jecision. I think I can speak for all my learned brethren as well as myself when I say that we are all conscious of. the enormous burden which resn. upon our shoulders in placing before the .country the solution or solutions which may not only be correct but benefiCial for it without doing viQJ.encc 1P the law embodied in our Constitution to which we take oaths of allegiance, ·\n\nI am reminded here of. what.Prof. Friedmann wrote in \"Law in a Changing Society\", He said at. page 61 :-\n\n\"'The task of the modern jcdge is increasingly complex. Hardly any major dec'ision can be made without a careful evaluation of the conflicting values and interests of which some examples have been given in the preceding pages. Totalitarian government e1iminates much of the conflict by dictating what should be done\".\n\n\"The lot of the democratic 'judge is heavier and nobler. He. cannot escape the burden of. individual rcsponsibility, and the great, as distinct from the competent, judges have, I submit, been those who have shouldered that burden and made their decisions as arti- .culate a reflection of the conflicts before them as possible. They do not dismiss the tefhniques of law, but they are aware that by themselves, they provide no solution to the social conflicts of which the law is an inevitable reflection,..\n\nHe also .wrote there (at page 62) :-\n\n\"The law must a.spire at certainly at justice, at progressiveness, but these objectives are constantly in conflict one with the other. What the great judges and jurists have taught is not infallible knowledge, or a certain answer to all legal problems, hut an awareness of the problems of contemporary society and an acceptence of the burdet of decision which no amount of technical le1ral knowledge can take from us.\"\n\nThe 'Core', a term and concept which Mr. Palkiwala has tried to impress upon us repeatedly with his extra-ordinary forensic ability\n\n~.l!d eloquence, or crux of the problem before us i< thus stated in writing, in part 10 of Book 3, containing the concluding written submission of Mr. Palkiwala.\n\n\"It is submitted that it would be impossible to dispose of these petitions without dealing with the most crucial question the true\n\n860 SUPREME COURT REPORTS [1973]. Supp. s.c.11. .\n\n. ambit of the amending power. This question can be decided either on the ground of the meaning of the word \"amendment\" in the unamended Article 368 or on the ground of inherent and implied limitations or on both the grounds, since they converge on the \"::; l::t'! point.\" ,\n\n\"It is submitted with great respect that it . woUkl be imP<¥Sible to deal with the questions relating to the. 24th :il\\d. 25th Amendments without deciding the true ambit of the ameD.ding power\".\n\n\"The questions of the correct interpretation of the 24th Amen~ ment and its validity cannot be decided unless this Hon'ble Cowt first comes to a conclusion as to whether the original. power was limited or unlimit'cd. If it was originally limited the question would arise whether the 24th Amendment should be ''rad down\" or whether it should be hell! to be unconstitutional Even the question of the. correct construction qf the 24th Amendment . cannot be decided unless. the starting point is first established,\n\nnamely, the true: 'SCOpe of the original aniendirig power\".\n\n\"Again, it would be impossible to decide the question whether Article 31(2) which has been aled by the 25th Amend-\n\n• mcnt should be \"read down\" in such a way a5 to pre the right . to property or should be declared unconstitutional as abrogatini\n\nthe right to property, unless' and until it is first decided •whether . Parliament has the right to abrogat6 the right to property.\n\nThis directly involves the question \"whetlier the amending power is limited or willmitcd.\" ·· ·\n\n\"When one comes to Article 3iC the . necessity of deciding tht limits of the .amending powe.r comes unmistakable. The Arrick\n\nviolates 7 essential features of the Conslltution and makes the COnStiturion suffer a loss of identity. There can be no question of 'reading down' Article 31C. It can only be held <to be unconstitutional on the ground that Parliament's amending power :was limited\". ·\n\n\"To decide the question .of t./ie validity of Article 3!C only on the ground that it virtually provide~ for amendment of the Constitt1tion. in a \"manner and forn( different from that prescribed bJ>\n\nArticle 368 would be a most unsatisfactory ground of decfrz'on.\n\nThe question of prime importance is the limit on the amending power. The question of manner and form pales into total insz'gtri..\n\nficance compared to the question of substantive limitation on sJi6 amending power''. ·\n\n.KESAVANANDA V. KUALA (&g, J.) 861\n\n\"It is submitted with the greatest respect thati the 69 days hearing would be virtually wasted if the judgment were to rest merdy on the t><>int of manner and form, avoiding the real issue of. momentous significance, namely, the scope of the; amending pow.c:r. lt is this vital issue which has really tiakm up the time of the Court for almost five months\".\n\nBefore tackling the core or crux of the case which, as Mr. Palki wala has rightly pointed out, is the question of the limits of the amending power found in Article 368 of the Constitution, I must make some preliminary obser\\>'ations on the very concepts of a Constitution and of legal sovereignty embodied in it, and the nature of the amending power as I conccive it. This and other parts of my judgment may also disclose what I think a judge should not hesitate to explore and\n\nel!pose leaving it merely to be inferred from the judgment as his \"undisclosed major premises\". It is part of judiciali function, in my estimation, to <lisclose and to justify to the citizens of this country what these premises are.\n\nI think that it is clear from the Preamble as well as the provisions of Parts III and JV of our Constitutiol). that it seeks to express the principle: \"Salus Populi Seprema Lex\". In other words, the good of the mass of citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the preamble or the 'key' which puts \"justice, social, economic and political\" as the first of the four objectives of the Constitution by means of which \"the people\" of lnJia constituted \"a sovercign democratic Republi~\".\n\nA modern democratic Constitution is to my mind, an expres.. sion of the sovereign will of the people, although, as we all know, our Constitution was drawn up by a Constituent Assembly whicli was not chosen by adult franchise. Upon this Constituent Assembly was conferred the legal power and authority, by Section 8 of_ the Indian Independence Act, passed by the British Parliament, to frame our Constitution. Whether we like it or not, Section 6 and 8 of an Act of the British Parliament transferred, in the eye of law, the legal soverdgnty, which was previously vested in the British Parliament, to the Indian Parliament which was given the powers of a Constituent Assembly for framing our Const'itution.\n\nThe result may be described as the transfer of political as well a'. legal sovereignty from one nation to another, by means of their legally authorised channels.\n\nThis transfer became irrevocable both as a matter of law and even more so of fact. Whatever theory sme of the die-hard exponents of the legal omnipotence ci the British\n\n55-36 s. 0. India/73\n\n862 SUPllMl! COURT llPOllTS [ 1973] Supp. s.c.R.\n\narliament may have expounded, the modern view, even in Britain,\n\nJS that what was so transferred from one nation to another could not be legally revoked. The vesting of the power of making the Constitutiou was however, legally in the Constituent Assembly thus constituted and recognised and not in ''the people of India\", in whose name the Constituent Assembly no doubt spoke in the Preamble to the Constitution. The Constituent Assembly thus spoke for the whole of the people of India without any specific or direct legal authority conferred by the people themselves to perform this function.\n\nThe voice of the people speaking through the Constituent Asscm bly constituted a new \"Republic\" which was both \"Sovereign and Democratic\". It no .doubt sought to secure the noble objectives laid down in the Preamble primarily through both the 'Fundamental rights found \\n Part III and the Directive Principles of State Policy found in Part IV of the Constitution. It would, however, not be correct, in my opinion, to characterise, as Mr. Palkiwala did, the Fundamental rights contained in Part III, as merely the means whereas the Direct'ive . Principles, contained in Part IV as the ends of the endeavours of the p, eople to attain the objectives of their Co!istitution.\n\nOn the other hand, it appears to me that it would be more correct to describe the Directive Principles as laying down the path which was to be pursued by our Parliament and State Legislatures in moving towards the objectives contained in the Preamble. Indeed, from the point of view of the Preamble,· both the fundamental rights and the Directive Principles are means of attaining the objectives which were; meant to be served both by the fundamental rights and Directive Princi: pies.\n\nIf any distinction between the fundamental rights and the Directive Principles on the basis of a difference between ends or means were really to be attempted, it would be more proper, in my opinion to view fundamental rights as the ends of the endeavours of the Indian people for which the Directive principles provided the guidelines. It would be still better to view both fundamental rights and the \"fundamental\" Directive Principles as guide lines.\n\nPerhaps, th~ best way of describing the relationship between the fundamental rights of individual citizens, which imposed correspond- .ing obligations upon the States and th, e Directive Principles, would be to look upon the Directive principles as laying down the path of the country's progress towards the allied objectives and alms stated in the Preamble, with fundamental rights as the limits of that path, like the banks of a flowing river, which could be mended or amended by displacements replacements or curtailments or enlargements of any part according to the needs of those who had to use the path. In\n\n.IWAVANANDA v. XEaALA (Beg, J.) 863\n\nQther words, the requirements of the path itself were more important. A careful reading of the debates in the Constituent Assembly also lead me to this premise or .asswnption. If the path needed widening or narrowing or changing, the limits could be changed.\n\nIt seems to be impossible to say that the path laid down by the Directive Principks is, less important than the limits of that path. Even though the Directive Principles are \"non-justiciable,\" in the sense that they could not be enforced through a Court, they were declared, in Article 37, as \"the principles. . . fundamental in the governance of the country\". The mandate of Article 37 was : \"it shall be the duty of the State to apply these principles in making laws\". Primarily the mandate was addressed to the Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in sonic judicial law making, within the interstices of the Constitution or any Statute before them for construction, the Courts too are bound by this mandate.\n\nAnother distinction, which seems to me to be valid and very significant it that, whereas, the fundamental rights were \"conferred\" upon citizens, with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamentat rights, feedom of individual cltizens, viewed as individuals, were sought to be protected, but, in giving specific directi<Ves to State organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two was, no doubt, to be always attempted whenever this was reasonably possibk. But, there could be no doubt, in cases of possibl; e conflict, which of the two had to be subordinated when found embodied in laws properly made.\n\nArticle 38 shows that the first of the specific mandates to State organs says :\n\n\"38. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life\". ·\n\nIn other words, promotion of a social order in which \"justice, social, economic, and political\" was the first duty of all the organs of the State.\n\nThe second specific mandate to State. organs, found In Artic!C 39, contains the principks of what is known as the socialistic \"welfare State\". It attempts to promote social justice by means of nationalisation and State action for a better distribution of material resources Jf the country among its citizens and to prevent the exploitation of\n\nlhe weak and the helpless. It runs as follows :\n\n864 SUPREME cdti1T llEMaTS [1973] Supp. s.c.11.\n\n\"39. The ., State shall, in particular, direct'its policy towards seCtl' ring:- ,\n\n(a) that the cifuens,' then and wom~ equally, have the light to an adequate means 'of livelihood. . . .. .,, . '\n\n(h) that the ownership and control of the material rcsoutcd\n\not .. the c9mtnunity are so distributed as best to subservc the common good;\n\n( c) that the operation of the economic system does not result\n\nin the concentration of wealth and means of production to the common deteriment; ·\n\n( <l) that there is equal pay for equal work for both men and women;\n\n( e) that the health and strength of workers, men and women, . and the tender age of children arc not abused and that citizens are not forced by economic necessity to enter avocations unsuited , to their age or strength; ·\n\n(f) that childhood and youth are protected against exploitation and against moral and material abandonment\".\n\n_ On the views stated above, it would be difficult to hold that, the nw; ssarily , cha.ngeable limits of the path, which is contained in the Directive Princ'.iples, are more important than the path itself. I may mention here. that !t was observed in one of the early Full Bench decisions of the Allahabad High Coon:. in M otilal & Ors. v. The Goverilment of the State of.,.Uttar Pr\"4esh 0- Ors.,(') by Sapru J :-\n\n, \" I shall also say a few words about the directives of State policy which, though not justiciable, may bc taken info account in con- ·\n\nsidering the Constitution as a whole. These directives lay down the principles which it will be the duty of the State to apply in the making of laws and their executiro. Article 38 states that the State shall strive to promote the welfare of the people by securing a.nd protecting as effectively as it may a social order in which justice, social, economic and polifical shall inform all the irutitutions of the national life\".\n\n\"Article 39 lays down the principles which must inspire State policy. Articles 40 to 51 concern themselves with such questions inter alia, as, for example, the right to work, to education and to public assistance, the promotion of education and economic interest of scheduled castes and the duty of the State to raise the level of . of nutrition and te improve public health\".\n\n(') A.I.R. 1951 All. 257 @ 296.\n\nKES.\\VAN'AN'DA ti, DL\\LA (Beg,· J.) 865\n\n\"My object in drawing atten.tion to the nature of these obje~ tives is to show that what the framers of the Constitution were after was to esiablish, what is geileraIJ.y known, now as the 'welfare' or the 'social service state', in this country. They had taken a cqmprehensive view of State activities and it is quite clear that they were not dominated by the laissez faire thought of the last century. So much about Directives. Now we come to fundamental rights\".\n\n\"The object of these fundamental rights, as far as I can gather from a reading of the Constitution itself, was not merely to provide security to and equality'. of citizenship of the people living fo this land . and thereby he!ping the process of riationbuilding, but also and not. less importantly to provide certain standards of conduct,. , citizenshiJI, justice and fair play. In the background of the Indian Constitution, they were intended to make all citizens and. persons appreciate that •the paramount law of the land has swept away privilege and has laid down that there is to be perfect equality between one section of the community and another in the matter of all. those rights which are essential for the material and moral perfection of man\".\n\nIndeed, in Balwant Rai v. Union of India('), Dhavan J, went so as far to hold that \"the duty of the State\" under Article 37 to apply these principles in \"making laws\" was to be carried out even by the judiciary of the State whenever it had a choice between two possible constructions that is to say, when it could indulge in judicial \"law making\".\n\nThe next topic on which I will venture to make some observations is the significance and meaning of the word \"sovereign\". What was constituted by the Constituent Assembly, speaking for the people of India, was a \"Sovereign Democratic Republic\".\n\nHere, I may, mention the well-known distinction between \"political sovereignty\" and' \"legal sovereignty\". Dicey in his Law of the\n\nConstitution (tenth edition), clisctissing the nature of Parliamentary Sovereignty said (at page 73) :\n\n\"The matter indeed may be carried a little further, and we may assert that the arrangements of the constitution are now such to ensure that the will of the dl:ctors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a policical, not .a lej!al fact.\n\nThe electors can in the long run, always enforce thCIJ' wil!. But the courts will take n0, notice of the will of the electors. The\n\n( 1) A.I.R. 1968 AU. 14.\n\n866 SUPREME COURT REPORTS\" [1973] SUl>P; s.c.R.\n\njudges know nothing about any will of the people except in 8o far as that will be expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground o£ its having been passed or being kept alive in opposition to the wjshes of the electors. The political sense of the word 'sovereignty' is, in is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work . Austin has apparently confused the one sense with the other\".\n\nLegally, the British Parliament transferred the whole of its legal sovereignty . over the people and territories of this country in Bntish India to the Constituent Assembly which spoke in the name of the people of India. The Princely States came in through \"Instruments of accession\". This means, that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically \"sovereign\". Their views were carefully ascertained and expressed,. from various angles, by the Members 0f the C'..onstitrJent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect fell: upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring oun that it was really speaking on behalf of the people of India, the: Constituent Asembly began the Preamble with the words : \"We, the people of India\". This meant, in my estimation, nothing more. than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this country through the Constitution framed by it.\n\nThere is not to be found, anywhere in ortr Constitution, any transfer of legal sovereignty to the pe\\}ple of India.\n\nThe people of India speak through their representatives in the two Houses of Parliament. They approach the courts for the assertion of their rights. The courts adiudicate upon the rights claimed by them and speak for the Con$1itutlioni and llQt directly for the people. Judges and other dignitaries of State as well as Members of Parliament take oaths of allegiance to the Constitution and not to the people of India. In other words, the Constitution is the \"Legal sovereign\" recognised by Courts, although the ultimate 'political' sovereignty may and does reside in \"the people\".\n\nWe need not, I thin!(, en'lbark on any academic discourse upon the various meanings of the term \"sovereignty\" which has given niuch trouble to political thinkers and jurists such as Luguit, Gricrke, Maitland, Laski, Cole and others . .' I will be content .with quoting the views of Prof. Ernest Barker expressed in his \"Principles of Social\n\n ~VANANDA u, IU!RALA (Beg, J.) ' ' 867\n\n6; Politicill Theory\" on the. nature and meaning of the tenn \"sovereignty\", as the lawyers generally understand it. He says (at page 59):-\n\n''There must exist in the State, as a legal association, a power of of final legal a.djustmcnt of all legal issues which arise in its ambit. The legal association will not be a single unit, and law will not be a unity, .unless there is somewhere one authority to which crucial Oifferences ultimatel'y come, and which gi\"'.es, as the authority of last resort, the ultimate and final decision. Different .social groups may press different views of what is, or ought to be, law; it is even possible that different departments of the State may hold, and seek to enforce, different notions of what is legally right; there must be a final adjustment centre. That . final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or soverano, the 'authority of the last word'.\n\nSovereignty is not the same as general State-authority, Or pui1sance publique : it is the particular sort of State authority which ii the power and the right of ultimate .decision\". ·\n\n. \"In one sense sovereignty is 'unlimited-unlimited and illimitable.\n\nThere is no qutstion arising in the legal association, and belong ing to the sphere of its operation, which may not come up to the sovereign. and which will not be firuiliy decided by the sovereign if it so comes up to the topmost rung. The ad justment-centre must be competent to adjust every issue, without exception, which may stand in need of adjustment.\n\nBut there are other considerations also to be noticed: and these will show us that sovereign~, if it is not limited to particular questions and\n\nJefinite objects (limited, that is to say, in regard to the things which it handles), is none the less Ii.mited and defined by its own nature\n\nand its own mode of ttction\".\n\n\"In the first place, and as regards its nature, sovereignty is the authority of the last word. Onty questions of the last resort will therefore be brought to the Sovereign. Much will be settled in the lower ranges and in the ordinary course of . the action of general State-alithorit)'. In the second place, and as regards its mode of action, the sovereii; n is a part and an organ of the legal asS<)Ciation. Nothing will therefore come to the soverign which docs not belong to the nature and operation of the legal associa tion, . as such.· Sovereignty moves within the circle of the legal association, and only within that circle; it decides upon questions of a l:gat order, and onliy upon those questions. Moving within that circle, and ilcciding upon those questions, sovereignty will only make legal pronouncements, an<I it will make them accord-\n\n868 suPBEl\\lt COtlllT Bl!POllTS [1273] Supp, s.c.ll.\n\niug to rcgUlar rules of legal procedure. It iS hot a capricious power of doihg anything in any way: it is a legal power of sett'.\n\nHng finally leg.ii questions in a legal way\".\n\nProf. Ernest Barker went on to say (p. 61-63)\n\n\"(a) uitiinately, and in the cry last resort, th~ soverci~ is the constitution itself-the constitution which is the eflicient and formal cause of the association; which brinjsit into being; which forms and defines the organs and methods of its operations, and may also fortn and define (if the Constitution ' either contains or is accompanied by a 'declaration of right') the purposes of its , operation. ft may be objected to this view that the sovereign is a body of living persons, and not an impersonal scheme; and that ultimate sovereignty must according)y be asCribcd, not to the constitution, but to the constitution-making body behind it which can alter and amend its provisions. But there is an answer to that objcCtion.. The impersonal scheme of the constitution is permanently present, day by day, and year by year ; it acts continuously, and without interruption, as the permanent control of the whole opcra\\i.>n o{ the State. The body of persons which cap. alter and amend the constitution (and which, by the way, can act only . tinder the constitution, and in virtue of the constitution) is a body which acts only at moments of interruption,. and therefore at rare intervals: The continuous control y more properly be termr.d sovereign than the occasional interruption;. and we may accordingly say that the constitution itself, in virtue of being such a. control, is the ultimate sovereign\".\n\n\"(b) Secondarily,. however; and subject to the ultimate sovereignry of.thecconstitution we may say that the body which makes ordinary lw, iii the nse of issuing the day-to -day and the yearby-year ruks of legal conduct, is the immediate 5overeign. That body' may be differently compoml in dilferr.nt political systems.\n\nIn the United States, for example, it is composed of Congress and President acting independently (though with mutual checks and reciprocal p0wers of overriding one another's authority) on a system: of CO-Ordination. In. the United Kingdom it is comi\"- 1Cd of Parliament.• and His Majesty's Ministers acting interdepenll~.ntly, and with a mutual give and take (though here too there arc mutual checks, the Parliament can dismissthe Mirusters by an tdvetsc vote' as vice m\"Sa they can. dismiss Parliament by advising His Majesfy to use his power of disf<>lution), on a system which is one cl conhCxt:ion rather than co-ordination. However composed, 'the 'body which makes the ordinary law of the land is the immediate sovereign, which issues finaL kgal pronouncements on ordinarY ctirrrcht questions to the extent and by the methods\n\n:iq!AAVANANl>A tf, XDALA (Beg, J.) 869\n\n.authorize.cl um!r the constitution:·. The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by .. the .constitution to a greater extent of action, and to .action by easier and speedier methods, than the the immediate\n\novereign which makes the ordinary law in the United States; hut in either case tl1e immediate sovereign is a body authorized hy the constitution, acting and able to act because it is so authorized\".\n\nOn the. argument which is here advanced the constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law -0f the political association; and the law and rule-making body is the immediate sovereign, in virtue of being the constant source and per-\n\n.cnnially active fountain of what may be called the sccmdary law of the land. Two difficulties confront the argument, one of them largely formal, but the other more substantial The first and largely formal difficulty is tha.t it would appear to be inconsistent to begin by ascribing ultimate sovereignty to the constitution rather than to the con5titution-making body, and then .to proceed to\n\n1 .ascribe immediate sovereignty to the law and rule making body\n\nrather than to the law. Does not consistency demand either that both sovereigns should be impersonal systems, or tha.t both should\n\nie personal bodies; either that the ultimatc sovereign should be ''the rule of the constitution' and the immediate sovereign 'the .rule of law', or that the ultimate sovereign should be the constitution-making body and the immediate the law and rule-making body ? We may answer that inconsistency is inherent in the nature of the case. The po6iti!>f1 of the primary law of the State is different from that of the secondary law\".\n\nI have quoted rather extensively from the views of Prof. Ernete- Barker as they appeared to me to have a special significance for explaining the relevant provisions of our Constitution. Indeed, Prof. Ernest\n\nBarker begins his exposition by citing the Preamble to the Constitution of India; and, he gives this explanation in his preface for such a beginning :\n\n\"I ought to explain, as I end, why e preamble to the Constituion of India is printed after the table oE contents. It seemed to .me, when I read it, tit-state in a brief and pithy form the argument of much of the book; and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to th~ principles of a political tradition which we in the West r.all Wr, stcrn, but which is now sometliing more than Western\".\n\n870 SUPREME COURT UPOllTS [ 1973] liWl' s.c.&.\n\nThe \"sovereignty of the Constitution\", as I see it, .is \"a' feature\", as Bosanquet put it in his Theory of the State, \"inherent in a genuine whole\". This means that it is not vested in all its aspects in any one of the three organs of the State but may be divided between them A mark of such SC>vereignty is certainly the possession of \"Constituent Power\", although the, totality of sovereign power may be divided.\n\nLaski wrote, in his \"Grammar of Politics\" (pages 'l!J6.\"E7) :-\n\n\"It may yet be fairly argued that, in every State, some distinction between the three powers is essential to the inaintenance of freedom. Since the work of Locke and Montesquieu, we have come generally to admit the .truth of Madison's remark that 'the accumulation of all powers . . . . in the same hands . . . may justly be pronounced the very definition of tyranny\".\n\nIn order to avoid concentration of such excessive power in few hands that it may corrupt or be misused by th<Jlse who wield it, our\n\nConstitution also divides or distnibutes legal sovereignty into three branches or organs of the State the Legislative, the Executive, and the Judicature. The sphere of the sovereignty of each is sought to be so demarcated by our, Constitution that the \"genuine whole\" appears in the form of three intersecting circles. In those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution 'and can check legislative or executive action. But, in the remaining parts of the two interhecting circles of the Legislative and the Executive spheres, the two other branches are supreme\n\nlegally, just as the judicature is in its own, so that their decisions ' there cannot be questioned by the judicilL branch of the State.\n\n:flere w~ are concerned only with the relationship between judicial ,. and the legislative organs. Our Constitution makes the judicature the ultimate testing authority, as the guardian of the Constitution, in so far as the ordinary law making is,.concerned. In tl1e sphere of the primary fundamental law of the Constitution lies also the amending power contained in Article 368 of the Constitution over which the , control of the judicature is limited to seeing that the form and the manner of the amendment is properly observed. Beyond that, the authority llf the judicial organ over the Constituent power vested in the Constitutional bodies or organs mentioned in Article 368 of the Constitution ceases. No doubt the iudicial organ has to decide the question of the limits of a sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere.\n\nAfter having made a few observations about the nature of the sovereignty of the Constitution and the judicial function connected\n\nKESAVANANDA ti, KERALA (Beg, J.) 871\n\nwith it, f will say something about the urge for dynamic changes. amply disclosed by the speeches in the Constituent Assembly, which is fow1<1 embodied in the Preamble as well as the Directive Principles of our Constitution. Granville Austin observed in the \"Indian Constitution: Cornerstone of a Nation\" (at page 43) :-\n\n\"What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic constitution, with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of .the techniques of social democratic thought, such was the type of constitution that Constituent Assembly members created\".\n\nThus, the direction towards which the nation was to proceed was. indicated but the precise methods by which the goals were to be attained, through socialism or state action, were left to be determined by th~\n\nState organs of the future. In laying down t\\ie principles, by means ofwhich the poverty-stricken, exploited, down-trodden, ignorant, religion and superstition ridderi masses of India, composed of diverse elements, were to be transferred into a strong united, prosperous, modern' nation, it was assumed and said repeatedly that India's economy must change its feudal character. Its social patterns, modes of thought and' feeling, were to be changed and guided by scientific thinking and cndavour so as to lead its people on towards higher and higher ranges of achievement in every direction.\n\nOur Constitution-makers, who included some of the most eminent jurists in the country, could not have been ignorant of the teachings of our own ancient jurists, Manu and Parashara, who had pointed out that the laws of each age are different. In support of this view, the- late Dr. Ganga Nath /ha, in his treatise on Hindu Law, has cited the original passages from Manu and Parashara which run as follows :\n\n(1) Anye krita yugay dharmaah tretaayam duaaparey parey anye\n\nkali yugey nreenaam yoga roopaanusaaratah-Manu.\n\n(2) anye krita yugev dharma tretaayaama dyaaparey parey anye\n\nkali yugey nreenaam yuga roopaanusaratah-Parashara.\n\nAn English translation of the sense of the above passages runs as: follows: .\n\n\"The fundamental laws (imposing fundamental duties or conferring fundamental rights) differ from age to age; they are different in\n\n:872 SUPREMI! odvRT llEPOllTS ('1973] Supp. s.c.R.\n\n1-the a8c known as krita. £rom those in the dvaapara age; the funda,.\n\nmental.laws .of the. kali age are different from all previous ages; the\n\nlaws of each age conform to the distinctive characta of the age (yuga\n\n~<H>ptz nusaara tah) \". In other words, even our ancient jurists recognised the principle that one generation has no right to down future generations to its own views or laws even on fundamentals. The fundamen- ta\\s may be different not merely as between one society and another but also as between one generation and another of the same society .or µation.\n\niA.t any rate, I am convinced that we cannot infer from anything in the language of the unamended Article 368 any distinction, beyond 'lhat found in the more difli~'Ult procedure prescribed for amendment of cettain Articles, between more and less basic parts of the Constitution. None are sacrosanct and transcendental, in the sense that they .are immune from and outside the process of amendment found in Article 368 and while others only arc subject to and within its ambit .even before its amendment.\n\nMy learned Brother Dwivedi, J., has, very, aptly, compared the mode of progress visualized by the Constitution as the movement of 1he chakra. Such a movement naturally involves that a part of the nation which may have been at t11e top at one time may move towards the bottom and then come back to the top again. The Constitution, bowever, visualizes the progress of the whole nation towards greater -equality as well as prosperity. The function of the amending provision, in such a Const'ltution, must necessan1y be that of an instrument for dynamic and basic changes in the future visualized by our Constitution makers. The whole Constitution is based on the assumption 'that it is a means of progress of all the people of India towards certain goals. The course of progress may involve, as choices of lesser of two evils, occasional abtogations or sacrifices of some fundamental rights, to achieve economic emancipation of the masses without which they are unable to enjoy any fundamental rights in any real sense. The movement towards the goals may be so slow as to resemble the movement of a bullock-cart. But, in this age of the automobile and the aeroplane, the movement could be much faster.\n\nThe Constitutional function with which the judiciary is entrusted, -in such a Constitution, is to see that the chosen vehicle does not leave the charted course or path or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights, as I have said eariler, may be viewed as such limits. The power of amendment, 'in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation. As the celefaattd Justice Holmes said in his \"Common 1.Jzw\", the life of law has Dot been logic, but the \"felt necessities\" of the times. Every kind of\n\n1 I\n\nKEMVAN.\\NDA fl. KEMLA (Beg, J.)\n\nlaw, whethe~ fundamental or o, r9.inary, has .to be an attempted adaptation to the needs of the people at a particular time. The power of: adaptation in a progressiv~ nation, with a constitution which visualizes ..\n\na movement towards socialism must, therefore, be construed in the context of the whole setting of urges enshrined in the Constitution and what their satisfaction demands. So constirued, it may involve changes in the very features considered basic today.\n\nI think it has been properly. pointed out by Mr. Niren De, the Attorney. General, and Mr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article 368, in a Constitution is to act as a safety valve against violent revorution. It can only so operate as a safety valve if we do not construe the powers of amendment contained in it so narrowly as to import, contrry to the clear meaning of its explicit language, any bar again.t the alteration or change of any features of our Constitution which may be characterised as basic.\n\nWe have been taken through a number of principles of interpretation and construction of documents, including a document such as our Constitution, containing the fundamental law of the land. It ha~ been properly pointed out that the amending power, in so elaborate a Constitution, could not possibly omit from its ambit or scope the power of amendment of any part of it so that the 24th Amendment merely clarifies the original intention to lodge a wide amending power within the bosom of Article 368. It has been rightly pointed out that the careful manner in which the Constitution, and, particularly, .the amending Art'icle 368 was framed precludes the possibility of a delibrate casus omitsus so as to exclude from its scope the making of any provision which may either take away or abridge or affect a funda-· mental right or any other basic feature. In any case, in such a Consti-- tution as ours, we must strongly lean against a construction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed. Without express words in Article 368 itself to that effect, I am not prepared to merely presume or infer the presence of any casus omissus here.\n\nIt was no doubt argued, on the strength of the Golak Nath case (supra), that direct or indirect abridgement or taking away of a fundamental right by an amendment under Art. 368 was expressly barred by ' the language of Art. 13 (2) of the Constitution. I am in agreement with the views of my learned brethern who hold that Article 13(2) Is meant to deal with ordinary laws or the functions of the Parliament and of State Legislatures in their ordinary law-making capacities. It was not intended to extend its scope indirectly to Article 368 which deals with the amendment of the fundamental law\n\n.874 SUPREME COURT REPOllTS (1973) Supp, S.C.ll.\n\n:itself of which Article 13(2) is a part. The language and the context as well as the subject matter of it, found stated in Article 13(2) of the Constitution itself, preclude me from holkling that it could possibly operate as a restriction on the powers of amendment of any part .of the Constitution contained in Article 368 of the Constitution even\n\nbCfore it was amended by the 24th Amendment.\n\nThe majority of the learned Judges of this Court in Golak Nath case (Supra) held that the power of amendment itself and not merely its procedure was contained in Article 368 of the Constitution. They also held this power of amendment to be wide. Hidayatullah, J., however, thought that the ambit of the term \"law'', as used in Art.icle 13(2) of the Constitution, was wide enough to cover a change in the fundamental law on which Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by a narrow majority of one in favour of the opinion that Art. 13(2) operates as an express restric'\n\ntion upon the powers contained in Article 368 even though it does not say so expressly. The limitation was inferred from the wide meaning given to the term \"law\". But, the view of the majority of Judges -0f this Court who have had the occasion to consider this question, that is, if we include or add the number of those who gave decisions in Sajjan Singh v. State of Raiasthan( 1 ) and Sri Sankari Prttsad Singh Deo v. Union of India and State of Bihar('), is still in favour of the view that the word \"law'', as used in Article 13(2) of the Constitution, .does not extend to the fundamental law or the Constitution. If it was really the intention to so extend it, at least Article 13(2) would have clarilied it.\n\n[ am not impressed by the contention that Article 13(2), as origi- nally passed by the Constituent Assembly, contained a specific exemption of the powers of amendment exercised under Article 368 of the Constitution which was dropped afterwards. If the dropping of this .clause was intended to bring about also drastic a change in the inten\n\ntion of the Constitution makers as the counsel for the petitioners contends for, there would have been some explanatian given by the draft ing Committee for such a change. Moreover, we have not been shown what authority the drafting committee had to adopt language imply\n\ning so drastic a change of 'mtention of the Constituent Assembly with out even bringing the matter to the notice of the Constituent Assembly.\n\nThe safer presumption is that the drafting committee dropped the addi\n\ntion proposal by Mr. Santhanam and adopted by the Constituent Assembly merely because it onsiclered !he additional words !. be ot'iose and unnecessary.\n\n\n'~} [1952] S.C.R. 89.\n\n. KESAVANANDA I/, KERALA (!Jeg, J.) 875\n\nOµr ConstitutiQll . itself contains in various places a distinction between tJ/.c , Constitution and the law. It mentions both the \"Constitution and the law\" suggesting that there is a difference between them .made by the Constitution itself. Sec : C.K: :-\n\n(1) Form of oath of the President prescribed by Arti, clc 60 of the\n\nConstitiition to \"preserve protect, and defend \"tlie Constitution and the law\".\n\n(2) The form of oath pr affirmation, prescribed by Article 159 of the Cori&titution for the Governor of a State to \"protect and defend the Constitution and the law\". ·\n\n(3) The form of oatl1 prescribed by Article 75(4) for a Union-\n\nMinister given in Schedule III-F'>rm I to do \"right to all manner of people in accordance with the Constitution and the law\" ..\n\n( 4) The form of oath prescribed for a Judge of the Supreme\n\nCourt, under Article 124(6) of the Constitution, given in Third Schedule-Form IV, to ·\"uphold the Constitution and the laws\". The form is the same for the Comptroller and Auditor:-General of India under Article 148(2) of. the Constitution. ·\n\n(5) The form of the oath prescribed by Article 164(4) of the Constitution for a Minister of a State Government given in Third Schedule Form V to \"do right to all manner of people in accordance with Constitution and the law\".\n\n(6) The form of oath prescribed by Article 219 of the Constitution for a High Court Judge given in Form VIII-Third Schedule to\"uphold the Constitution and the laws\".\n\nClause 7 of the Fifth Schedule part D, of the Constitution only explains the meaning of word amend as covering an \"addition,\n\nvariation or repeal\" and similar is the case with clause 21 of the Sixth Schedule. I am not attracted by the distinction between amendments,\n\nwhich are \"deemed'\" not to be amendments, falling within Article 368, mentioned in the Fifth and Sixth Schedules, and actual amendments covered by Article 368. The word \"deemed\" was used in these provi\n\nsions and articles 4 and 169 merely to indicate that the procedure required by Article 368 was not required here. These provisions certainly furnish an aid in construing and fixing die meaning of the word \"amendment\" wherever used in the Constitution. And, as I have already held, the scope of amendment must necessarily be wide in the context of the whole Constitution, . . ·\n\n8 76 SUPllME OOUllT JIEPOllTS [.1973 J Supp. s.c.R.\n\nIdnay a:lso be noticed that the tc'rm ''law\",, whith is not used iB Article 368 at ali is sought to be defined in Article 13,' sub artic; le (3) of the Constitution, after stating explicitly . \"artless the context otherwise requires\". I have already dealit with the context of Article 368 containing the power of amendment which necessarily operates on every part of the Constitution so long as it~ operation on any pan iS not founcF. expressly excluded. ·\n\nHowever, even ignoring the ontext in which Article 13(3) itselt occurs and other foregoing reasons, if we were to assume, for the sakeof argument, that, because law: iS not exhaustively defined by Article\n\n13(3) of the Constitution, the term \"law\" used there could include the law of the Constitution, another princip~ of construction could alsoapply here. This is that even a prior general provision followed by an express provision dealing with a particular type of Jaw could reasonably exclude the particular and special from the purview and scope\n\nof the general. It is immaterial if the general provision precedes the provision containjng a special law. This could not really affect the basis of the principle applicable.\n\nThe principle indicated above has been usually applied bctwecll' different pieces of legislation or to different Acts. There is no doubt that when the subsequent Act is general and the piior Act is special~\n\nthe Special Act is not repealed by the provisions of, the general Act by the application of the maxim : \"Generalia specialibus non di:rogant'' i.e. provisions will not abrogate special provis, ions (See : Craies on Statute- Law p. 376). Again, '.'if a special enactment, whether it be in a public or private Act, and a subsequent general Act or absolutiely repugnant and inconsistent with one another'', it has been said that \"the Courts; have no alternative but to declare the prior special enactment repealed by the subsequent general Act\". See: Craie<s on Statute Law p. 380).\n\nOn the same principle, it has been held that a subsequent particular Act may have the effect of partially repealing the earlier general Act.\n\n(See : Mirfin v. Attwood,(1) Heston & /sleworth U .D.C. v. Grout,(\"> Harishankar Bagla v. M. P. State).(').\n\nThe above mentioned principle has been applied generally where the question has arisen whether the , particular .Jaw .prevails overl and~ therefore, repeals the general law .. It has, however; also been held that the principle may operate to merely curtail the operation of the generaf law by exempting from its scope the special cases dealt with by the-\n\n( 1)\n\n[ 1869] L:R. 4 Q.B. 331>. (') [1897] 2 Ch. 306. (') A.l.R. 1954 S.C. 465.\n\nKESAVANANDA I/, KERALA (Beg, J.) 877\n\nparticular law (See: Re Williams;(') Mirfin v .. Attwood, Harishanker Bagla v. M. P. State (Supra).). In other words, the priru:iple may so operate as to curb or reduce the extent or ambit of applicability of the general law. An application of this principle would also show that Constitutional law, as Special Law, may be removed from the purview of \"law'', as found in Article 13 of the Constitution, even 'if, by stretching one's imagination, it was really possible to so Stretch the scope of the term \"law\", as used in Article 13 of the Constitution, as would include, but for such a principle, amendments of the Constitution. Prima facie, however, amendments of the Constitution operate on every prvision of the Constitution unless any part of it is express! y excluded from the scope of such operation, The use of such a principle to remove an assumed conflict does not appear necessary.\n\nMr. Palkiwala, presumably faced with insurmountable difficulties in relying entirely upon the very narrow majority decision in Golak Nath's case (Supra), in favour of the view that Article 13(2) operates as a restriction upon the power of amendment contained in Article 368 of the Constitution, relied primarily upon a theory of implied limitations. The only \"implied\" lin:iitation which I can read inm the word amendment, as \"perhaps\" necessarily implied, or, as part of the meaning of the word \"amendment\" is the one so characterised by Wanchoo J., in Golak Nath's case (supra). In other words, it may not include the power of completely abrogating the constitution at one stroke. It, however, seems wide enou&h to erode the Constitution completely step by step so as to replace it by another.\n\nThe Attorney General himself had, very properly, conceded that the scope of amendment ould not be so wide as to create a vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. The Attorney General's argument was that, short of creating such a vacuum, the power is wide enough to cover a replacement of the present Constitution by. another. It seems to me that the necessary implication of the word \"amendment'' or the meaning of the term itself may exclude a possible complete abrogation of the present Constitution although that could be done, step by step, by the bodies empowered to amend if they so desired and followed the appropriate procedure.\n\nFor the reasons already given at length by my brethern Ray, Palekar, Mathew and Dwivedi with whom I con, ur, I find that there is nothing in cases cited which could enable us .to put in implied !imitations, in a constitution such as ours, on Article 368, containing expressly the i; overeign law-making power of amendment of every part of it. The\n\n( 1) [1887) 36 Ch. D. 573 @ p. 577. 56-36 S. C. India/73\n\n878 SUPREME cOURT REPORTS [1973] Supp. s.c.R.\n\ncases .hve really littl~ bearing on the interpretation of such a provision containing the constituent power. As they were cited before us andexamined by us, I will very briefly refer to the main cases cited.\n\nThe American cases really go against the submission that relied limitations could be put on expressly stated constitutional powers. They were: Oscar Leser v. /. Mercer Garnett(') U. S. A. v. William H.\n\nSprague &William /. Howey,( 2 ) State of Rhode Island v. A. Mitchell Palmer, Attorney General etc.(') Schneiderman v. U.S.(').\n\nThe cases from Australia decided by the Privy Council were : McCawley v. The King(°), Taylor v •. Attorney General of Queensland(\") where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption tht the power transferred to a British Colonial Legislature must be read subject to the fundamental assumption underlying the Constitution of the British Empire that the position of the Crown has not been affected; Webb v.\n\nOutrim,(') where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected; Victoria v. Commonwealth,(') where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v.\n\nBurah,(') a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside Section 51 of the Australian Constitution, which laid down the powers of taxation of the Federal Legislature, in the course of which some observations were made on the implications of Federalism which assumes the continued existence of States~\n\nThe cases from Canada may lend some support to the implications of a grant of power contained hy an enactmenr of the sovereign British Parliament, but they do not appear to me to be helpful in the context of the theory of the sovereignty of our Constitution, of which Article 368 is a pivotal part, which we have adopted. The cases from Canada\n\n( 1) 258 U.S. p. 130.\n\n( 2 ) 282 U.S. p. 7t6. (') 253 U.S. p. 350. (') 320 U.S. p. 118@ p. 137-145. (\") 1920 A.C. p. 691.\n\n( 8) 23 C.L.R. p. 457. (') [1907] 'A.C. p. 81. ( ') 45 Australian L. J. p. 251.\n\n( 9) (1878) 3 A.C. 889.\n\nKESAVANANDA V. KERALA (Beg, J.) 879\n\ncited before us were : Alberta Press cases(') Switzman v. Elbing &\n\nAttorney General of Quebec,(') Saumur v. City of Quebec & Attorney General of Quebec,(') A. G. for the Province of Ontario & Ors. v.\n\nA. G. for the Dominion of Canada & Anr.(') where the assumption, underlying some of the decisions, that Canada did not poissess fully blossomed legislative power, seems to have been repelled ; In Re the Initiative and Referendum Act, where legislation offending Section 92 head I of the British North America Act, 1867 ; was held to be invalid.\n\nSo far as Ryan's case,( 5) is concerned, Mr. Palkiwala could only rely on the minority judgment of Kennedy, C.J. In Moore v. Attorney General for the Irish State,(\") it was conceded on behalf of a petitioner who had challenged the validity of an Act of the Irish Parliament that the majority decision in Ryan's case was correct. I do not think that the Irish cases give much help to the petitioners' submissions on implied limitation.\n\nCases coming up from Ceylon also do not assist the petitioners. In the Bribery Commissioner v. Pedrick Ranasinghe,(') a provision of the Bribery Amendment Act, 1958, was held to be bad because it conflicted with the provisions of Section 29 of the Ceylon (Constitution) Order in Council, 1946, by which the C:onstituion of Ceylon was governed. It is, therefore, a simple case of conflict of an enactment of subordinate law-making authority with the instrument of Government which regulated subordinate law-making powers and was, therefore, supreme. In that case the requirements of manner and form as laid down in Attorney-General for New South Wales & Ors. v. Trethowan & Ors.,(') were also held not to have been complied with.\n\nIn Don fohn Francis Douglas Liyanage & Ors. v. The Queen,(') it was held, with regard to the Acts the validity of which was impug11ed :\n\n\" ...... the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice.\n\nThe Colonial Laws Validity Act, 1865, which provided that \"colonial laws should be void to the extent that they were repugnant to an\n\n(') 1938 (2) D.L.R. p. 81. '(2) 1957 (7) D.L.R. p. 337.\n\n( 8) 1953 ( 4) D.L.R. p. 461. {') [1912] A.C. p. 571. {\") [1935] Irish Reports p. 170.\n\n( 8) [1935] A.C. p. 484. (') 1965 A.C. p. 172.\n\n(8) 1932 A.C. p. 526. {') 1967 (1) A.C. p. 259.\n\n880 SUPREME. COURT REPORTS [1973] Supp. s.c.R.\n\nAct of the United Kingdom applicable to the colony but not otherwise and should not be void on' the grounds of repugnancy to the law of England, did not leave in eXistence a fetter of repugnancy to some vague and unspecified law of natural justice : those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon (Constitution) Order in Council, 1946, was to confer on the Ceylon Parliament the full legislative powers. of a sovereign independent state\".\n\nThis case shows that repugnancy to some vague principle of \"natural justice\" could not invalidate the enactments of a fully competent legislative authority.\n\nThere can be no question of delegation of the power of amendment if, as I have already indicated, I hold that the Constitution is the principal and the source -Of all constitutionally valid power and authority in the eye of law. The principle delegatus non potest delegare is only applicable against a delegate but not against the principal. When an amendment is made by an appropriate procedure, the amendment becomes a part of the principal's own will and intention and action.\n\nOf course, if the principal is and must necessarily be a human authority, the bodies of persons authorised to amend under Art. 368 of the Constitution would share the legislative spvereignty and would constitute the ''Principal\" whose will is expressed in the amendment.\n\nIt may be possible to use the test of consequences in order to check an abuse of power by. a legally non-sovereign law-making body as the Parliament is when it does not exercise the Constituent power by the use of the two-thirds' majorities in both Houses of Parliament as required by Article 368 of the Constitution. It may als, o e po!\\Siblc to use the theory of implied limitations by implying and annexing rules of natural justice to particular kinds of non-legislative functions laid down by statutory or even constitutional law. But, this is done only by presuming that the Constitution did not int.end abrogation of the fundamental rules of natural ]ustice. If these rules are sought to be dispensed with by any particular ordinary enactment it may be possible to assail the validity of that enactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles 14 and 19 by a constitu\" tionally valid amendment only carves out or creates a new legisbtive field by a provision which becomes a part of the Constitution. by amendment, so that the constitutional validity of its creation cannot be assailed in any court of law so long as the form and manner prescribed by Article 368 of the Constitution have been observed in making the necessary amendment. Enactments properly falling within this field would be immune from attack for any alleged violat, iOns of Articles 14 and 19 n .\n\nKESAVANANDA fl, KERALA (Beg, J.) 881\n\nMr. Palkiwala then made an impassioned appeal to the theories of natural law and natural rights sought to be embodied in present day international laws as well as Constitutional laws. It is not necessary for me to deal at length with the political philosophy or the juristic implications of various and conllicting natural law theories, such m those of\n\nSpinoza, Hobbes, Locke or Rousseau, discussed by T. H. Green in his \"Principles of Political Obligation\". I also do not find it necessary ro\n\nmbark on an academic discussion of ancient and medeival theories of natural law. I will, however, quote a passage from Friedmann on Legal Theory (5th Edition-p. 95-96), where the palition, place, and uses of \"natural law\" theories arc thus summarised :\n\n\"The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in the course ' of the last 2,500 years, the idea of natural law has appeared, in some form or other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions abour natural law have changed. The only thing that has remained constant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.''\n\n\"Natural law has fulfilled many functions. It has been the principal instrument in the transf_ormation of the old civil law of the Romans into a broad and cosmopolitian system ; it has been a weapon used liy both sides in the fight between the medieval Church and the German emperors ; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natilral law that American judges, professing to interpret the Constitution, resisted the attempt of state legislation to modify and restrict the unfettered eoonomic freedom of the individual.''\n\n\"It would be simple to dismiss the whole idea of natural law as hypocritical disguise for concrete political aspirations and no doubt it has sometimes exercised little more than this function.\n\nBut there is infinitely more in it. Natural law has been the chief though not the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time. When the social structure itself becomes rigid and absolute, as at the time of Schoolmen, the ideal too will take a static and absolute contenr. At other times, as with most modern natural law theories, natural law ideals become relative or merely formal, expressing little more than the yearning o~ a generation which is dissatisfied with itself and the world, which\n\n882 SUPREME COURT REPORTS (1973] Supp. s.c.R.\n\nseeks something higher, but is conscious of the relativity of values ..\n\nIt is as easy to deride na.tural law as it is to deride the futility of mankind's social and political life in general, in its unceasing but\n\nhitherto vain search for a way out of the injustice and imperfection for which Western civilisation has found no other solution but ti> move from one extreme to another\".\n\n\"The appeal to ome absolute ideal finds a response in men, particularly at a time of disillusionment and doubt, and in times of simmering revolt. Therfore natural law theories, far from being theoretical speculations, have often heralded powerful political and legal development; s\".\n\nI am not prepared to use any n_atural law theory for putting a construction on Article 368 of the CCtnstitution which will defeat its plain meaning as well as the objects of the Constitution as stated in the Preamble and the Directive Principles of State Policy. I do not know of any case in which this has been done. Even in the Golak Noth's case (supra) Subba Rao, C.J. relied on a natural law theory to strengthen his views really based on an application of the supposed express bar contained in Article 13(2).\n\nI have. already stated my point of view, that we should approach the questions placed before us from the pragmatic angle of the changing needs of social and economic orders visualised by those who were or are the final Judges of these needs in exercise of the Constituent puwer.\n\nChecks on possible abuses of such powers do not lie through actions in Courts of law. The pressure of public opinion, and the fear of revolt due to misuse of such powers of amendment are the only practically possible checks which can operate if and when such contingencies arise.\n\nThese checks lie only in the political fields of operation. They are not subject to judicial review or control. In other words, what Dicey alls the external and the internal limits may operate to control and check possible misuses of such power. Courts of justice have no means of control over a power expressly sanctioned by the Constitution which is the legal sovereign. They can only speak for the Constitution.\n\nThrough their pronouncements must be heard the voice of the Constitution and of nothing beyond it.\n\nAlthough the Courts must recognise the validity of the exercise of a legally sovereign constituent power, such power may itself be ineffcc .. tive for actually bringing about the desired results. Whether tJie change is in the direction of what_ may be considered better may itself be a matter of dispute. The answers to such questions and disputes depend upon many conditions which are outside . te control 0£ law c?urts.\n\nThe very existence or absence of such cond1t10ns cannot be appropriately\n\nKESAVANANDA V. KERALA (Beg, J.) 883\n\ninvestigated or determined in law Courts. Therefore, such investigations lie outside the judicial domain when once a change is brought in by the exercise of constituent or sovereign law making power in accordance with the prescribed procedure.\n\nA socialistic stat~ must have the power and make the attempt to build a new social and economic order free from exploitation, misery and poverty, in the manner those in charge of framing policies and making appropriate laws think best for serving the public good. We do not today conceive of public good or progress in terms of a \"movement from status to contract\", but in terms of a movement for control of economic and other kinds of powers of exploitation by indivlduals so as to ensure that public good not merely appears to be served but is actually served by all individuals wherever or however placed.\n\nThe emphasis today is upon due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are correlative.\n\nAnother contention advanced was that a creature of the Constitution could not po; sibly possess the power to create or recreate the constitution. Therefore, it was contended, resort could not be had to Article 368 to expand the power of amendment. I am unable to accept this contention in the face of the express provision in clause ( e) to the proviso to the Article 368(2) of the Constitution. There, Article 368 expressly provided either for the expansion or diminution of the scope of the powers of amendment. It cannot, therefore, be reasonably ccn tended that the power of recreation even of the whole Constitution by stages was not already contained in the unamended Article 368. This part of proviso also shows that the Constitution makers contemplated' a wide amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations. We cannot contract what the Constitution makers clearly intended to make elastic and expansible.\n\nfor the foregoing reasons, I hold that the 24th Amendment of the Constitution is valid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The reasons for the validity of each of these amendments have been so fully dealt by my learned brethren Ray,.\n\nPalekar, Mathew, and Dwivedi, with most of which I respectfully concur, that I need not discuss or repeat any of them here. Nor have I, for this very reason, attempted to discuss the enormous array of cases, both Indian and foreign, or the great many juristic writings, placed before and closely examined by us. I will, however, indicate before I conclude, my special reasons for holding Section 3 of the Constitution\n\n(25th Amendment) Act 1971, adding Article 31C to the Constitution also as valid.\n\n884 SUPREME COUllT REPORTS (1973) Supp. S.C.R,\n\nArticle 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of Article 39 of the Constitution from the vice of invalidity on the ground that any such law \"is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution\". If we stop here, the question whether the law is really for the purpose of glving effect to the principles specified in clauses (b) or ( c) of Article 39 would still be justiciable whenever laws passed under this provision come up before Courts. In other words, the question of relevancy of the law passed to the specified principles could still be examined by courts although the effect of invalidity for alleged violations of Articles 14 or 19 or 31 would vanish so long as the law was really meant t<;> give effect to the principles of Article 39(b) and ( c). A colourable piece of legislation with a different object altogether but merely dressed up as a law intended for giving effect to the specified principles would fail to pass the test laid down by the first part. The second part of Article 31C goes on to provide that, if such a law contains a declaration that it is for giving effect to such policy, it will become immune from judicial review altogether. In cases of laws passed by State legislatures there is a further safeguard that such laws must have been reserved for consideration by the President and assented to by him. The purpose of the declaration is, therefore, to take the place of a judicial verdic.t on relevancy of the grounds to the principles found in clauses (b) and ( c) of Article 39 as well as on effectiveness of these laws for the intended purposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the Union of India, conceded, both in written submissions and in the course of arguments, that the <JUestion of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed.\n\nMy learned brother Khanna has been pleased, despite the concession mentioned above, to declare the second part of Article 31C to be void on' the ground among others, that it involves a trespass on the judicial field. It was said that, under the guise of exercise of the power of amendment, one of the pillars of the Constitution or one ot the essential features of its basic structure, that is to say, judicial review, had been removed.\n\nI thinlo that the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. t is that a declaration by itself is not part of the law ade, but .1t s something only attached to the law even though this annexal!on 1s by a purported law. In other words, the declaration, though provided for\n\nKESAVANANDA ti. KERALA (Beg, J.) 885\n\nby law, takes the place of judicial consideration by tbc Courts and involves consideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law.\n\nI do not think that it is necessary for me to decide what the exact nature of the function in giving the declaration is or whether it carries with it, by implication, the proposition that some rules of natural justice must be complied with. Such questions were not argued before us by any party. Nevertheless, I think that the concession could only be made on the strength of the view that the declaration by itself would not preclude• a judicial examination of the nexus so that Courts can still determine whether. the law passed is really one covered by the field carved out by Artide 31C or merely pretends to be so protected by parading under cover of the declaration. I, therefore, adopt this reason as perfectly good one for making the concession. Hence, I hold that both parts of Article 31C arc valid.\n\nOn questions relating to the Amendment of Article 31 (2) and the 29th Amendment of the Constitution, I adopt the reasons of my learned brethe.rn Ray, Mathew and Dwivedi with whose conclusions I concur <>n these and other questions.\n\nMy conclusions may now be stated as follows :\n\n(1) The majority view in Golak Nath's case (supra), holding that Article 13 operated as a limitation upon the powers of Constitutional amendment found in Article 368, was erroneous. The minority view there was correct on this question.\n\n(2) The 24th Amendment is valid.\n\n(3) The 25th Amendment, including addition of Article 31 C, 1s valid.\n\n(4) The word 'amount' in Article 31(2), as amended, does not convey the idea of any prescribed norm. The fixation of the amount or the laying down of a principle for determining the amount are matters within the exclusive power of Parliament or the State Legislature concerned. In other words, the norms and their satisfaction on the question of adequacy of compensation or its reasonableness, are matters within the exclusive competence of the legislative authorities to determine.\n\n(5) The declaration contemplated by Article 31 C is like a certificate given after considering the relevancy of the principles specified in Article 39(b) and (c) of the Constitution, and, therefore, the jurisdiction of the Court is not ousted.\n\nThe Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece\n\n886 SUPREME COURT REPORTS [1973] Supp. S.C.R,\n\nof legislation or to a law which has no bearing on or nexus with the principles found in. Article 39(b) and (c) of the Constitution. Out of two equally acceptable views, even on the question of nexus, the one in conformity with the legislative verdict should prevail.\n\n(6) The 29th Amendment is valid.\n\nI would also have the petitions disposed of in the light of decisions given above. I make no order as to costs incurred by partiep for this stage of hearing\n\nDWIVEDI, /.-I concur with the conclusions reached by brother Ray with respect to the constitutionality. of the 24th, 25th and 29th amendments. But in view of the importance of the case I wish to add my own reasons in support of those conclusions.\n\nIdtas which failed to win the minds of Englishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India now. Perceive some resemblances :\n\nIdeas duritlg the Stuart Period\n\nI. \"Acts of Parliament 'r\\lay take away fto\n\nwer3 andorna'llents of the crown but not the crown ine!f .. , •.... \"{1)\n\n2. \"The ParHament tannot deliver over the free... peopte of England to a foreign government, or to laws imposed by foreigners ......... \"(')\n\nS. \"The Parliament cannot deprive the free\n\npeopte of Engtand.oftheir innate rihts of electin~ knights, citizens and burge. sses for Parliament. In these things\n\nof the nature of these tending to the fund mental rights and law.1 of the peop!e the parliament cannot nor ought not any way to violate thepeopleor nation.\"(1)\n\nArguments of Sri Palkhiwala\n\nt. By virtue of Art. 368 Partiament\n\ncarinot so amend the Contitution\n\nas to take away or abridge the essential features of the Cons. ti tu ti on.\n\n2. Parliament cannot so amend the\n\nCon1titution as to make the Republic of India a satellite of a foreign coun try.\n\n3. Parliment cannot so amend the Con ..\n\nstitution as to damage or destroy thecore ofthefundamentalrightsinPart III of the Con, titution.\n\n(') Sir John Finch C.J., Fundamental Law in English Constitutional History by J. W. Gough, 1955 Edn. p. 73.\n\n(2) William Ball of Barkham Esquire, Ibid, p. 107.\n\nKESAVANANDA v. KERALA (Dwivedi, J .) 887\n\nIdeas during the Stuart Period Arguments of Sri Palkhiwala\n\n4. \"Properties are the foundaion of Consti- . tutions, and not the con>titutions of property. Or if so be. there were no conltitution yet Law of Nature does give a principle for every man to have a property ofwhat he has or may have which is not another man's. \"(1)\n\n4. The right to property is a humam\n\nright and is necessary for the enjoy\n\nment of every other right.\n\nIt is based on Natural Law. It cannot be taken away or abridged by an amendment ofthe Constitution.\n\n5. \"How \"\"ny representative, that has not only a more trust to pre>erve fundamen\n\ntal but that is a representative that makes laws, by virtue of this fundamental Jaw, viz. that the people have a power in lcgislation ... canhave a right toremove or destroy that fundamental?\n\nThe fundamental mak'a the peop!e free: this free peop!e make3 a repre5entative; can this creature unqualifythecreator ?'' {1)\n\n6. •'When an act of Parliament is against common right or reason ... , the Common Law will controlitandadj- •ulge such act to be void.\"(1 )\n\n7. ''Cases which concern the life or inheritance, or goods-or forcur.es of subjects ..... are not to be decided by natural reason, but by artificia{ reason and judgmentof!aw, \\Vhich\n\nlaw is an act \\Vhich requires !ong study and experience before that a man can attain to thecognizance(:/:_t.\" (')\n\n5. Parliament is a creature of the Con ... stitution. It cannot rise above its creator i.e., the Constitution. So it cana\"ot dAmage or destroy the core of the fundamental rights.\n\n6. Amending power in Art. 368 is limited by the principle! of Natural Law and an amendment in violation\n\nlfthee principles will be voiq.\n\n7. The inherent and implied limitations\n\nro rhe amend; ng po...., er in Art. 36R wilt be determined by judge!' posse-·\n\nssing a trained and perceptive judicial mir:d.\n\n-·---··------------- ---- ·-----------\n\nOf the three contenders for primacy in the Stuart period-King, Parliament, Common Law-Parliament came out victorious.(') The King and the Common Law accepted its supremacy. Stuart England\n\n( 1) Captain Clarke Gough, supra, p. 115.\n\n( 2) Quaker William Penn, Ibid., p. 155.\n\n( 8) Coke in Dr. Bonham's case, quoted in the Revival of Natural Law concepts by C. G. Heines, 1930 Edn. pages 33-34.\n\n(') Coke as quoted in the English Constitutional Conflicts of the Seventeenth Centure 1603-1689 by J. R. Tanner; 1961 Student Edn. p. 37.\n\n(\") F. W. Maitland, Constitutional History of England (Paper back reprint\n\n(1963) pages 300-301.\n\n888 SUPREME COUJIT REPORTS [1973] Supp. s.c.It.\n\nwas passing through an age of transition. So is Jndia today. \"We arc passing through the great age of transition. . when we arc passing through' the great age of transition the various systemr-even systems of law-have to undergo changes. Conceptions which had appeared to ru hasic undergo changes.\"(') (emphasis added). At bottom the controversy in these cases is as to whether the meaning of the Constitution ccmsists in its being or in its becoming. The Court is called upon to decide whether it is a prison.Jiouse or a freeland, whether it speaks fur\n\nthe few or for the many. These issues can hardly be resolved with the aid of foreign legal know-how. Decisions of foreign courts and treatises\n\nnd articles written on various constitutions by foreign writers would not be safe guide in construing our constitution. \"(I)n the last analysis the decision must depend upon the words of the Constitution. . and since no two constituions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without quali- £cation to another. This may be so even where the words or expressions used are same in both cases, for a word or phr:!Se may take a -colour from its context and bear dif!erent senses accordingly.\" (In Re.\n\nc.P: & Berar Sales of Motor Spirz't Lubricants Taxation Act, 1938).(1) For instance, law-makiing and constitution-amending are both called •Jaw' in Canada and Ceylon because a constitutional amendment there is really a subordinate enactment passed under a statute of the British Parliament or under an Order-in-Council which is delegated legislation.\n\nOur Constitution \"is something fresh and in that sense uniqut . . . It seems to me therefore that it is useless to try and look at this through the eyes of another country or of their courts.\" (In re. The Delhi Laws\n\nAct, 1912).(') .\n\n\"A Constitution is the expression in national life of the genius of a people. It reflects the tendencies of the age and the articles have to be interpreted, without doing violence to the language, in the light of the pervailing phase of sentiments in the country in which the constitution is intended to operate.\" (Motilal v. State of U.P.) (') Constitutions which grew up in the 17th, 18rlh and 19th centuries reflected the hopes and aspirations of men of those times ; the Constitution ol India reflects the hopes and aspirations of the people of India emerging from colonial economy in the second half of the 20th century. Constitutions :framed in the past for organising political democracy cannot serve as a\n\n(1) Jawaharlal Nehru : C.A.D. Vol. 9 page 1194.\n\n( 2 ) [1939] F.C.R. 18 at page 38 per Gwyer C.J. (') [1951] S.C.R. 747 at page 1112 per Bose J. (') A.I.R. 1911 All. 251 at page 297 per Sapru J.\n\nKESAVANANDA ti. IWw.A (Dwivedi, J.) 889\n\nsafe guide in construing the Constitution of India framed for ushering in social and economic democracy.\n\nConstitutions which grew up in the preceding three centuries were understood to sanctify the Supremacy of Property. Said Tocqueville :\n\n\"The French Revolution has allowed one exclusive right to remain, the Tight of property, and the main problerus of politics will deal with the alterations to be brought about in the right of property-holders.\"(') Our Constitution is conceived in a radically different tradition. Otir forbears did not believe in the acquisition of things of pleasure (Preya) ; theystood for the good and the whoelsome (Shrey). They addressed th_eir king as Rajan because it was his duty to secure the welfare of his people.(') Their rule of law (Dharma) was intended to help the power-minus keep the power-plus 'in check. Their rule of law (rita) was a stream, not a puddle. It recognised the inevitability of change.\n\nThey believed in the moral precept : distribute and enjoy the residue of wealth.(')\n\nThe Constitution bears the imprint of the philosophy of our National Movement for Swaraj. That philosophy was shaped by two pre-eminent leaders of the - Movement--:-Mahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the philosophy of Ahimsa.\n\nTwo essential elements of his Ahimsa are:\n\n(1) equality; and (2) absence of the desire of self-acquisition (Apri grah). He declared that \"to live above the means befitting a poor country is to live on stolen food.''(') And he also said : \"I consider it a sin_and injustice to use machinery for the purpose of concentration of power and riches in the hands of the few. Today the machinery is used in this way.\"(')\n\nWhile Mahatma Gandhi laid stress on the ethics of the Movement, Jawaharla! Nehru enriched its economic content. In his presidential address to the Lahore Congress Session of 1929 he said : \"The philosoph y of socialism has gradually permeated the entire structure of the society the world over and almost the only point in dispute is the phase and methods of advance to its full realisa'.tion. India will have to go that way too if she seeks to end her poverty and inequality though she\n\n( 1) As quoted in French Political Thought in the 19th Century by Roget Henry Soltau, p. 55.\n\n( 2) Mah.ablmrata, Shanti Prava, 57: II.\n\n( 8) Mah.abhuata, Shanti Prava, 60 : 11.\n\n(') Dr. P. Sitaramaya, \"The History of the Indian Congress, Vol. I, page 386. (') JawaharW Nehru : Discovery of India, Signet Press, 1956, page 432.\n\n890 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nmay evove her own methods and may adopt the ideal to the genius of her race.\"(')\n\nEmphasising the intimate and inseverable connection between national liberation and social liberation, he said : \"(l)f an indigenoils Government took place. of the foreign government and kept all the vested interests in tact, this would not be even the shadow of freedom ..\n\nIndia's immediate goal can only be considered in terms of the ending of the exploitation of her people. Politically it must mean independence and cession of the British connection ; economically and socially it must mean the ending of all special class privileges and vested interests.(')\n\nThe philosophy of Mahatma Gandhi was rooted in our ancient tradition; the philosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the common denominator in their philosophies was humanism. The humanism of the Western Enlightenment comprehended mere poltical equality ; the humanism . of Mahatama Gandhi and Jawaharlal Nehru was instinct with social and , economic equality. The former made man a political citizen ; the latter aims to make him a 'perfect' citizen. This new humanist philosophy became the catalyst of the National Movement for Swaraj.\n\nIn 1929 the All India Congress Committee resolved that the great poverty and misery of the Jndian people was due also \"to the economic structure of the society.\"(') The KaracHi Congress resolution. on fundamental rights and economic programme revised in the All India Congress Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions.(') It provided that \"property was. not to be seque.1, tered or confiscated \"save in accordance wit.h la11J\"(')\n\n(emphasis added). It also provided that the State shall own or control the key industries and se, i-vices, mining resources, railways waterways,' shipping and other means of public transport.\" (6) According to the Congress Electipn Manifesto of 1945, \"the most vital and urgent of India's problems is how to remove the curse of poverty and raise the\n\n( 1) R. D. Agarwala, Economic Aspect of a Welfare State in India, po.ge 32.\n\n( 2) Jawaharlal Nehru Whither India, 1933. (') Indian National Congress Resolutions on Economic Policy, Programme and Allied Matters, 1924-1969, p. 3.\n\n(') Resolutions, supra pp. 6-9.\n\n(') Ibid.\n\n(6) Ibid.\n\nKESAVANANDA \"· KERALA (Dwivedi, J.) 891\n\nstandard of masses.(') It declared that for that purpose it was \"necessary, ..... to prevent the concentration of wealth and power in the hands of individuals and groups, and to prevent vested interests foimical to s, ociety from growing.\"<') It proposed acquisition of the land of iptermediaries on payment of equitable compcnsat'ion.(1) In November 1947 the All India Congress Committee Session at Delhi passed a resolution tcf the effect that the object of the Congress should be to secure \"an economic structure which would yield maximum production without the creation of private monopolies and the concentration of wealth.\"(') It was thought that such \"social structure can provide an alternative to the acquisition of economic and political equality.\"(\") ·\n\nIn sum, the National Movement was committeed : (1) to work for social, economic and political equality of the weaker sections ofthe people ; (2) to disperse concentration of wealth in any form in a few hapds ; and (3) to acquire property in accordance with law. Payment of compensation would be. determined by equitable , considerations and n-01: by market value. The men who took the leading part in framing the Constitution were animated, by these noble ideals. They embodied them in the Preamble to the Constitution ; they proliferated them in the Directive Principles of the State Policy ; they gave them ascendancy over the rights in Part III of the Constitution. (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31(41., (5) and (6)). They made them 'fundamental' in the governance of the country. Pandit\n\nGovind Ballabh Pant called them 'vital principles'.(') And indeed so they arr. for when translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right.\n\nHowever, pleasing its name-plate or its trumpet, every form of focussed power was suspect in the eyes of the Constitution-makers. They apprehended that concentration of the ownership of the means of production and material resources and the resultant incarceration of wealth in a few profit-seeking hand may bring into being an economic power as all-assimilating and omnicomperent as the Hegelian State.\n\nIt may manipulate a fall in the prices of raw-materials ; it may inflate the prices of manufactures by low production and hoarding ; it may increase unemployment and bring down wages ; it may shrink invest-\n\n( 1) Ibid p. 14\n\n( 2) Ibid. p. 14.\n\n( 8) Ibid. pp. 15-16.\n\n(4) Ibid. pp. 18-19. (') Ibid. pp. 18-19.\n\n(6) C.A.D. Vol 9 p. 1288.\n\n892 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nments and control the industrial progress of the nation.(1) It may seek to influence politics and public opinion.(') It may try to threaten,\n\nrstrain and change governments in self-interest.(8 ) It may endanger\n\nliberty, the rule of law and peace.(') It may retard national unity, the growth of culture and education.(•) To prevent these manifold abuses of the econoic power, the Constitution-makers enacted Articles 39(b) and (c). It will be legitimate to bear in mind the preemptive significance of Part IV in understanding the Constitution.\n\nIt is now necessary to consider whether the majority decision in Golaknath(8) is correct.\n\nResidence of Amending Power\n\nIn Golaknath Wanchoo J. and two other Judges who associated with him and Hidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the Constitution is located in Art. 368.\n\nSubba Rao C.J. and four other learned Judges who associated with him, on the contrary, held that Art. 368 does not grant the power of amending the Constitution. It merely provides for the procedure for amendment of the Constitution. I respectfully agree with the view that the amending power resides in the original Art. 368.\n\nDespite the marginal note to Art. 368, which indicates that Art. 368 is prescribing the pr81:edure for amendment, several considerations clearly show that the amending power is located in Art. 368. Article. 368 provides specifically for a procedure for amending the Constitution: When the prescribed procedure is strictly followed, \"the Constitution shall stand amended in accordance with the terms of the Bill.\" Parliament can bring about this result by strictly following. the prescribed procedure. Who can bring about a certain result may truly be said to have the power to produce that result. Power to amend the Constitution is accordingly necessarily implied in Art. 368.\n\nArticle 368 finds place in Part XX of the Constitution. It is the solitary Article in that part. If provision was being made in Art. 368\n\n(1) J. K. Gailbraith : American Capitalism, pp. 21, 40 and 64; Jfeport of the Monopolies Inquiry Commission (1965) Vol. 1 pp. 125, 128, 132 and 134.\n\n(\") J. K. Gailbraith, Ibid, p. 123; Bertrand Russel ,....Power (Unwin Books) p. 85; Monopolies Inquiry Commission Report p. 136. (') B. Russel, Ibid. pp. 86, 88 and 124; Monopolies Inquiry Commission Report pp. !, 135 and 193. (') J. K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World Polities : London Maemillan and Co. Ltd. 1962, p. 4. (') Monopolies Inquiry Commission Report, p. 136.\n\n(•) (1967) 2 S.C.R. 762.\n\nXESAVANANJ>A fl. XEllALA (Dwivcdi, J.) 893\n\nmerely for procedure for amending the Constitution by Parliament, the Constitution-makers would have placed it logically under the heading \"Legislative procedure\" in Part V of the Constitution. Including the solitary Art. 368 in a separate part suggests that it was intended to confer the amending power as well as to provide for the amending procedure. The heading of Part XX is \"amendment of the Constitution\" and not \"procedure for amendment of the Constitution\".\n\nThe heading will include both power as well as procedure. The proviso to Art. 368 also shows that the amending power is lodged therein.\n\nPower to amend the Constitution cannot reasonably be located in Entry 97 of List I of Schedule VII read with Art. 248 of the Constitution.\n\nThe idea of a provision for amending the Constitution was indisputably present in the minds of the Constitution-makers. If they had considered that the power to amend the Constitution was in its nature legislative, they would have surely included in express words .this power in a specific entry in List I. Article 248 and Entry 97 of List I confer residuary power on Parliament. Article 246 and List I confer certain specific powers on Parliament. Residuary power is intended to comprehend matters which could not be foreseen by the Constitution-makers at the time of the framing of the Constitution. As the topic of amending the Constitution was foreseen by them, it could not have been put in the residuary power. Article 245(1) confers power on Parliament \"subject to the provisions of this Constitution.\" Articles 246 and 248 are subject to Art. 245. Accordingly, a law made under Art. 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 foe amending any provision of the Constitution would be inconsistent with that provision.\n\nAccordingly it would be invalid. But on following the prescribed procedure in Art. 368 there ensues a valid amendment of the Constitution. So Art. 248 and Entry 97 cannot includo the power to amend the Constitution. The history of residuary power in our country also indicates that the power to amend the Constitution cannot be subsumed in the residuary power. Section 104 of the Government of India Act, 1935 provided for .residuary power. The Governor-General could by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in Schedule VII.\n\nActing under s. 104, the Governor-General could not empower either Legislature to make a law for. amending the Government of India Act. The power to amend the said Act vested exclusively in the British Parliament. While the Constitution was on the anvil, residuary power was proposed to be vested in the States. If that power had been vested in the States, it could not have been possible to argue that the Oiinstitution could be amended by resort to residuary power because the amending bill is to be.initiated in Parliament and not in the Sta!es. It was only at a later stage that\n\n57-36 s. c. Jndla/73\n\n894 SUPREME COURT REPORTS [1973} Supp. s.c.R.-\n\nt?e residuary power was inluded in List I. The foregoing considerat10ns show that the amending power does not reside in Art. 248 and Entry 97 of List I. As already stated, it is located in Art. 368 of the Constitution. Article 304(1) of the Draft Constitution was similar to Art. 368. Article 304(2) enabled States to amend the Constitution as regards the method of choosing a Governor or the number of Houses of the State Legislature. In clause 18 of his letter dated Februarv 21 1948 to the President of the Constituent Assembly, Dr. B. R. Ambedkar:\n\n;-vhle .forwardir; g the Draft, Constitution, sai~ that a pi; ovision giving a hmaed constituent power to the State Legislature has been inserted in Art. 304.\n\nThe procedure prescribed in Art. 368 is the exclusive procedure for amendment of the Constitution. The word 'only' in Art. 368 rules out all other procedures for amendment. So no law can be made for a referendum or a constituent assembly.\n\nA referendum or a constituent assemb)y will reduce Art. 368 to redundance. Referendum was not accepted by the framers of the Constitution. Dr. B. R. Ambedkar said : \"The Draft Constitution has eliminated the elaborate and difficult procedure such as a decision by a convention or a referendum.\n\nThe powers of amendment are left with the Legislatures, Central and Provincial\".(')\n\nNature of Amending Power\n\nWith respect I find 'it difficult to share the view of Hidayatullah J. that the amending power in Art. 368 is a legislative power.' (Golakl)ath, Supra at page 900).\n\nDuring the British period neither the people of this cotJntry nor their elected representatives were endowed with the power to make or amend their Constitution Act. The Constitution Act by which they were governed until August 14, 1947 was enacted by the British Parliament. The power to amend that Act was vested in that Parliament.\n\nThe elected representatives of the people could until that date make only legislative laws under the Constitution Act, The Constitution Act endowed them with a legislative power. Under s~. 99 and 100 of .the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under sections 42, 43 and 44 and s. 72 of Schedule IX the Governor General made ordinances. The Governor made ordinances and Acts under sections 88, 89 and 90. The headings of all those provisions describe the law-making power as 'legislative power'. The framers of the Constitution were 'familiar with the hist<>,\n\nrical meaning of the expression 'legislative power' in this country. The> were also aware of the meaning of 'constituent power'. Acoordingly, it is reasonable to believe that they have made a distinction between\n\n( 1) CA.D. Vol. 7, page 43.\n\nKESAVANANDA 11. XEllALA (Dwivedi, J.) 895\n\n'legislative power' and 'constituent power'. Indeed they have described the power of making legislative laws as a 'legislative power'.\n\nThe heading of Part XI is 'Distribution of Legislative Powers' ; the heading of Art. 123 is 'legislative power of the President' ; the heading of Art. 213.is 'legislative power of the Governor'. It may be observed that the fralllers did not include Art. 368 under the heading iegislative power' or in Part XI or in tlte company of the provisions dealing with the legislative procedure in Part V of the Constitution. They placed I it in a separate part. This omission is explained by the fact that they were making a distinction between 'legislative power' and 'constituent power', Broadly speaking, 'constituent power' determines the frame of primary organs of Government and establishes authoritative standards for their behaviour. In its ordinary sense, legislative power means power tomake laws in accordance with those authoritative standards. Legislative power may determine the form of secondary organs of Government and establish subordinate standards for social behaviour.\n\nThe subordinate standards are derived from the authoritative standards established by the 'constituent power. Discussing the concept of 'legislative power', Bose J. said : \"We have to try and discover from\n\nt~ Constitution itself what the concept of legislative power looked like in the eyes of the Constituent Assembly which conferred it. When that body created an Indian Parliament for the first time and endowed it with life, what did they think they were doing ? What concept of legislative power had they in mind ? .... First and foremost, they had the British model in view where Parliament is supreme in the sense that it can do what it pleases and no Court of law can sit in juc!gment over its Acts. That model it rejected by introducing a federation and dividing the ambit of legislative authority. It rejected by drawing a distinction hetween the exercise of constituent powers and ordinary legislative activity ........ \" (In re. The Delhi Laws Act 1912 (Supra) at page 1112).\n\nParliament's additi1mal power to amend certain provisions ot the Constitution by ordinary law would not obliterate the distinction between constituent power and legislative power. Constitutions may be uncontrolled like the British Constitution, or controlled like the Constitution of the United States of America. There may be a hybrid class of constitutions, partly controlled and partly uncontrolled. In an uncontrolled constitution the distinction between constituent power and\n\nlegislativ~ power disappears, because the legislature can amend by the law-makmg procedure any part of the constitution as if it were a statute. In a controlled constitution the procedure for making laws and for aeding the constitution are distinct and discrete. No part of the conshtut1on can be amended by the law-making procedure. This distindion between constituent power and legislative power in a control-\n\n896 SUPllEME COtJaT llEP<mTS ( 1973 j Supp. s.cJ1.\n\nled constitution proceeds from the distinction between the law-making procedure and the consutution..amendmg prvcedure. Our Constitution\n\nis of a hybrid pattern. It is partly controJJed and partly uncontrolled. It is unctlntrolled with respect to those provisions of the Constitution\n\nwhicli may be amended by an ordinary law through the legislative procedun: ; .it is controled with respect to the remaining provisions which may be amended only by following the prqcedure prescribed in Art. 308.\n\nWhen. any part of the Constitution is amended by following the leg, slative p1,:>cedure, the amendment is the result of'the exercise of the legislative power ; when it is amended through the prdure prescribed by Art. 368, the amendment is the result of the exercise of theconstituem power. The amending power conferred by Art. 368 is a constituent power and not a legislative power.\n\nDominion of Amending Power The phrase \"amendment of this Constitution\" is the nerve-centre of Art. 368. It is determinative of the dominion as well as the magnitude of the amending power. The words \"this Constitution\" in the phrase embra~ the entire Constitution, as according to Art. 393 \"this\n\nConstitution\" is called \"the Constitution of India\". These words are also used in Arts. 133(2) and 367(1), (2) and (3). In those provisions these words would envelop each and every provision of the Constitution.\n\nThey shot)-ld convey the same meaning in Art. 368. Accordingly each and every provision of the Constitution including Part In falls within the sway of the ai:gending power.\n\nIn re: Barubari Union and Exchange of Enclaves(') it is said that' \"the preamble is not a part of the Constitution\". This remark cannot assist the argument that a Preamble is not liable to amendment.\n\nIt seems to me that the Court really intended to say that the Preamble is not enacting part of the Constitution. On October 17, 1949 the Constituent Assembly passed a resolution to the effect that \"the Preamble stand part of the Constitution.\"(')\n\nAccording to Art. 394 that article and articles 5 to 9, articles 60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force on November 26 1949, while \"the remaining provisions of this Constitution\" were to co:Ue into force on January 26, 1950. It is dear from the phrase \"the remaining provisions of this Constitution\" that the Preamble also came into force on January 26, 1950. Replying to Sri K. Santhanam's question in regard to the date of thecoming into force of the Pr=ble, Shri Alladi Krishnaswami Ayyar said : \"The Preamble will come into force in all its plentitude when the Constitution comes into force.\"(')\n\n(') [ 1960] 3 S.C.R. 250 at page 282. (') C.A.D. Vol. X, p. 456.\n\n(') C.A.D. Vol. X, p. 418.\n\nJU!SAVANANDA 11. KEl\\ALA (Dwivedi, J.) 897\n\nA statute has four parts-title, preamble, enacting clause and purview or body.(') The Preamble to the Constitution of the United States of America is regarded as a part of the Constitution.(') The heading \"the Constitution of India\" above the Preamble shows that the Preamble is a part of it.\n\nAs the Preamble is a part of the Constitution, it is liable to amendment under Art. 368. Those parts of the Preamble which operate on the past such as \"this 26th day of November, 1949\" may perhaps not be capable of nlodification. 'Even Jove hath not power on the past'.\n\nBut there is little doubt that such parts can be deleted by the exertion of the amending power.\n\nIn sum, no provision of the Constitution can claim immunity from the sway of the amending power. The amending power can amend each and every provision of the Constitution including the Preamble and Part lll.\n\nMagnitude of Amending Power\n\nThe magnitude of amending power is measurable by the broadshouldere<l word \"amendment\" in Art. 368. According to Wanchoo J., the word \"amendment\" should be given its full meaning as used in law and that means that by amendment an existing constitution .. can be changed, and this change can take the form either of addition to the existing provisions or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether.\" ( Golaknath, supra at page 834). Hidayatullah J. said: \"I do not take a narrow view of the word \"amendment\" as including only minor changes within the general frame-work. By amendment new matter may be added, old matter removed or altered.\" (Ibid, p. 862) Bachawat and Ramaswami jJ. gave the same extensive meaning to the word \"amendment\". Thus according to six out of eleven judges in Golaknath, the word \"amendment\" means amending by addition, alteration or repeal.\n\nAccording to the Shorter Oxford English Dictionary \"amendment\" means \"removal of faults or errors ; reformation esp. (law) in a writ or process 1607.\" According to Webster's Third New International Dictionary, it means \"act of amending esp. for the better, correction of a fault or faults, the process of amending as a motion, bill, act or constitution that will provide for its own amendment ; an alteration\n\n( 1 ) Crawford : Starutory Construction (1948 &In.) p. 123 : Sutherland : Statutory Construction (1943 &In.) Vol. 2, pp. 348-349; Haloburg's: Laws of England, Vol. 36, p. 370, Craics on Statute Law (1963 Edn.i) pp. 190 and 201.\n\n( 2 ) Willoughby, Constitutional Law of the United States (1929 &In.), Vol.\n\nT, p. 62.\n\nS98 SUPREME coUIT REPOllTS [ 1973 ]\" Supp. s.c.a.\n\nproposed or effected by such process.\" According to the ltandom House Dictionary of the English Language (Unabridged Edn.) \"amendment\"· means \"to alter, modify, rephrase or add to, substract from (a motion, bill, constitution etc.) by formal procedure, to change for the better, improve, to remove or correct faults.\" According to Crawford .\n\n(tatutory Construction (1940 Edn.) page 170) there \"arc many diife. rent definitions of the term amendment, as it applies to legislation. Generally, it may be defined as an alteration or change of something, proposed in a bill or established as law. We are not, however, here . concerned with the amendment of the proposed bills, but with the amendment of existing laws. Thus limited, a definition as suitable as any, defines an amendment as a change in )IOme of the existing provisions of a statute. Or• stated in more detail, a law is amended wl:ien it is in whole or in part permitted to remain and something i& added to or tan from it or it is in some way changed or altered in order to make it more complete 6r perfect or effective.\" According to these definitions the power to amend means the power to make an addition to or alteration in or subtraction from the text. The purpose of addition, alteration or subtraction may vary; it may be to make the text or some part of it more oomplete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step ; some part of it must remain while the other is repealed.\n\nThe Constitution docs not define the word \"amendment\". Article 367(1) applies the General Clauses Act to the interpretation of the Constitutiol\\. The Ai:t also docs not define \"amenctment\". However, section 6A p, rovides that where any Central Act repeals any enactment by which, the text of any Central Act was \"amended hy express omission, insertion or suhstitution of any matter\" the repeal unless different intention appears, shall not affect the. continuance of \"any tuch amend- -nt made by the enatment so repealed\" and in operation at the time <lf such repeal. Section 6A shows that. \"amendment\" includes addition, substitution and omission. There is no reason why this definition which was known to the Constitution-makers sliould not apply to \"amendment\" in Art. 368.\n\nAccording to the petitioners, \"amendment\" in Art. 368 is used in the narrow sense of making improvements. Now, an improvement may be made not only by an addition, but also by ossion or. repeal. us the curing of an error in the text undoubtedly improves 1t. Accordmg ro Hidayatullah J. it \"was an error to include (the right of property) Jn (Part III)\". (Golaknath, supra at page 887). The removal of this error by an amendment under Art. 368. will surey improve the. text of the Constitution. It will remove the roadblock m the way of implementing Part IV of. the Constitution. Further, every mover of an\n\n.KESAV,\\.NANDA \"· KFJIALA (Dwiuedi, J.) 899\n\namendment considers his proposal as an improvement in tlfe existing text and the Court should not substitute its own evaluation for that of the mover of the amendment.\n\nThe grants of legislative power arc ordinarily accorded the widest amplitude. A fortiori, the constituent power in Art. 368 should receive the same hospitable construction. The word \"amendment'' should be so construed as to fructify the purpose underlying Art. 368. The framers of the Constitution have enacted- Art. '368 for several reasons. First, the working of the Constitution may reveal errors and omissions which could not be foreseen by them. Article 368 was designed to repair those errors and omissions. Second, the Court's construction the Constitution may not correspond with the Constitution-makers' intention or may make the process of orderly government difficult.\n\nThe first Amendment to the Constitution became necessary on account of the decision of this Court in the State of Madras v. Srimathi\n\nChampakam Dorairajan(') and the decision of the Patna High Court in Kameshwar Singh v. State of Bihar('). Third, the Consti!Uent Assembly which framed the Constitution was not elected on adult franchise and was in fact not fully representative of the entire people. On January 22, 1947 Jawaharlal Nehru said: \"We shall frame the Constitlllion, and I hope it will be a -good constitution, but docs anyone in this House imagine that when a free India emerges it will be bound -down by anything that even this House might lay down for it ? A free India will sec the bursting forth of the energy of a mighty nation. What it will do and what it will not, I do not know, but I do know th:i.t it will not consent to be bound down by anything . . . . . . It may be that the Constitution, this House may frame may not satisfy an India, that free India. This House cannot bind down the next generation or people who will duly succeed us in this task.\"(') On November 8, 1948 he reiterated : \"While we who arc assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution a11d every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected so ...... should have an easy opporturiity to make such changes as it wants to ...... \"('). The Constitution-makers conferred very wide amending power on Parliament because it was believed that Parliament\n\n(') [1951] S:C.R. 525.\n\n( 2) A.I.R. 1951, Patna p. 91.\n\n( 8) C.A.D. Vol. 2, pap 322-323. (') C.A.D. Vol. V, pp. 322-323.\n\n900 SVPREME COIJP.T JtEPOllTS [ 1973] Supp. s.c.11.\n\nelected on adult franchise would be fully representative of the entire people and that such a Parliament should receive a right to have a fresh look at the Constitution and to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of self-preservation. Self-preservation implies mutation, that is adaptation ro the changing environment. It is in the nature of man to adjust himself to the changing social, econoll'.ilc and political conditions in the country. Without such adaptation the people decays and there can be no progress. Kant said : \"One age cannot enter into an alliance on oath to put the next age in a position when it would be impossible for it to extend and oorrect its knowledge ; or to makic any progress whatsoever 'in enlightenment. This would be a crime against human nature whose original destiny lies precisely in such progress. Later generations are thus perfectly entitled to dismiss these agreements as unauthorised and criminal.\" (1) ·\n\nSpeaking in the same vein, Jawaharlal Nehru said : \"In any event we should not make a Constitution such as some other great countrie> have, which are so rigid that they do not and cannot be adapted to changing conditions.\n\nTodayspecially, when the world is in turmoil and we are passing through a very swift period of transition, wJiat. we\n\n1 may do today may not be wholly applicable tomorrow.\n\nTherefore, while we make a constitution which is sound and as basic as we can, it should also be flexible.(')\"\n\nArticle 368 is shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and political conditions of its time. Most of the Constitution-makers were freedom-fighters. It is difficult to believe that those who had fought for freedom to change the social and political organisation of their tin; ie wo; tld deny the identical freedom to their descendents to change the social, economic and p0litical organisation of their times.\n\nThe denial of power to make radical changes in the Constitution to the future generation would invite the danger of extra constitutional changes of the Constitution. \"The State without the means of some change is without means of its conservation. 'Nithout such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve.\"(')\n\n(') Kant's Political Writings, Edited by Hans Reiss, Cambridge University Press, 1970, p. 57. (') C.A.D. Vol. 7, p. 3.22.\n\n(B) Burke : Recollections on the Revolution in France and other \\vritings Oxford University Preas, 1958 Reprint, p. 23.\n\nXESAVANANDA II. JtEJW.A (Dwi11~Jj, J.) 901\n\nThe context also rc; nforces the widest meaning of the word \"amendment''. The proviso to Art. 368 states that if an amendment of the Constitution seeks to make any \"change\" in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso contemplates an amendment by way of a 'change' in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) \"change\" means \"substitution, or succession of anything in place of another ; alteration in the State or quality of anything; variation, mutation, that which is or may be substituted for another of the same kind.\" The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and 6ubstitute another List therefor by strictly following the procedure prescribed in Art. 368 and its proviso. The words \"amendment\" and \"amend\" have been used in Arts. 107(2), 108(1) and (4), .190(3), 110(1) (b), proviso to Art. Ill, Arts. 147, 196(2), 197(1)(c) and (2)(c), 198(3), 199(1) (b), 200, 201and395. In all these provisions those words include the power of repeal or abrogation. Article 110(1) (b) provides that a Bill shall be deemed to be a Money Bill if it contains a provision dealing with \"the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of\n\nIndia.\" Without doubt, the word \"amendment\" would also include repeal or abrogation of a law with respect to any financial 9bligation undertaken or to be undertaken by the Government of IndiJ.\n\nThe word \"amendment\" cannot be confined to mere minor changes. To the same effect is Art. 199(1)(b) in relation to the States. Article 147 provides that in Chapter IV of Part V and in Chapter V of Part VI references to any substantial question of law as to the interpretation of the Constitution shall be construed as including reference to any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment \"amending or supplementing that Act\"). Herc also the word \"amending\" would take in any\n\nenactmt which has repealed any provision of the Government of India Act, 1935.\n\nArticle 395 provides that the \"Indian Independence Act, 1947 and the Government of India Act, 1935, together with all other enactmcnts amending or supplemcnting the law. . . . are hcreby\n\nrepealed.\" Herc again, the word \"amending\" includes an enactment which has repealed any provision of thc Governmcnt of India Act, 1935.\n\nIt cannot be said that thc framers of the Constitution intended to con tinue an enactment which has repcalcd an essential provision of the Government of India Act, 1935.\n\nParagraph 7 of Schedule V to the Constitution reads: \"(!) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule\n\n902 SUPREME COURT REPOllTS tl973] Supp, S, CJt.\n\nis so amended, any reference to this Schedule in this Constitution shaU be canst.rued as .reference to such Schcc;!ule as \"° amended : (2) No ruch law as 1s mentioned in sub-paragraph (!) of this paragraph shall be deemed to be an amendment of tills Constitution for the purpose of Art. 368.\"\n\nIn paragraph 7 (I) the words, \"addition, variation, or repeal\" do not enlarge the meaning of 'amend'; they are cxpositive of it. If the word \"amendment\" in Art. 368 did not include the power of repealing a provision of the Constitution, sub-paragraph (2) could not have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Art. 3 or by an amendment of the Constitution under Art. 368. (Berubari Union, supra).\n\nIt would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinry law enacted under paragraph 7 of Schedule V or by an amendment under Art. 368. The amending power under Art. 368 which provides for amendment of the Constitution by a more difficult p!IOCedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to the Constitution.\n\nAccording\" to Art. 33 Parliament may by law determine to what extent any of the rights conferred by Part III shall in their application to the members of the Armed forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure better discharge of their duties and the maintenance of discipline amongst them. It is open to Parliament to make a law abrogating the fundamental rights of the citizens for the time being employed in the Army and the forces charged with the maintenance of public order. For instance, it is open to it to make a law ab•ogating the freedom of speech of persons employed in the Army. For the reasons already discussed in relation to paragraph 7 of Schedule V, it cannot be disputed that Parliament may abrogate the fundamental rights of the citizens employed in the Army or forces charged with the maintenance of public order in the exercise of the amending power under Art. 368.\n\nThe power of a Constituent Assembly, which is a representative body, to frame a constitution is unlimited and unconfined. Its absolute power is explained by the fact that it is called upon to chart a process of government of a coutry. Ii; t carrying ?ut its_ task. it has to take decisions on matters of high policy. The high £0wer is made to. match the high purpose. The nature of the powe.r conferred on Parhment bv Art. 368 is similar to the power exercisable by .• Constent Assembly. Therefore the amending power in Art. 368 is as unlimited\n\nKESAVANANDA \"· KERALA (Dwivedi, J.) 903\n\nand unconfined as the power of a Constituent Assembly. Indeed, it may truly be said that Parliament acts as a Continual Constituent Assembly.\n\nThe history of Article 368 supports the broadest construction of the word \"amendment\". Article 368 is similar to Art. 304 of the Draft Constitution. Article 305 of the Draft Constitution is material for our purpose. It relevantly read : \"Notwithstanding anything contained in Art. 304, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the legislature of any State ...... shall not be amended during a period of 10 years from the commencement of this Constitution.\"\n\nPart XIV of the Draft Constitution made reservation of cats in Parliament and State Legislatures for Muslims, Scheduled Castes, Scheduled Tribes and Indian Christians. The word \"amended\" in Art 305 unmistakably include the repeal of the provisions prescribing the reservations. As Art. 305 was an exception to Art. 304, the word \"amendment\" in Art. 304 would include the power of abrogating the reservations. As in Art. 304, so in Art. 368 \"amendment\" should include the sense of repeal and abrogation.\n\nAccording to Sri Palkhiwala, whenever the Constitution-makers intended to confer the power of repeal on any authority, they have expressly said so as in Arts. 35(b), 252(2), the proviso to Art. 254(2) and Art. 372(1) and (2). In all these provisions the words \"alter, repeal or amend\" are used with reference to a law. As \"amend\" would not authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly conceded the power of repealing the entire law. So these provisions do not help the argument of Sri Palkhiwala that \"amendment\" in Art. 368 should be given a narrow meaning.\n\nTo sum up, the nature, object and history of the amending power and the context of Art. 368 leave little room for doubt that the word \"amendment\" includes the power of repealing or abrop; ating each and every provision of the Constitution. It may be that Parliament may not be able to annhilate the entire Constitution by one stroke of pen.\n\nBut it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the physician's needle but also the surgeon's saw. It may amputate any part of the Constitution if and when it becomes necessary so to do for the good health and survival of the other parts of the Constitution.\n\nMeanjng of 'Law' in Art. 13(2)\n\nThere is a distinction between 'constituiion' and 'law'. (Ordinarily a 'constitution' signifies a politico-legal document. President Wilson\n\n904 SUPREM!! ootm JU!P01TS [ 1973] Supp. s.c.Il.\n\nonce said that the U.S. Constitution has been, to a considaable extent,\n\na political document and not a mac 'lawyers document'.(') Ort the otha hand, in its ordinary sense 'law' signifies a statute or a legislative\n\nenactment. Again, a 'constitution' prescribes the paramount norm or norms ; a law prescribes derivative norms. They .are derived f!Om the paramount norms. The reckoning of a constitutional amendment in the eye of law is the same as that of a constitution. Therefore ordinaril y a constitutional amendment is not law. Significantly, there is not a whisper of the word 'law' in Art. 368.\n\nThe context of the word 'law' in Art. 13(2) does not show that it includes an amendment ~£ the constitution made under Art. 368. The word 'law' in Art. 13(1) obviously does not include a constitution. No constitution existing at the time of the commencement of our Constitution and taking away or abridging the fundamental rights of the\n\npeopk: confared by Part III of the Constitution has been brought to our notice in spite of the assiduous research of Sri Palkhiwala. Article 13(3)(a) provides for an extensive definition of the word 'law' by including things which are not ordinarily regarded as included in it.\n\nIt mentions an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. But it does not include the Constitution which in the ordinary sense does not mean 'law'.\n\n• A di.!tinction between 'constitution' and 'law' is made in the Constitution itself. According to Art. 60 the President of India has to\n\ntke the oath that he will preserve, protect and defend \"the Constitution and the law\". Article 159 requires the Goveroor of a State to take the\n\nsame oath. A Minister of the Union and a State, the Judges of the Supreme Court and High Courts and the Comptroller and Auditor General also take the same kind of oath. U the framers of the Constitution had regarded the Constitution as 'law', they would oot have\n\nseparately mentioned the Constitution in various oatlis. ·\n\nvarious provisions of the Constitution indicate that e product which comes into being by following the legislative proceilure prescri bed\" in Arts. 107 to 111 is .called 'law'. The heading over Arts. 107 and 196 reads as \"Legislative Procedure\", When the prescrij)ed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Art. 368 is strictly followed, it results in the amendment of the Constitution.· The Constitution-makers clid pot call it 'law'.\n\nOrdinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other apcies .. 0f the State. While making an amendment under Art. 368, Parliament acts as a constituent authority and not as a State organ.\n\nThe body\n\n(') C. G. Hains: Role of the Supreme Court in American Goverruru:nt and. l'olitics, 1944 Edn., p. 44.\n\nIWAVANANDA \"· ltl!llALA (Dwivedi, J.) 905\n\nmaking a law in accordance with the procedure prescribed under Arts. 107 to 111 and an amendment according to the procedure prescribed in Art. 368 may be the same, but the two functions arc fundamentally different in character. It is common knowledge that often there is a polarisation of various functions in one and the same body.\n\nFor instance, the House of Lords in Great Britain exercises legislative functions as well as judicial functions. It may pass a Bill by a bare majority of the Lords assembled in a particular session. But all the Lords minus the Lord Chancellor, the Law Lords and such other Lords as have held or arc holding high judicial offices cannDt decide a civil appeal. On the other hand, three Lords selected from any one of the last three categories of Lords may decide a civil appeal. The functional difference accounts for this apparent paradox of numbers. The members of the Dominion Parliament of India could not, by their unanimous vote, make the Constirution of India. But the same membersacting as the Constituent Assembly could, by a bare majority, make the Constitution. The functional difference in making a legislative law and an amendment of the constitution likewise explains the basic difference in the procedures prescribed in Arts. 107 to 111 and Art. 368. In case of difference on a Bill between the House of the People and the Council of States, the two Houses may meet unicamerally and pass a legislative measure. The President cannot refuse his assent to a Bill passed by both Houses bicamcrally or unicamerally. But an amendmenr of the Constitution under Art. 368 cannot be made by a vote in a joint sitting of the twp Houses. The two Houses must meet separately and pass the amending bill by the requisite majority. The President may withhold his assent to the Constitution amending biJI. It is on account of the functional difference between law making and constitution amending that a law passed by the unanimous vote of Parliament according to the procedure in Arts. 107 to 111 cannot override any fundamental right. A Bill passed by more than half of the members of each House assembled separately and by two third of the members present and voting will, however, result in the amending of the fundamental rights.\n\nLegislative power in Art. 245 is made 'subject to the provisions of this Constitution'. But Art. 368 is not made 'subject to the provisions of this Constitution'. Article 368 places only one-express fetter on the amending power, that is, the procedural fetter. A substantive fetter on the amending power is accordingly not contemplated by Art. 368. The framers of the Constitution were aware of the fact that certain foreign constitutions have expressly put the amend; ng power in substantive fetters. Indeed Art. 305 sought to place such a fetter on the Draft Art. 304 (corresponding to Art. 368). In the' absence of clear textual evidence, I am unable to expand the meaning of 'law' in Art. 13(2), for an expansive construction would permanently rule out the lawful\n\n906 SUPlllME COUil.T REPOll.TS [1973] Supp, S.C.ll.\n\nmaking of stnu:tura1 reforms in the social, economic and political frame of the country. Speaking on the First amendmene to the Constitution following the decision of this Court in State of Madr111 vs. Srimathi Champak,.an Dorairaian,(') on May 29, 1951 Jawaharlal Nehru said: \"We have to give them (the weaker sections of the society) opportunities-economic opportunities, educational opprtunities and the like.\n\nNow in doing that we have been told that we come lip against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we come up. against some principles of equality. That is a very peculiar position; We cannot have equality because we cannot have non-discrimination because if you think in terms of giving a lift to those who are down, you are somehow affecting the present status qua undoubtedly. Therefore, if this argument is correct, then we cannot make any major change in the status qua, whether economic or in any sphere of public or private activity.\" (2)\n\nThe word 'compensation' in the unamended Art. 31 (2) has been constnred by this Court to mean full market value of the acquired property. This construction creates a direct conflict between Art. 31(2) .and Art. 39(c). Article 39(c) enjoins the St!te to direct its policy towards securing \"that the operation of the economic system does. not result in the concentration of wealth and means of production to the common detriment.'' This object can never be achieved if full market value of the acquired properly is to be paid to its owner, The payment of full market value to the owner will change the form of the concentration of wealth from property to cash .. The concentration would remain. The history of our National Movement clearly shows that the\n\nConstitution-makers were committed to the accomplishment of the objects specified in Part IV of the Constitution. They have expressly declared that those objects are 'fundamental' in the governance of the country. It is accordingly reasonable to think that they have provided for the means of resolving the conflict between Arts. 31(2) and 39(c) or between Arts. 29 and 46. They must have intended that when a conflict arises between the rights in Part III and the obligations of the State in the Part IV, that conflict may be resolved by an amendment of the Constitution under Art. 368. \"My concept of a fundamental right is something which Parliament cannot touch tave by an amendment of the Canstitutian.\" (emphasis added) (S. Krishnan versus State of Madras)(').\n\n( 1 ) (1951) S.C.R. 525. (') Parliamentary Debates Vols, XJl-Xlll, Part 11-1951, pages 9616-9617. (') (1~51] S.C.R. 621 at page 652 per Boac J.\n\nKESAVANANDA \"· llEllALA (Dwivtdi, J.) 907\n\nThe phrase 'notwithstanding anything in the Constitution' is used in a provision granting power for e!11ancipating the grant from any restrictive provision in the Constitution. As the word 'law' in the Art. 13(2) is not intended to include an amendment of the Constitution, Art. 368 does not open with the non-obstantt clause.\n\nNo unmistaking conclusion can be drawn from the history of Art. 13(2) as to the meaning of the word 'law'. The Draft Report of the Sub- Committee on Fundamental Rights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights.(') Clause 2 of the annexure releva .. tly-provided that \"any law which may hereafter be made by the\n\nState inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency.\" By a letter of April 16, 1947, the Chairman of the Fundamental Rights u\\>.Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read: \"All existing laws or usages in force ........ inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency : nor shall the Union or any unit make any law taking away or abridging any such right.\"(') On April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim report to the President of the Constituent Assembly. The Report contained an annexure providing for fundamental rights. Clause\n\n(2) of the annexure materially read : \"All existing laws, notifications, regulations, customi or usages in force ...... inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abliidging any such right.\"(8) Shri K. Santha nam proposed an amendment substituting for the last words in cl. (2) the words \"Nor shall any such right be taken away or abridged except by an amendment of the Constitution.\" In his speech he explained that \"if the clause stands as fr is even by an amendmen~ of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient ........ In order to avoid any such doubts I have moved this amendment.\"(') So according to him the amendment was by way of abundant caution.\n\nSardar Vallabh Bhai Patel accepted the amendment. It was put to vote and adopted.(') The Constituent Assembly thus accepted the position that fundamental rights could be abrogated by a constitutional amendment.\n\n( 1 ) Shiva Rao, Framing of India's Constitution, Vol. II, p. 137.\n\n( 2) Ibid, p. 171.\n\n( 8) Ibid, p. 290. (') C.A.D. Vol. 3, pp. 415-416. (') Ibid, p. 415.\n\n908 SUPREME COURT 11.EPOJ.TS [1973] Supp. s.~.\n\nIn October, 1947, a Draft Constitution was prepared by the Constitutional Adviser.(') Section 9(2) of his Draft Constituti<!ll materially read : \"Nothing in this Constitution shall be taken to empower the State to make any law which curtai~ or takes away any of the rights conferred by Chapter II of this Constitution except by way of amendment of this Constitution under section 232 and any law made in contravention of this section shall to the extent of such contravention be void.\" Although the Constituent Assembly had expressly accepted the amendment of Sri K. Santhanam, the Drafting Committee omitted the words \"except by way of amendment of this Constitution.\" The relevant portion of Art 8(2) of the Draft Constitution read : \"The State shall not make any law which takes away or abridges the rights confei:red by this Part and any law made in contravention of this Part shall to the extent of the contravention be void.\" No explanation for excluding the words \"except by way of amendment of this Constitution\", which were approved by the Constituent Assembly, is to be found in the records. It is, however, important to observe that when the words \"except by way of amendment of the Constitution\" are omitted from Sri K. Santhanam's amendment, the remaining words \"nor shall any such rights be taken away or abridged\" are quite wide to proluoit the abrogation or abridgment of fundamental rights even by a constitutional amendment. The same effect seems to be produced by the words \"nothing in this Constitution\" in s. 9(2) of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted section 9(2) by Art. 8(2) of the Draft Constitution.\n\nArticle 8(2) of the Draft Constitution does not enmesh in plain words all the provisions of the Constitution including Art. 304. This may perhaps explain the omission of the words \"except by way of amendment of this Constitution.\" from Art. 8(2) of the Draft Constitution. In any case, this history of Art. 13(2) does not prove that the Drafting Commitee .intended t(> gi'.ve supremacy to fundamental rights over the Constitution amending power. In this connection 'it is important to refer to a note from the Constitutional Adviser's office that 'law' in s. 9(2) did not include an amendment of the Constitution.(')\n\nA careful reading of Dr. B. R. Ambedkar's speeches would show that the constitution amending power can be used to abrogate or abridge the fundamental rights. On November 4, 1948 he said :\n\n\"The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups. In the one group are placed Articles relating to: (a) the distribution of legislative powers between the Centre and the State,\n\n(b) the representation d the States in Parliament; and ( c) the ·\n\n( 1) Shiva Rao, supra, p. 7.\n\n( 2) Shiva Rao, Vol. IV, p. 26.\n\nKJISAVANANDA I/. KERALA (Dwivedi, J..)\n\npowers of th.e Courts, All other Articles are placed in another group• Articles placed in the second group cove~ a very large part of te Constitution and can be amended by Parliament by a double maJ<>\" rity namely a majority et not kss 'llian two third oi the members of. ach present and voting and by a majority of i; he t<>t:il membership of. each. HOU5C. The amendments. of these arttcles did not require ratification by the States:'(') (emphasis added).\n\nHo reiterated :\n\n\"It is only for amendments of specific matters-and they are only few-that the ratifications of the State legislatures is required. All other articles of the Constitution are. left to be amended by Par/ia. ment.\"(') (emphasis a:clded).\n\nOn another occasion he repeated :\n\n''Now, what is it we do ? We divide the articles of the Constitution under three eategOiies. The first category is one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two.- thirds majority. If the future Parliamen.t wishes to amend any particular article which is not mentioned in Part Ill or article 304, all that is necessary is to have two-thirds majority. Then, they can amend it.\n\nMr. President : Of members present.\n\nThe Honourable Dr. B. R. Ambedkar : Yes, Now, we have no doubt put certain. artkles iri a third category where for the purpose of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the State$.\"(\"}\n\n_ It would appear from these speeches that for the purpose of amend ment Dr. Ambedkar has classified all the Articles of the Constitution in three categories. The Articles must fit in one or the other of the three categories; for according to him there is no fourth category. Articles in Part Ill of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is not fair to interpret his speeches as showing that the Articles in Part III are not at all amendable. The word \"not\" in\n\n( 1) C.A.D. Vol. VII, p. 36.\n\n( 2) C.A.D. Vol. VII, p. 43.\n\n( 8) C.A.D. Vol. IX, pp. 660-663.\n\n58-36 S. C. lndia/7)\n\n910 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.\n\nth~ sentene \"if the future Parliament wishes to amend any particular a; ticie wh1h is not mentioned in Part Ill or article 304\" is presumably either a slip of tongue or a printer's devil. When Jawaharlal Nehru said that the fundamental rightswere intended to be \"permanent in the Constitution\", he did not really mean that they are not amendable:, His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject tlO amendment by any future Parliament.\n\nSri Karnath had moved an amendment to Art. 304 which expressly provided for amendment in the provisions of Part Ill, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have thought that the language of Art. 304 of the Draft Constitution was sufficiently spacious to include an amendment of the provisions of Part JII and that accordingly Sri Kamath's motion was unnecessary.\n\nThe phrase \"Constitution as by Jaw established\" in the President's oath would not establish that the Constitution is a law in the ordinary sense of the term. The word 'law' in the phrase, in my view, means lawful. The phrase would mean \"Constitution established in a lawful manner, that is, by the people through their representatives.\"\n\nThe oath of the President to defend \"the Constitution and the law\" does not bind him to the Constitution as it stood on the day he took the oath. The word 'law' undoubtedly means tlie law for the time being in force. A variation or repeal of a part of a law would not compro)]lise the oath. In the context of law, the 'Constitution' would mean the Constitution as varied or repealed from time to time.\n\nSri Palkhiwala has contended vigorously that people have reserved to themselves the fundamental rights and that those rights are sacred and immutable natural rights. Jc seems to me that it is an error to consecrate the rights enumerated in Part Ill of the Constitution as \"Sacrosanct' 1 or \"transcendental\" or to romanticise them as \"natural rights\" or \"primordial rights\" or to embalm them in the shell of \"inalienable and inviolable\" and \"immutable.\"\n\nTo regard them as sacrosanct does not seem to comport with the secular virtue of our Constitution. To regard them as \"natural rights\" or \"primordial rights\" overlooks the fact that the rights specified in Arts. 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28. 29, 30 and 32 were begotten by our specific national experience. They did not exist in India before the Constitution.\n\nKESAVANANDA v. KERALA (Dwivedi, J.) 911\n\nThe Constitution-makers did not regard the rights mentioned in Part III as 'sacrosanct' or as 'inalienable' and 'inviolable' or as 'immutable'. Jawaharlal Nehru said : \"So, if you wish to kill tills Constitution make it sacred and sacrosanct certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the way of stabbing it in the front and in the back. Because .whatever the ideas of the 18th century philosophers or the philosophers of the early 19th century. . . . . . . . nevertheless the world has changed within a hundred years-changed mightily\" ( 1).\n\nArticles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2), 25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold unpredictable limitations. Article 19(2) has invented a completely new restrictian to free speech, namely, 'friendly relations with foreign states' Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the 'reasonableness' of restrictions on the rights specified in Art. 19 was made unjusti.ciable in tbe State of Jammu and Kashmir. Clause (7) added to Art. 19 by the President provided that 'reasonable restrictions' in clauses (2), (3), ( 4) and (5) shall be construed as meaning such restrictions as the appropriate legislature in Jammu and Kashmir \"deems reasonable\". Article 35A applied to that State by the President made inroads into the rights of employment under the State, the right to acquire property the right to settlement and the right to scholarships and other aids in the State.\n\nArticle 303(2) empowers Parliament to make law giving preferences and making discrimination in the matter of inter., State trade if it is necessary to do so for dealing with a situation arising from scarcity of goods in any part of the country. Article 358 suspends rights under Art. 19 during the operation of the Proclamation of Emergency under Art. 352. Article 359 empowers the President to. suspend the rights under Art. 32 during Emergency, so that all fundamental rights may be made quiescent. All these provisions prove that the fundamental rights may be taken away or abridged for the good of the people. (Basheshar Nath vs. The Commissioner of Income Tax (2) ).\n\nRights in Part III are downright man made.\n\nAccording to Dr. B. R. Ambedkar, they are the 'gift of law'('). Article 13(2) and 32(1) and (2) and 359 expressly speak of the fundamental rights as\n\n( 1) Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625.\n\n( 2) [1959] Supp. I S.C.R. 528 at pages 604-605 p<r S. K. Das j. (') C.A.D. Vol. VII, p. 40.\n\n912 SUPllEME COURT REPORTS [1973] Supp. s.c.R.\n\n\"conferred by Part III\". They arc thus the creatures of the Constitution. They are called fundamental rights not because they arc reserved: by the l>t?PI~ to themselves but because they are made in. destructible by legislatl ve Jaws and executive action. There is no analogue .in the C0ns!ltution. to the X Amendment.of the U.S. Constitution which expressly speaks of the .reservation of p0wers 'by the people. It. is welf o rmember that the l Amendment takin& away or abrogating certam nghts was passed by the Constituent Assembly acting. as the Provisional- Parliament. lt reflects the Constitution~ makers' intention that' the rights can be abrogated.\n\nThe prescription of a. more rigid procedure for changing the provisions specified in the provisio to Article 368 underscores the fact that the framers of the COOstituti.on regarded them as more valuable than the provisions of Part IIL They attached more value to fsm than . to the fundamental righl; s; '\n\nInherent and implied limtta#1Jns on amending power\n\nWanchoo J. and two other karned Judges who associated with him have held that there are no inherent and implied limitations on the amending power in Art. 368 ( Golaknath, Supra at page 836). Bhachawat and Ramaswami JJ. shared their opinion. (ibid, pages 910 and 933). It seems to me that Hidayatullah J. also did not fiavour the argument of inherent and implied limitations. on the amending power, for he has said : ''The whole Constitution .is open to amendment;\n\nOnly two dozen articles are outside the reach of Art. 368. That too . because the Constitution has made them fundamental.\" (ibid, p. 878) •.\n\nSri Palkhiwala's argument of i.nherCllt and implied limitations may be reduced to the form of a syllogL\\m thus. All legislative powers arc subject to inherent and implied limitations.\n\nThe constitiient power in Art. 368 is a legislative . power.\n\nThe constituent power is subject to inherent :!Pd implied : limitations.\n\n• . If .the major and 111inor pre.mi~ in the syllogism are. valid, the conclusion alro must be va)id. Bµt both premises are fallacious. ~'- . legislative powers are not subject to any inhernt and implied limitations. Take the case of the War Pq:wcr, Dunne,~ coiu:s11 oi arau ments I had .sk!; d :sri Pa!)dllwala to point 9ut .· .=!llY mlm:cnt and implied limitation on the War Power, but he. c<ll!l.d .poiilt Q~ none.\n\nKESAVANANDA fl, XllRALA (Dwffiedi, }.) 9il.3\n\nWhen the President has issued a Proclamation of Emergency under Art. 352, the cardinal principle of federalism i; s in eclipse. Parliament may make laws for the whole or any part of the territory of India with respect to any of the matlters enumerated in the State List. (See Art. 250(1)). The cxorut:ive power of the Union shalt extend to the giving Of directions to any Sliate as to the manner in which the executive power thereof is to be exercised. Parliament may confer powers and impose duties or authorise the conferring of powers and the imposition af duties upon the Union officers and authorities in respect of a matter not en, umerated in !!he Union List. (Sile Alt. 353).\n\nThe teeth. of Art. 19 become blunted. (Sec Art. 358). The President may suspend the right to move any Court for the enforcement of. fundamental rights. (See Art. 359) it would virtually swpcnd the fundamental rights during Emergency. Article 83(2) provides that the House of the People shall continue for five years from the date appointed for its first meeting. According to its proviso, the period of five years may, while a Proclamation of Emergency is in operation,\n\nbe extended by Parliament by law for a period oot exceeding one year at a time. Evidently during Emergency the War Power of Parliament and the President is at its apogee, uncribbed and uncabined. It has already been shown earlier that the constituent power in Art. 368 is not a legislative power. As both premises of the syllogism are fallicious, the conclusion cannot be valid.\n\nAccording to Sri Palkhiwala, an inherent limitation is one which inheres in the structure of Parliament. Parliament consists of two Houses and the President. The House of the People its elected by adult franchise. It is argued that Parliament cannot make any amendment doing away with its structure. Its structure limits its amending potency. It is a big assflmption and should not be accepted widlout proof from the text of the Constitution. The Constitution does not embody any abstract philosophy. It is still seriously debated whether 'birds fly because they have wings' or 'birds have wings becau5e they fly'. Many maintain that function works change in structure. Proviso to Art. 83(2), Arts. 250, 353, 358 and 359 demonstrate that the structure of our polity and of Parliament suffer change from the tasks of Emergency. Article 368 itself can be amended to enlarge the amending power. The magnitude of the amending power is to be measured by the purposes which it is designed to achieve than by the structure of Parliament.\n\nImplied limitations cannot be spelt out \"i the vague emotive generalities of the Preamble: 'People', 'Sovereign', 'Democratic', 'Republic', 'Justice', 'Liberty', 'Equality' and '., Fraternity' arc plastic words, and different people have impressed different meanings on\n\n914 SUPREME COUllT REPORTS [1973] Supp. s.c.R.\n\nthem. Slavery had coexisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once 'believed that equality was not compromised by denying vote to the propertyless. Preamble is neither the source of powers nor of limitations on power. (In re. Barubari Union, Supra, p. 282).\n\n According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution.\n\nThe scheme of various provisions is to create primary organs of State arid to define, demarcate and limit their powers and functions. The scheme of Art. 368, on the 0th.er hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly jt must plainly have been the intention of the Constitution-makers that Art. 368 should control and condition rather than be controlled and conditioned by other provisions of the Constitution. Article 368 is the master, not the slave of the other provisions. Acting under Art. 368, Parliament is the creator, not the creature of the Constitution. In one word, it is supreme. A.s Lord Halifax has srud : The \"reverence that is given to a fundamental. ... would be much bette.r applied to that supremacy or power, which is set up 'in every nation in differing shapes, that altereth the Constitution as often as the good of the people requireth it .. .I lay down, then, as a fr'ldamental first, that in every constitution there is some power yvhich neither will nor ought to be bounded.(')\" Jawaharlal Nehru also said: \"(U)l\\imately the whole Constitution is a creature of Parliament.\"(2 )\n\nIt is said that Art. 368 cannot be used to abrogate any basic, fundamental or essential feature of the Constitution or to damage or destroy the core of any fundamental right. But no accurate test for ascertaining a basic. fundamental or essential feature or the. core of-a fundamental right has been suggested by Sri Palkhiwala. An <1fpeal is made to the trained and perceptive judicial mjnd to discover the essential features of the Constitution and their core.\n\nDuring the Stuart period in England the King as well as th~ Parliaerit were both clruming to defend the fundamentals of English pohty. Charles I declared that he had taken up arms only \"to defend the fundamental laws of this Kingdom.\" (1) On the other hand, Parliamentarians maintained that the right of the people was more truly fundamental\n\n(') Gough, Supra, at page 170.\n\n( 2) C.A.D. Vol. IX, p. 1195. (') Gough, supra, p. 78.\n\nKESAVANANOA v. KERALA (Dwivedi, J.) 915\n\nthan anything based merely on tradition or prescription.(') Commenting on the remark of Sir John Finch C. J. (quoted in the opening of this judgment) Maitland said : (W)ho is to decide what is an ornastitution above both king and Parliament, limiting to royal acts a ment and what a substantial part of the crown. The notion of a Conproper sphere, limiting to statutes a proper sphere, was nowhere to\n\nbe found expressed in any accurate terms, and would satisfy neither k'ing nor nation.(')\n\nAt the end of the 17th century Lord Halifax derisively remarked : \"Fundamental is a pedestal that men set everything upon that they would not have broken. It is a nail everbody would use to fix that which is good for them ; for all men would have that principle to be immutable that serves their use at the time.\n\nFundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind .to keep, that nobody else may.touch it.\"(')\n\nThe Constitution-makers who were familiar with the English constitutional history could not conceivably have left undetermined the test of distinguishing the essential features from the non-essential features or their core. The test is writ large in Art. 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Art. 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Art. 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Art. 368. On a parity of reasoning, judicial review of legislation is also amendable. The Constitution creates, enlarges, restricts and excludes judlcial review of legislation. (See Arts. 32(2), 138, 139, 143, 77(2), 166(2) and 31(4), (5) and (6)). Article 32(2) is as amendable as any fundamental right in Part Ill. The word \"guaranteed\" in Art. 32(1) does not testify to its unamendable character. The guarantee is good against the Government organs and not a11; ain<> the Mmtituent pnwer. It mav be recalled that on December 9, 1948, Dr. B. R. Ambcdkar, while speaking on Art. 25 of the Draft Constitution (present Art. 32) said : \"The Constitution has invested\n\n(1) Ibid, p. 99.\n\n( 2) Constitutional History of England, Supra, p. 300.\n\n( 3 ) Gough, supra, pp. 169-170.\n\n'.9 lf> SUPREME COUR'l' RUORTS [1973j Supp. ~.It •\n\n• the Swreme Court with these wms and the5C writs ooulcl not be tllkm away Unless and until the Constitution itself is amended 'by •means 1dt open to the Legislature.\"(') And this he said in spite of his :tion rhat Art. 25 the \"very soul\" and the \"very heart\" of the ConsMll- ~.\n\nArticle 368 places , no express liniits on t'he amending p0wcr.\n\nIndeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Art. 368 and thus make fundamental rights immutable if they to de$ire. it is not permissible to enlarge constructively the limitations on the amending pciWcr.\n\nCourts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words. {A. K. Gdpalan 'V. T'he Unioll uf Inditi<:''; Raja Suriya Pal Singh v. State of U.P.<8) ). In Babu LttJ Pavate versus State of Bombay(') the constitutionality Of du: States Reorganisation Act, 1956 was questioned by this Court. The Act provided for the formation of two separate units out of fue former State of Bombay:\n\n(1) The State of Maharashtra and (2) The State of Gujarat. It also provided for transfer of certain territories from one State to another.\n\nThe Act was passed under Art. 3 of the Constitution. Article 3 , has a proviso to the effect that no Bill under the main part of Art. 3 shal:l he. introduced in either of the Houses unlcS&, where the proposal contained in the Bill affects the area, boundary or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. The Bill carved out three units . out of the State of Bombay, but die Act carved out only two ilnits. It was urged that the word \"State\" in Art. 3 -should be given a. larger connotation so as to mean not merely the State but its people as well •.\n\nThis according to the argument was the \"democratic process\" incorporated in Art. 3. According to this \"democratic process\" the representatives of the people of the State of Bombay assembled. in the State Lcgiilature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subscCifUC11t modification thereof. Rejecting this argument, S. K. Das, J. said : ·\n\n\"(I)t will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe ... It docs not appear to us that\n\n( 1) C.A.D. Vol. VII, p. 953. (') [1950] S.C.R. 88 at p. 120 per Kania C. j. and p •. 220 per Mahajan J.\n\n( 8 ) [1952] S.C.R. 1056 at page -1068 per Mahajan J,\n\n\n• , ..\n\nKl!SAVANANDA ti. KERALA (Dwivedi, J.) 917\n\nany special or recondite doctrine of \"democratic process\" is involved therein.\"\n\nIn the South India Corporation (P) Ltd. v. The Secretary, Board\n\nof Revenue, Trivandrum('), Subba Rao J., while construing Art. 372 observed: ·\n\n\"Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built up on the mpposed political philosophy underlying. the Constitution.\"\n\nCounsel for the petitioners has reiied on Mangal Singh v. Union of lndia('). The Punjab Reorganisation Act, 1966 was naed ith the object of reorganising the State of Punjab. Its const1tut10nality was questioned in this Court. The argument of the respondent that a law made under Arts. 2, 3 and 4 may also make supplemental, incidental and consequential provisions which shall include provisions relating to the set-up of the legislative, executive and judicial organs of the State was countered by the appellant with the. argument that such a wide power Parliament might conceivably exercise to abolish the legislative and judicial organs of the state altogether. Rejecting the counter-argument Shah J. said :\n\n\"We do not think that any such power is contemplated by Art. '4.\n\nPower with which the Parliament 1s invested by Arts. 2 and 3 is power to admit, establish or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, cstablishmel\\t or formation of a State as contemplated by the Constitution and is not power to override the constitutional scheme. No State can therefore be formed, admitted or set up by law under Art. 4 by the Parliament which has no effective legislative, executive and judicial organs.\"\n\nUnder Arts. 2 and 3 Parliament may by law form a new State increase or diminish the area of any State, and alter the boundary o; name of any State. The power is thus exercisable with reference to a State. The observation of Shah J. is to be read in the context of Chapters IJ~ III and IV of Part VI.\n\nChpter II of Part VI provides for the executive structure of a State. Article 155 states that there shall be a 'Governor for each State. Chapter III of Part VI deals with the structme Of the State Legislature. Article 168 provides that for every State\n\n( 1) (1964) 4 S.C.R. 280 at P\"ge 295.\n\n( 1) (1967) 2 S.C.R. 109.\n\n918 SUPREME COURT REPORTS [1973) Supp. S.C.R.\n\nthere shall be a Legislature. The composition of the Legislature, its powers and functions are laid down in this Chapter. Chapter V provides for the structure of the State Judiciary. Article 214 provides that there shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Arts, 2, 3 and 4, cannot make radical changes in the legislative, execu tive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI. 1\n\nSri Palkhiwala has invoked natural law as the higher law conditioning the constituent power in Art. 368. Natural Law has been a sort of religion with many political and constitutional thinkers. Bun it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there : 'State of Nature', 'Nature of Man', 'Reason', 'God', 'Equality', 'Liberty', 'Property', 'Laissez Faire', 'Sovereignty', 'Democracy', 'Civilised Decency', 'Fundamental Conceptions of Justice' and even 'War'(').\n\nThe religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and, Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine conflict.\n\nNatural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark: \"(O)utstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct oppooition t() many positive legal orders. There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to a>eertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgmerits of their various authors about what they consider to be just 01 natural(')\".\n\nArticle 368 shouid be read without any preconceived notions. The framers of the Constitution discarded the concept of \"due process of law\" and adopted the concept iaf \"procedure established by law\" in Art. 21. It is therefore reasonable to believe that they have discarded\n\n( 1) \"In justifying and extolling war as an institutio~ Trcitschke appcale&! \"to the laws of human thought and of human nature\" which forbid anr alternative.\" H. Lautcrpacht : International Law and Human Rights, (1950 Edn.j p. 108.\n\n( 2) What is Justice ? University of California Press, 1960, page 259.\n\n' .\n\nKESAVANANDA v. KERALA (Dwit•edi, J.) 919\n\nthe vague standard of due process of law for testing the legitimacy of a constitutional amendment. Due Process of Law is another name of natural law. The Constitution-makers could have easily imposed any express limitation on the content of the amending power. The absence of any express limitation makes me think that they did not surround the amending power with the amorphic penumbra of any inherent and implied limitations.\n\nJudicial Review of Constitutional amendments\n\nThe history of this Court from Gopalan (Supra) to Golaknatk (Supra) brings out four variant judicial attitudes. In Gopal11n the majority of the Court expressly or tacitly acknowledged \"the 011I1nipo-· tence of the sovereign legislative power.\" The Court displayed humility and self-wtraint. But two years later in 1952 the Court assumed the posture of a sentinel. In the State of Madras v. V. G., Row(') \"' a unanimous Court spoke thus: \"(A)s regards the 'fundamental rights\n\n.... this Court has been assigned the role of a sentinel on the qui vive.\" Whik the Court took care to assure that it has no 'desire to tilt at legislative authority in a crusader's spirit', it added by way of warning that \"it cannot desert its own duty to determine finally the cons- • titutionality of an impugned statute.\" The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinel's role, compounded of self-restraint and 1elf-consciousness.\n\nIn 1954 the Court moved away a step further. In Virendra Singh and others v.\n\nState of Uttar Pradesh(') the Court, making the people its mouth-. piece, asserted : \"(W)e do not found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations.\" Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression.\n\nBy 1967 Gopalan attitude of humilitv and self-restraint had lost its appeal. With the banner of \"natural\", \"sacrosanct\", and \"transcedental\" rights in one hand and 'the flaming sword of (the Constitution's) inspiration' in the other, the Court announced in Golaknath that Parliament cannot take away or abridge the fundamental riR; hts in Part IJI. This is the fourth attitude of the Court towards iudicial review. From Gopalan to G<ilaknath, the Court has shifted from one end to the other end of the diagonal, from Parliament's supremacy to its own supremacy.\n\n( 1) (1952) S.C.R. 597.\n\n( 2 ) [1955] I S.C.R. 415.\n\n920 SUPREME COURT REPORTS (1973) Supp. S.C.ll.\n\nAt the centre of the Court's legal philosophy, there is the rational free-will of the individual. The Court's claitn to the guardiartship over fundamental rights is reminiscent of the Platonic guardians, the philosopher kings who were to rule over the Republic. The Courts's elevation of the fundamental rights recalls Locke, 'whOiSc notion of liberty involves nothing more spiritual than the security of. property and is consistent with slavery and persccutjoo'(').\n\nWn the Court surrounds the fundamental rights with the nimbus of 'sacred' and 'sacrosanct', we are reminded of the theories of Grotius and Pufendorf with their theological strains. When the Court declares that the fundamental rights are 'primordial', 'immutable' and 'inalienable' it is presumably banking on Blackstone with the difference that unlike him it is negating the omnipotence of Parliament, When it is claimed that fundamental rights are accorded a \"transcendental position\" in the Constitution, it is seeking to read Kant's transcendental idealism into the Constitution.\n\n. This philosophy has entailed the subservience of the Directive Principles of State Policy to the fundamental rights. January 26, 1950 became the great divide : on one side of. it were t\\hosc who became endowed with the fundamental rights and enjoyed their blessings; on the other side were those who were formally granted fundamental rights but had no means and capacity to enjoy their blessings. This great divide is to remain for all time to come. But the Constitutionmakers had a contrary intention. Said Jawaharlal Nc'hru : \"These\n\n(the Directive Principles of Sta.tc Policy) arc, as the Constitution says, the fundamentals in the governance of the country. Now, I should like the House to consider how you can give effect to the5e principles if the argument which is often being used .... is adhered to, you can't, You may say you must accept the Supreme Court's interpretation of the Constitution. But, I say, then if that is correct, there is an inherent contr.adiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is upto this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of. State Policy(')\".\n\nArticle 31(4), (5) and (6) establish beyond doubt that the Cqnstitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamentar rights. \"It iis futile ti> cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius\n\n( 1) Acton: The History of Freedom and Power, p. 104. (') Lok Sabha Dcba\"s, 1955-Vol. II, p. 1955.\n\nKESAVANANDA \"· KERALA (Dwivedi, J.) 921\n\nflourished or in the 18th century when Blackstone wrotr.. his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has now unmistakbly shifted from the individual to the community.\n\nWe cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordi_nating the social interest in the rights of the community .... Social mterests are ever expanding and are too numerous to enumerate or even to anticipate and therefore, it is not possible io circumscribe the limits of social control to be exercised by the State ... .If must be left to the State to decide when and how and to what extent it should exercise this social control\" (1).\n\nThe Constitution does not recognise tbe supremacy of this Court over Parliament.\n\nWe may test legislative laws only on the touchstone of authoritative norms established by the Constilhtion. Its procedural I.imitations aside, neither Art. 368 nor any other part of the Constitution has established in 'explicit language any authoritative norms for testing the substance of a constitutional amendment.\n\nI conceive that it not for us to make ultimate value choices for the people. The O:mstitution has not set up a government of judges, in this country. It has confided the duty of determining paramount norms to Parliament alone.\n\nCourts are permitted to make limited value choices within the parameters of the Constitutional value choices. The Court cannot gauge the urgency of an amendment and the danger to the State for want of it, because all evidence cannot come before it. Parliament, on the other hand, is aware of all factors, 10cial, economic, political, financial, national and international pressing for an amendment and is therefore in a better position to decide upon the wisdom and expediency of it.\n\nReason is a fickle guide in the quest for structural socio-political values. In the trilogy II' Sankari Prasad Singh v. Union of India('), Saijan Singh v. State of Rajasthan(') and Golaknath (Supra) the opinion of seven judges prevailed over the opinion of thirteen judges.\n\nThe reason of the author of the Nicomachean Ethics found reason\n\nin slavery. The reason. of the impassioned advocate of. Unlicensed Printing saw reason in denying freedom of speech to the Catholics.\n\nSo Schanupenhaur has said : \"We do not want a thing because we have sound reasons for it; we find a reason for it because we want\n\n(1) State of West BmgaJ •· SuboJn Gopal (1954) S.C.R. 587 at page 655 per Das J.\n\n( 2) [1952] S.C.R. 89.\n\n\n922 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nit\"('). Pure reason is a myth. Structuring reason i's also calculating expediency, computing the plus and minus of clashing values as a particular time, in a particular place and in particular conditions, striking difficult balances.\n\nStructural socio-political value choices imolve a complex and complicated political process. This Court is hardly fitted for perform ing that function. In the absence of any explicit constitutional norms and for want of complete evidence, the Court's structural value choices will be largely subjective. Our personae predilections will unavoidably enter into the scale and give colour to our judgment.\n\nSubjectivism is calculated. to undermine legal certainty, an essential element of the rule of law.\n\nJudicial review of Constitutional amendments will blunt the people's vigilance, art¥:ulateness an.cl effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the people's elected representatives, and not by judicial opinion. The Constitu tion is not intended to be the arena of legal quibbling for men with long purses. It is made for nhc common people. It should generally be so construed that they can understand and appreciate it. The more they understand it, the more they love it and the more they prize it.\n\nI do not believe that unhedged amending power would endanger the interests of the religious, linguistic and cultural minorities in the country. As long as they are prepared to enter into the political process and make combinations and permutations with others, they will not remain permanently and completely ignored or out of power. As an.'instance, while the Hindu Law of Succession has been amended by :, Parliament, no legislature from 1950 to this day has taken courage to amend the Muslim Law of Succession. A minority party has been sharing power in one State for several years.\n\nJudicial review will isolate the minorities from the main stream of the democratic process.\n\nThey will lose the . flexibility to form and re-form alliances with others. Their self-confidence will disappear, and they will become as dependent on the Court's protection as they were once dependent ou ?ie Goerent'~ pro!ection. It seems to me that a two-third majority m Parliament will give them better security than the close vote of this Court on an issue vitally affecting them.\n\nGreat powers may be used for the good as well as to the detriment of the people. An apprehended abuse of power would not be\n\n( 1) As quoted in the Story of Philosophy hy Will Durant at p. 339.\n\nXl!SVANANDA v. KERALA (Dwivedi, J.) 923\n\na legitimate reason for denying unrestricted amending power to Parliament, if the language of Art. 368 so permits without stretch or strain. While construing the Constitution, it should be presumed that power will not be abused. (A. K. Gopalan v. State(') at pages 320.21 per Das J.; Dr. N. B. Khare v. The State of Delhi('); In\n\nRe, Delhi Laws Act(')), There is a general presumption in favour of an honest and reasonable exercise of power. (State of West Bengal '!/.Anwar Ali Sarkar(')). We should have faith in Parliament. It is responsib!C to the people; it cannot ignore any section of them for all time.\n\nRepelling the abust of power argument, Das J. observed :\n\n\"(W)hat, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation? None whateyer. By exercising its power of taxation by law, the State may deprive us of almost sixteen annas in the rupee of our income. What, I ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty. None, except the requirement of article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Art. 22 ...\n\nWhat is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to prjvate property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament ... should act . like. mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even If the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be no justification for. stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be. To do so is not to interpret the Constitution but to . make new Cotitution by unmaking the me which the people of India have gtven '° themselves. That, I apprehend is not the function of the Court.\"(') '\n\n( 1) [1950] S.C.R. 88 at pp. 320·21.\n\n( 2) [1950] S.C.R. 519 at page 526 per Kania C. J.\n\n( 8 ) [1951] S.C.R. 747 at p. 1079 per Das J. (') [1952] S.C.R. 284 at page 301 per Patanjali Sastri J.\n\n(') (1954) S.C.R. 587.\n\n924 SUPll!Ml! COURT IEPOJ.TS ( 1973} Supp, S.C.R.\n\nThe argument of fear therefore is not a valid argument. Parlia mcnt as a legislature is armed with at least two very vast powers in respect of war and currency. Any imprudent exercise of these two powers may blow the whole nation into smithereens in seconds, but no court has so far sought to restrict those powers for apprehended abuse of power. Democracy is founded on the faith in self-criticism and self-correction by the people. There is 'nothing to fear from a critical and cathartic democracy.\n\nThe conllicts of the mediaeval Pope and the Emperor put on the wane their power as well as their moral authority. Conditions.in India today are not propitious for this Court to act as a Hildebrand. Unlike the Pope and the Emperor, the' House of the People, the real repository of power, is chosen by the people. It is responsible to the people and they. have confidence in it.\n\nThe Coµrt is not chosen by the people and is not responsible to them in the sense in which the House of the People is. However, it will win for itself a permanent place in the hearts of the people and thereby augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of protettion of the weaker sections of the people.\n\nIt is really the poor, starved and mindless millions who need the Court's protection for securing to themselves the enj()yment of human rights. In the absence of an explicit mandate, the Court should abstain from striking down a Constitutional amendment wliich makes ail endeavour to 'wipe out every tear from every eye'. In so doing the Court will not be departing from but will be upl\\.olding the national tradition. The Brihadaranyaka Upanishad says : \"Then was born the Law (Dharma), the doer of good. By the law the weak could control the strong.\" (I. IV, 14). Look at the national emblem, the chakra and satyameva jayate.\n\nThe chakra is motion; satyam is sacrifice. The chakra signifies that the Constitution is a becoming, a moving equilibrium; satyam is symbolic of tthe Coastitution's ideal of sacrifice and humanism. The Court will be doing its duty and fulfilling its oath of loyality to the Constitution in the measure judi cial review reflects these twin ideals of the Constitution.\n\nT wentyfourth Amendment\n\nIt consists of two relevant sections, sections 2 and 3. These sections have been drawn in the light of various judgments in Golaknath (supra). Section 2 adds clause (4) to Art. 13. As the majority decision in Golaknath had taken the view that Art. B(2) is a limi tation off the amending power to take away or abridge the funda-\n\nKESAVANANDA 11. 1WALA (Dwiwdi, J.)\n\nmental right3, cl. ( 4) removes that limitation. Section 3 consists of four clauses.\n\nClause (a) substitutes the marginal note to the un amended Art. 368. The substituted marginal note reads as \"Power of Parliament to amend the Constitution and procedure there for\". Clause (b) renumbers the unamended Art. !368 as cl. (2) and adds cl. (I) to it. !he new clause (1) calls the amending power as 'constituent power'. It empowers Parliament to amend 'by way of addition, variation or repeaY any provision of the Constitution in accordance with the prescribed procedure. It opens with the wellknown phrase \"Notwithstanding anything in this Constitution\".. In the renumbered clause (2) also, that is, the unamended Art. 368, there is an amendment. It says that the President 5hall give his assent to the Bill. Clause (d) adds cl. (3) IP Art. 368. It provides that nothing in Art. 13 shall apply to any amendment made under An: 368.\n\nIt may be observed that except as regards the assent of the President to the Bill, everything else.. in the 24th Amendment was already\n\nthere in the unamended Art. 368. I have already held to-that effect earlier in this judgment.\n\nAcco!dingly, the amendment is really declaraoory in nature. It removes doubts cast on the amending power by the majority judgment in Golaknath (supra) I am of opinion that the 24th Amendment is valid. ' The unamended Art. 368 imposed a procedural limit to the amending power. The amending Bill could not become a part of the Constitution until it had received the assent of the President. I have held earlier that the President could withhold his. assent. After the amendment the President cannot withhold assent.\n\nThe procedural restrictions are a part of Art. 368. The unamended article 368 provided for its own amendment. It was accordingly open to Parliament to amend the procedure. So I find no difficulty in upholding the amendment that the President \"shall give his assenn to the Bill\"\n\nOne thing more. Let us assume for the sake of argument that the amending power in the unamended Art. 368 was subject to certain inbent and implied liicil)ations. Let us also assume that it was restricted by the provisions of Art. 13(2). The unamended Art. 368 would impliedly read as \"subject to Art. 13(2) and any inherent and implied limitations.\" So the restrictions imposed by Art. 13(2) and inherent and implied limitacions were a part of the body of Art. 368. As Article 368 is itself liable to amendment these restrictions are now removed by Parliament for they will fall ivithin the ambit of the word \"amendment\". The phrase \"notwithstanding .anything in this ConstitutiGn\" in the newly added cl. (1) of Art. 59-36 S. c. Jndia/73\n\n926 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.\n\n368 is apt to . sweep away all those restrktions. In the result, the amending power is now free of the incubus of Art. 13(2) and in- . hercnt and implied limitations, if any.\n\nIn my opinion, the whole of the 24th amendment is perfectly valid.\n\nSecti<m 2 of the 25th Amendment\n\nction 2 amends Art. 31(2). The unamended Art. 31(2) obligated the State to pay 'compensation' for any property acquired or requisitioned by it. Section 2 substitutes the word 'compensation\" by the words ... an amount\". It also provides that the amount fixed by law or determined in accordance with the principles prescribed by law may be \"given in such a manner as may be specified in such law.\"\n\nThe last part of the main part of the amended Art. 31(2) also states that \"No such law shall be cafied in question in any Court on the ground tha~ the amount so fixed or determined is not adequate or that the whole or any, part of such amount is to be given otherw<se than in cash.\" ·\n\nA pro<Jiso has also been added to Art. 31 (2). Accordlug to the proviso, .while making any law providing for the compulsory acquisitiOn of any property of educational institution, established and administered by a minority referred to in cl. ( 1) of Art. 30, the State shall ensure that the amount fixed by or determined under the law is such as would not restrict or abrogate the rights guaranteed under that clause.\n\nSection 2 adds cl. (2B) to Art. 31. Clause (~B) states that the provisions of Art. 19(1)(f) shall not affect any law referred to in the amended Art. 31 (2).\n\nThe birth of s. 2 is dictated \\ly the history of Art 31(2). Article 24 of the Draft Constitution became Art. 31 (2).\n\nArticle. 24 was moved by Jawaharlal Nehru in the Constituent Assembly on September, 10, 1949. Then he said that compensation, could not be questioned \"except where it is thought that there has been a gross abuse of law,\n\nwhere in fact there has been a fraud on the Constitution(')\". His . construction of Art. 24 received support from Sri Alladi Krishnaswami Ayyar and Sri K. M. Munshi. Sri K: M. Munshi narrated his personal experience. In 1938 Bombay Government acquired the Bardoli\n\n\\ 1).C.A.D. Vol. IX, p. 1193.\n\nltESAVANA!Vl>A' II. K!RALA (Dwivedi, J.) 927\n\nlands. In one case the propmy acquired was worth over rupees five lacs. It was sold during the Non-cooperation Movemenn to an old Diwan of a native State for something like Rs. 6000.\n\nThe income frotn the property. was about Rs. 80,000.00 a year. The Diw~ had received that income for about 10 years. The l!ombay Legislature -acquired the proper!i)' by paying compensation equal to the amount\n\ninvested by the Diwan in the property plus 6%. In direct opposition to the manifest intention of the Constitution-makers, this Court held that, llhe word \"compensation\" in Art 31 (2) means \"full cash equivalent\" (The State of West Bengal v. M111, Bela Banerjee)(').\n\nTo give effect to the intention of the Constitution-makers, Art. 31 (Z) was amended by the 24th ;\\mendment to nhe Constitution in\n\n1955. The 4th Amendment added to Art. 31(2) these words : \"and no such Jaw shall be called in question in any court on the ground that the compensation provided by law i.s not adequate.\" The effect\n\nof the 4th amendment was considered by this Court.in J?. Vajravelu v.\n\nSpecial, Deputy Collector, Madras('). Subba Rao J. said :\n\n\"The fact that Parliament used the same expressions, namely, 'compensation' and 'principles' as were found in Art. 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee's case.\n\nIt follows nhat a Legislature in making a law of acquisition or requlsition shall provide for a just equivalent .of what the owner has . been deprived. of or specify the principles for the purpose of ascertaining the 'just eqttivalent' of what the owner has been deprived of. If Parliament intended to enable a Legislature , to make such a law without providing for compensation so defined, it would have used other expressions like 'price', 'consideration' etc.\"(1).\n\nRegarding the amendment he said :\n\n\"(A) more reasonable interpretation is that neither the principles\n\npring the 'just cquwalent' nor . the 'just equivalent' can be qudtloned. by the Court ?n the groond of the inadequacy of the compensation fixed o~ amved at by working of the principles. !o illustrate, a la~ !s made to aCGjtnre a hoose; its value at the\n\ntime of he acquisition has to be fixed'; there are many modes of valuation, namely, . esmte by an engineer, value reflected by comparable sales, cap1tahsation of rent and similar others. The\n\n( 1) (1954) S.C.R. 558.\n\n( 2) f1965] I S.C.R. 614.\n\n( 1) Ibid. at page 626. .\n\n928 SUPREME COUJ.'1'. REPOITS (1973] Supp. s.c.a.\n\napplicatioo of different principles may lead to \"different resulta, The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But ne the less they are principles on which and the manner in which compensation is determined. The Court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the quescion of adequacy. .On the other hand, if a law lays down principles which are not relevant to the property acquired or .to the value of the property at or about the time it is acquired it may be said that they are not principles contemplated by Art. 31(2)\"(1).\n\nIn Uhion v. Metal Corporati<Jn(') Subba Rao J. spoke again on the implications of the Fourth Amendment. He said :\n\n\"The law to justify itself bas to provide for the payment of a 'just equivalent' to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixacion of compensation and are not arbitrary, the adequacy of the resultant product cannot be questioned in a coilrt of law. The validity of the principles judged by the above tests falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction.\"\n\nThese two decisions neutralised the object of the 4th Amendment. In State of. Gujarat v. Shantt1al Mangaldas(') this Court overruled the Metal Corporation. Shah J. said at page 363 of the Report :\n\n\"Right to compensation in the view of this Coun was. intended by the Constitution to be a right to a just equivalent of the property of. which a person was deprived. But the just equivalent was not capable of precise determination by the application of any recognised principles. The decisions of this Coun in the two cases-Mrs. Bela Banerjee's and Subodh Gopal Bose's case were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles were declared justiciable. By qualifying 'equival~ by the adjective 'just' the\n\nquiry was made mqre -controversial; and apart from the• praotical difficulties .tlze law declared by this Court also placed serious obstacles in giving effect to the t!lrective principles of State policy incorporated in Art; 39.\" (emphasis added).\n\n( 1) [1965] I S.C.R. Supra, at pogc 627.\n\n\nKESAVANANDA V, KERALA (Dwidi, J.) 929\n\nHe added:\n\n\"If the quantum of compensation fixed by the Legislature is: nt liable to be canvassed before the Court on the ground that 1t 1s not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the pica that the compensation determined by the application of those principles is not a just equivalent .... (I)t does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be held by the Courts, for, to do so would be to grant a charter of arbitrariness, and permit a -device to defeat the constitutional guarantee. A challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the constitilltional declaration that adequacy of compensation provided is not justiciable.\"(')\n\nShanti/al Man galdas transfused blood in the 4th .Amendment inade anaemic by Vairavdu and Metal Corporation. But soon there-- after came the majority decision in R. C. Cooper v. Union of India(').\n\nCooper in substance overruled Shanti/al Mangaldas and restored the old position. More, it also added the test of Art. 19(1) (f) to valid acquisition of property. These decisions of the Court constrained Parliament to enact section 2 of :the 25th Amendment.\n\nHaving regard to this history, it will not be proper to import the concept of compensation in Art. 31(2), s. 2 has substituted the word 'compensation' by the word 'amount' at every relevant place in Art. 31 (2). 1'he Oma should not minimize or neutralize its operation by introducing notions taken from or inspired by the old Art. 31(2) which the words of s. 2 are intended to abrogate and do 11bra.. gate.\n\nAccording to Webster's Dictionary on Synonyms (1st Edn. page\n\n47) the word 'amount' means 'sum, total, quantity, number, aggregate, whole'. According to the Shortler- Oxford English Dictionary, the word 'principle' means 'that from which something takes its rise originates or derives'. The word 'adequate', according to the same Dictionary, means 'equal in magnitude or eJ<tent, commensurate in fitness, sufficient, suitable'. According to the Words and Phrases\n\n(Permanent Ed. Vol. II, p. 363) the word \"adequate\" some time means that which is equal to the value; but in its primary and more\n\n(1) [1969] 3 s.c.it pagos 365-366. (') r1970] 3 S.C.R. 530.\n\n930 SUPREME COUB, T l\\EpOllTS [1973) Supp. S.C.R.\n\nproperly significance nothing can be said to be adequate which is not equal to what is required suitable to the case or occasion, wholly sufficient, proportionate and satisfactory.\"\n\nUnlike 'compensation' the word 'amount' is not a term of art.\n\nIt bears no specific legal meaning. The amount fixed by law or de11ermined in accordance with the principles specified by law may be paid partly in cash and partly in kind. In sch a ca•e it may often be difficult to quantify the aggregate value of the cash and the thing gi'ven. Again, the amount may be paid in such a manlier as may be specified in th, law. Thus the law may provide for payment of the amount over a long period of years. Article 19(1)(f) shall now have no impact on Art. 31(2). Having regard to all these circumstances, it is, I think, not permissible to import the notion of reasonableness in Art. 31 (2) as amended by s. 2. The phrase 'principle on which and the manner in which the compensation is to be determined and given' in the old Art. 31 (2) is now substinuted by the phrase 'a.mount which may be determined in accordance with such principles and given in such a manner as may be specified in such law?\n\nAs the word 'compensation' found place in the former phrase, the Court has held that the princiiples should be relevant to 'compensation', that is, to the 'just equivalent' of the property acquired. That phrase is no more there now in Art. 31(2). The notion of 'the relevancy of prinCiples to compensation' is jettisoned by s. 2.\n\nObviously, where the law fixes the amount, it cannot be questioned in any court on the ground that it is not adequate, that is, not equal to the value of the property acquired ar requisitioned. The legislative choice is conclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in courts.\n\nThe newly added proviso to Art. 31 (2) appears to me to fortify this construction. According to the proviso, the law providing for compulsory acquisition of any property of an educational institution whi:ch would receive the protection of cl. ( 1) of Art. 30, • should ensure that th; amount fixed by or determined under it for the acquired property would not restrict or 'abrogate' the right guaranteed under that clause. Now, the objeot of a proviso .is to take oun something which is included in the main part of a provision.\n\nSo the amount payable under the main parq of the amended Art. 31(2) may be such as would 'abrogate' the right of property of all and >Undry. Accordingly it is not permissible to import in the amended Art 31 (2) the notions of 'arbitrary amount' or 'illusory amount' or 'fraudulent amount'. As .some amount must be paid, the law may be virtually confiscatory, but not literally confiscatory. The position now is akin to the legal position in ~. 25 of the Contract Act. Under\n\nKESAVANANDA v. KEllALA (Dwivedi, J.) 931\n\nthat provision the adequacy of consideration negotiated by the contracting parti~ cannot be questioned in court. Most trifling benefit or detriment is sufficient. There is however this difference between\n\nS. 25 and Art. 31(2). While the consideration is settled by the contracting parties, the amount payable for the acquisition or requisitioning of property is settled by the legislature. Like the former, the latter is also not to be questioned in courts.\n\nArticle 31(2) is distinguishable from Arts. 31A, 31B and 31C.\n\nWhile some amount is payable under a law protected by Art. 31(2), no amount whatsoever may be paid under a law protected by Arts. 31A, 31B' and 31C. The former may be virtually confiscatory, the latter may be wholly confiscatory. The amount fixed by law or determined in accordance with the principles in such a law is now not justiciable even though it may seem to be an 'arbitrary amount' or 'illusory amount' or 'fraudulent amount' by the measure of compensation._ The ouster of judicial oversight docs not imply that t~\n\nlegislature would act whimsically. The value of the property acquired or requisitioned, the nature of the property acquired or requisitioned, t!ie circumstances in which the property is being acquired or requisitioned and the object of acquisition or requisition will be the guiding principles for legislative det1ermination of amount. The second principle may involve, inter alia, consi.dcration of the income already received by the owner of the property and the social conttibution, to the value of the property by way of public loans at lower rates of inr.erest, cheap state mpply of energy and raw materials subsidies and various kinds of protection, tax holidays, etc. It should be remembered that the value of a property is the resultant of the owner's indutry and social COilltribution. The owner ought not tll receive any amount for the value contributed by society. He is entitled to payment for his own contribution. The third principle will include the element of social justice.\n\nIt is thus wrong to say that on my interpretation of Art. 31(2) the legislatures will act arbitrarily in determining the amount. The amended Art. 31(2) does not remove the bar of Art. 14.. If the amount paid to the owner of property is in violation of\n\nth~ principles of Art. '14, the law may even now be struck down. Although tlie amended Art. 31(2), according to my construction of it, will abrogate the right of property, it is constitutional as 'it falls within the scope of the 24th Amendment which I have held to be constitutional.\n\nSection 3 of the 25th Amendment\n\nSection 3 adds Art. 31C to Part III of the Constitlltion. It reads : \"Notwithstanding anything contained in Art. 13, no law giving effect\n\n932 SUPJlEME COUJ.T llEPC>aTS [1973] Supp. s.c.a.\n\nto the policy of the State towards securing the principles specified in clause. (b) and ( c) of Art. 39, shall be deemed to be void on the ground that it is inconsistent with or. takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no . law containing a declaration that it is for giving effa.t to such policy shall be called in question in any court on the ground that .it docs not give effec to such policy.\n\n/ Provided that where such law is made by the Legislatur~ of a Stare, the provisions of this articl< shall not apply thereto unless suh law, having been reserved for the consideration of the President, has received his assent.'' ·\n\nSection 3, like section 2, is made under Art. 368 as amended by .the 24th Amendment. The provisions of Art. 31C fall within the\n\nscope of the amended Art. 368, and its validity, too, cannot be assail ed.\n\nIt is pointd out by Sri Palkhiwala that Art. 31C authorises State Legislatures and Parliament as a legislative body to make laws con- travening the rights conferred by arts .. 14, 19 and 31 and that it, in effect, delegates the power of making amendments in those articles.\n\nPointedly, the argument is that che Parliament as the constituent power has delegated the constituent power to the Parliament as a .\n\nlegislative body and the State Legislatures.\n\nIt is al10 stressed that the second part ot s. 3 arms the legi.!latures with the absolute power of sheltering laws .which violate Arts. 14, 19 and 31 and have no relation to the principles speciiicd. in Art. 39(b) and (c). ·\n\nThe second part prohibits any court from inquirying whetl:icr the law protected by Art. 31C has relevancy to Art. 39(b) and (c) if it contains a declaration that i.t gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is not an inno- . vation. You will find several articles havin.g a close rc:scri)blancc to it. Article 77(2) provides that the validity of an order or fustrumci:t~ which is authenticated' as provided therein 'shall not ; be called ill question on the ground that it is not ah order or instruinufmade .or executed by the President'. A similar provisit>Jl is madcf iri , Art.\n\n166(2) in relation to the Governor. Article 103(1) provides that if any question arises to whether a member oi either House of Parliament has become subject to any of the qualifications mentioned in Art. 102(1 ), the question shall be decided by the President \"and 'his decision shall be final.' A similar provision is \"> be .found in Art. 192(1) as regards the members of the State Legislature wjth respect\n\nDS,\\VANAND.\\ ~. U1ALA (Dwil/M, J.) 933\n\nto the decision of the Governor. Article 311(2) gives a right of 1iwing to an employee sought to be dismissed or removed or reduced in rank. Clause (b) of the proviso to ihe article enacts that where the appointing authority' is satisfied that for some reason it is not reason ably practicable to hold such inquiry, the. pre-requisite of hell!\"ing may be dispensed wit; h. Clause (3) of Art. 311 then enacts that if a question arises whether it is reasonably practicble to hold an inquiry, 'the decision thereon of the authority .... shall be final'.\n\nArticle 329(a) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencici Of.. aH0tment of seats to such constituencies made or purporting to be made under Art. 327 or Art. 328 shall not be called in question in any court.\n\nLike these articles, the .second part of s. 3 excludes judicial review to a limited extent.\n\nThe main part of Art. 31C consists of two parts. The first part provides that no law giving ctfect to the policy of the State towards securing the principles specified iii Art. 39(b) and ( c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the righis conferred by Arts. 14, 19 and 31. The first part may be split up into two: (a) giving etfect to the policy of the State towards securing (b) the principles specified in Art. 39(b) and (c). Under the first part the Court has to sec two things before a particular law can receive protection of Art. 31C. Firstly, the law must have relevancy Ill the principles specified in Art. 39(b) and (c); secondly, the law should give ctfect to tho•e principles.\n\nArticle 39(b) provides that the State shall strive to secure that the ownership and control of the material resources of the community arc so distributtd as best to subserve the common good. Article 39(c) urges the State to strive to secure that the operation of the economic 11ystcm does not result in the concentration of wealth and means of .production to the common detriment, It may be observed that 'subserve the common good' in cl. (b) and 'common detriment' in cl. ( c) raise questions of fact!. Now, it is possible to imagine a state of atfairs where a law having relevancy to the principles specified in Art. 39(b) and ( c) may not appear to the Court to subserve the common .good or . to prevent common detriment. Such a law will not prevail over .Arts. 14, 19 and 31. Thus the first part retains the Court's power to decide the legal question of the law's relevancy to the principles specified in Art. 39(b) and ( c) as well as the factual question of the law'~ efficacy to subserve the common good or to prevent common detriment. It can test the ends as well as the mean 'Of the law. s\n\nComing to the second part, it excludes judicial review 'on th ground that (the law) docs not give etfect to such policy'. So th:\n\n934 SUPREME COUllT REPORTS .[1973] Supp. s.c.R.\n\nlaw ctnh<>l be challenged on the ground that the means adopted by the law are not sufficient to subserve. the common good and prevent common detriment. In other woirds, the sufficiency of the law's cflicacr\n\nalone is made non-justiciable. The Court still retlains power to determine whether the law has r.elevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of wealth and means of production. If the Court finds that the law has n<> such relevancy, it will declare the law void if it offends the provisions of Arts. 14, 19 and 31.\n\nThe fate of a provjsion included in a law containing the requisite declaration but having no relevancy as discussed wLll be no better •.\n\nIt will also be void if it offends against Arts. 14, 19 and 31 unless itis subordinate, ancillary or consequential to any provision having such. relevancy or forms an integral part of the scheme of such provision.\n\nDelegation of Amending Power\n\nAs Art. 368(2) as now amended provides that 'only' Parliament mayamend the Constitution by the prescribed procedure, it is said that Parliament may not delegate the constituent power to any extranci>us authority. It is not necessar.y to decide this question. Assuming that Parliament may not delegate the constituent power, the question still remains whether Art. 31C auth<;>rise the State Legislatures and Parliament as a legislative body' to amend any part of the Constitution.\n\nThe power of the Parliament and State Legislatures to make a law with respect to the principles specified in Arts. 39(b) and (c) is derived from Art. 246 read with Lists I, II and III of the Scventb Schedule. Their legislative power is howe\\er not absolute. It is restricted by various fundamental rights including those in Arts. 14, 1!> and 31, for Art. 13(2) e)(prcssly prohibits the legislatures from making a law which will be violative of those rights.\n\nWhat does Art. 31C seek to dol One, the non-obstante clause in.\n\nArt. 31C removes the bar of Art. 13(2) against law making with respect to the principles specified in Art. 39(b) and (c). The bar, howe¥er, is not removed in respect of all the funtlamental rights. It is .removed in respect of the rights in Arts. 14, 19 and 31 only. Second, .Arts. 14, 19• and 31 remain operative as a bar against law-making with respect toall matters other than the principles specified in Art. 39(b) and ( c).\n\nThey are in partial eclipse as regards laws having relevancy to the principles specified in Art. 39(b) and { c). his is the tru~ nature and character of Art. 31C. We should be gmded by what it really\n\nKl!SAVANANllA \"· KEllALA (Dwivedi, J.) 935\n\ndocs and not by how it seems, by its effect and not by its semantic garb. Looked at in this manner, An. 31C is in the nat:uie of a saving clause to Arts. 14, 19 and 31. Instead of being placed at the end of each of these articles, it is placed at one place for the sake of drafting elegance and economy. As a saving clause, Art. 31C saves certain kinds of laws from destruction at the hands of Arts. 14, 19 and 31.\n\nThis effect is brought about directly and immediately by the choice of the constituent power expressed in Art. 31C itself and not by the laws which claim its protection. Those laws do not expressly or impliedLy take away or abridge the rights in Arts. 14, 19 and 31. The consti tucnt power itself has brought about that effect through Art. 31C.\n\nThere is therefore no delegation of the constituent power. In Harishtmft.tll' Bagla v. The StaU of Madhya Pradesh(') this Court has considered the question of. delegation of legislative power. Section 3 of. the Essential Supplies- (T'1llporary Powrn) Act, 1946 enabled the Central Government to make orders for maintaining or increasing supplies of any essential commodity or for securing for their equitable distribution and availability at fair prices and for regulating or prohibiting the production, supply and distribvtion thereof and trade and commerce therein. Section 6 provided that any order made under s, 3: would have effect notwithstanding anything inconsitent therewith contained in any enactment other than the Act or any instrument hav- . lag et by virtue of any enactment other than the Act. It was argued before the High em.rt that s. 6 delegated kgislative power to the Central Government because an order made under s. 3 had the effect of repealing an existing law. The High Court accepted the argument.\n\nBut on appeal. this Court reveed the judgment of the High Court and held_ that s. 6 did not. delegate legislative power. The Court said :\n\n\"The effect of s. 6 certainly is not to repeal any one of t1, ,, e laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 o~ the orders made thereunder. In other words, the orders made under s. 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is rcpugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate.\n\nBy-passing a certain law docs not necessarily amount to repeal or abrogation of that law.\n\nThat law remains unrepealed but during the coptinuance of the order made under s. 3 it docs not operate in that field for the time being. The ambit of its opration is just limited without there being any repeal of any one of its provisions. Conceding, however.\n\n( 1) [1955] I S.C.R. 380.\n\nI'\n\n936 SUPllME COUllT RE!'OllTS [1973) Supp. S.c.it.\n\nfor the sake of argument that to the extent of a repugnancy between an order made under s, 3, and the provisions of an existing law .. the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under section 3 shall have e!Iect notwithstanding any inconsistency in this order with any enactment other than that Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in s. 6. The abrogation or the implied repeal by force of the order made by the delegate under section 3. The power of the delegate is only to make an order under secllil!n 3. Once the delegate has made that order its power is exhaust.td.\n\nSection 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act .... There is no delegation involved in the provisions of section 6 at all ...... \"(')\n\n, . These observations squ:u; cly apply to the provisions of Art. 31C. I accordil\\gly hold that there is no delegation of the constituent power.\n\nSince the laws claiming protection of Art. 31C themselves do not work an amendment in Arts. 14, 19 and 31, it is not necessary that they mould pass through the procedure prescribed in Art. 368.\n\nThe meaning of 'distributed' in Art. 39(b)\n\nSri Palkhiwala has submitted that the nationalisation of property is not contemplated by the word 'distributed' in Art. 39(b). But the 11uestion docs not directly arise at this stage. It will be considered al depth when the constitutionality of various Acts which claim the protection of Art. 31C is examined by this Court. I will accordingly not fipress any final opinion on the meaning of the word 'distributed'. It will be sufficient at rhis stage to refer to certain aspects briefly. The State is the representative and trustee of the people. A nationalised property is vested in the State. Through the Sfate, the entire people collectively may be said to own property. It may be said that in this way the ownership of the nationalised prorerty is distributed amongst the people represented by the State. (See Essays in Fabian Socialism, Constable & Co. Ltd. 1949 .Edn; p. 40; C. E. M. Joad, Introduction to Modern Political Theory, Oxford University Press .• 1959, pp. 49-50; W. A. Robson, Nationalised Industry and Public Ownership, George Allen and Lenwin • Ltd. 1960, pages 461, 462, 476, 477 and 485). ·\n\n\nllSAVANANDA \"· ltEllALA (Dwivedi, J.) 937\n\nThe draft Art. 3l(ii) became Art. 39(b). Prof. K. T. Shah moved an amendment to the draft article to this effect: \"that the ownership, control and management of the natural resources of the country in the shape of mines and minerals, wealth, forests, rivers and Bowing waters as well as in the shape of the SC3S along the coast of the country shall be vested in and belong to the country collectively and shall be CX• ploited and developed on behalf of the community by the State as represented by the Central or Provincial Governments or local governing authority or statutory corporation as may be provided for in eac.h\n\ncase by Act of Parliament.\"(')\n\nReplying to Prof. K. T. Shah. Dr. B. R. Ambcdkar said : \"with regard to his other amendmenl!, viz, substitution of his own clause for\n\nsub-clause (ii) of Art. 31, all I want to say is this that I would have been quite prepared to consider the amendment of Prof. Shah if he had shown that what he intended to do by substitution of his own clause was not possible 1lo be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive language which iftludes. the propositions which have been moved by Prof. Shah, and I aerefore do not see the\n\nneces,!dty.\" (')\n\nIn Dr. Arnbedkar's view the nationalisation of property is inclu. ded in the word 'distnbutcd' in Art. 39(b ).\n\n'19th. Amendment Thil amendment has added to the Ninth Schedule the Kerala Land Reforms (Amendment) Act, 1969 (Kerala .Act 35 of 1969) and the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971). The effect of the inclusion of these Acts in the Ninth Schedule is that the Acis get the protection of Art. 31B. The argument of Sri Palkhiwala is twofold. First Art. 31B is inextricably :dovetailed with Art. 31A and that accordingly any law which is included in the Ninth Schedule should be connected with agrarian reforms whkh is the object of Art. 31A. If a law included in the Ninth Schedule is not related to agrarian reforms, it cannot by-pass Arts. 14, 19 and 31. It is not possible to. accept this argument. In State of Bihar v. Maharajadh.irtrja Sir Kamesh.war Singh(8 ), Pa:111njali Sastri C.J. rejected this limited meaning of Art. 31B. The learned Chief Justice observed :\n\n\"There is nothing in article 31B to indicate that the specific mention of certain stanites was only 'irttcnded til'illustrate tho application of the genetal words of article 31A. The opening words of\n\n( 1) C.A.D. Vol. VII, p. 506.\n\n(') (C.A.D. Vol. VII, p. 518).\n\n( 8) (1952] S.CA 889'\n\ngJg SUPllMJ! COURT P.OPORTS ( 1973} SU1'\\. 9.<:.R.\n\narticle 31B are not only intended to make clear that article 31A should not be restricted in its application by reason of anything contained in Article 31B and arc ill no way calculated to ttstrict the application Of the latter article or of the cr.actmcnts tcfemd to therein to acquisition oi estata.''(1) ·\n\nIn W isheshwar Rll9 v. State of Madhya lradesh.f:}, Mi.btju J. said:\n\n\"ln my .opinion, the observation farfrom sUpportlJig th~ ntcntioo, raised negatives it; Article 31B specillcally validatet c~ Act~ mentioned in the Schedule despite the provis1oliS of' A'.r't. 31A and la not illustrative of article 31A, but stands'i.oilepaden~ cl. itl'\n\n(S~ also N. B. /eajeabhoy v. Assistant COllei:tor, Th11fllj('})\n\nThe next argument is that the two Kcxala Acts which.abrpgatc the funadamental rights of property are void because the amcndinj power\n\nin Art. 368 cannot be used for that purpose. I have already rtjectcd this argument in connection with the 24th and 25th Amcndincnts. Sis nothing more need be said about it. I hold that: the 29th Amc11dment is valid.\n\nLet me summarise the discussion :\n\n(1) The majority decision in Golal{1111th is not correct and should be overruled.\n\n(2) The wm; d 'amendment' in Art. 368 is broad cni>ugh. to autho.\n\nrise the varying, repealing or abrogati11g of each and every provision in the Constitution including Pan ID.\n\n(3) There arc no inherent and implied limitations on the amending power in Art. 368.\n\n(4) The 24th, 25th and 29th Amendments arc valid in their\n\nentirety.\n\n(5) According to Art. 31(2) the amount fixed by law or determined 'in accordance with the principles prescn1>td by sudt law for the acquired or requisitioned property cannot be questioned in any court.\n\n(6) The last part of Art. 31C docs not oust the jurisdiction of courts\n\nto examine whether the impugned law has relevancy to the.\n\n(') Ibid, at pages 914-915. \\ (\") [19521 I S.C.R. 1020 at page 1037.\n\n( 8) [1965] 1 S.c.R. 636 at page 648 per Sub1ltao 1.\n\ndistribution of the owntrship and control of the material resources of the community or to the operation of the economic system and the concentration of wealth and means of production.\n\nThe Constitution Be!!ch will now decide the case according to law.\n\nCHANDRACHUD /.-I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by advcn. titious circumstances. Counsel all round consumed so much time to explain their respective points of view that very little time was left for us to elucidate ours. And the time factor threatened at one stage to assume proportion as grave as the issues arising in the case. The Court, very soon will be poorer by the retirement of the learned Chief Justice and that has set a date-line for the judgment. There has not been enough time, after the conclusion of the arguments, for an exchange of draft judgment amongst us all and I have had the benefit of knO'w\n\ning fully the views of only fuur of us. I deeply regret my inability to share the views of the learned Chief Justice and of Hegde J ., on some of the crucial points involved in the case. The views of Ray J. and Palekar J. arc fairly near my own but I would prefer to state my\n\nreasons a little differently. It is tall to think that after so much ha• been said by so many of us, I could still present a novel point of view but that is not the aim of this judgment. The importance of.the matter under consideration would justify a personal reBcction and it is so much more satisfactory in a matter ridden, albict' wrongly, with political over-tones, to state one's opinion firmly and frankly so that one can stand one's ground without fear or favour.\n\nI do not propose to pin-point every now and then what the various counsel have urged before us, for I apprehend that a faithful rep!'(). duction of all that has been said will add to the length, not ncces.\n\nsarily to the weight, of this judgment. However, lest I may be mis- ; undcrstood, particul:lrly after the earlier reference to the counsel con-\n\n11lllling so much time, let me in fairness say that I acknowledge with gratitude the immense contribution of the learned counsel to the solu. tion of the intricate problems which arise for decision. Such brilliance, industry, scholarship and precision as characterised the arguments of Mr. Palkhivala, the learned Attorney-General, the learned Advocate.\n\nGeneral of Maharashtra and the learned Solicitor-General arc rarely\n\nto be surpassed. What my judgment contains is truly theirs-if this the least be good, the praise be theirs, not mine.\n\nLester Barnhardt Orficld, an extreme exponent of the sovereignty of amending power under Article V of the American Constitution, ha•\n\n940 SUPUMB couu lll'OBTS [1973] Supp. it.c.a.\n\ndescribed that power as 'tui generil. I will borrow that expression to say that the whole matter before us is truly sm generis. The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions contained in Article 368 of our Constitution. We were invited to consider parallel clauses in the Constitutions of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia,\n\nNicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting bµt not proportlioned tKJ their utility, for I believe there is no international yardstick with which to measure the width of an amending power.\n\nW c were then taken .through the writings of scores of. scholars, some of whom have expressed their beliefs with a domatism not open to a Judge. There was a faith cQlltroversy regarding the credentials of sotne of them, but I will mention the more-often quoted amongst them, in order to show what a wide and clashing variety of views was fed to us. They arc : Granville Austiin, James Bryce, Charles Bumdick, John W. Burgess, A. P. Canaway, Dr. D. Conrad, Thomas M. Ch>l.cy, Edward S. Crowin, S. A. DeSmith, de Tocqueville, A. V. Dicey, Herman Finer, W. Friedmann, Carl J. Friedrich, James, W. Garner, Sir Ivor J cnnings, Arthur Berriedale Keith, Leo Kohn, Harold J .. Laski, Bora Laskin, A.H.F. Lefroy, William S. Livingston, William Marbury, C.\n\nM. Mcllwain, Charles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffcr, George Skinner, Joseph Story, . C. F. Strong, Andre Tune, Samuel P. 1Wcaver, K. C. Whearc, E. Willis, Westcl W.\n\nWillou.gby,· Woodrow Willson, W. Anstay Wynes. and Arnold Zurcher.\n\nAt one end is the view propounded by writers like James Garner ('Political Science and Government~) . and William ll. Ml!llro ('The Government of the United States') that an unamendable constimtion ls the worst tyranny of time or rather the very tyranny of tim~ apd; that such a constitution constitutes government by the. graveyard. , AJ. the other end is the view expressed with equal faith and . :vigour bi writers like Dr. Conrad ('Limitation of Amendment Pr\"edures and' the Constituent Power'), . William, Marbury ('The Limitations. ixui, the Amending Power'-Han-ard Law Review, Vol. XXXIIl). and George Skinner ('Intrinsic Limitations on the Power of Constitutio!131 Amendment'-Michigan Law Review, Vol. 18 that any amending\n\nKESAVANANDA v. KERALA (Chandrachud, J.) 941\n\nbody organised within the statutory scheme, however verbali¥ unlimited its power, cannot by its very structure change the fundamental pillers\n\nsupporting its constitutional authority; that the constituent assembly cannot create a second perpetual pouvoir constitueant above the nation; that it may be safely premised that the power to amend the constitu tion cannot includ~ the power to destroy it; that the greatest delusion of the modern political world is the delusion of popular sovereigntya fiction under which all the dictators have sprung up and thrived; and that men should be afraid that any Judge complaint enough to read into a constitution a beneficial power patently not there, might at another time be complient enough to read within it any or all of the guarantees of their liberty for, a Judge willing to take orders from a benevolent despot might be equally subservient to a malevolent one.\n\nSomeone has said in a lighter vein that Law comes from the west and Light from the east, but brushing asid'e such considerations, the conflicting views of these writers, distinguished though they be, cannot conclude the controversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and consideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on 'Government under Law : A Civilian View'.\n\nHe confessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and American life; and that, Frenchmen had by and large rectified to some extent their first impression that it could be extremely dangerous to have a 'Government of Judges', according to the famous slogan. That reminds me of what Sir Ivor Jennings has said in hit book 'Some Characteristics of the Indian Constitution' that \"It is a usefnl principle that one should never trust politicians; but it is equally true that in the context of the future one shQuld never trust constitutional lawyers. On the whole the politician of tomorrow is more likely to be right than the constitutional lawyer of today.\" I will therefore make a spare and studied use of the views of some of these men of earning; But I cannot restrain the reflection, in the strain of Dr. Conrad, that afte-r going through all this erudition, one may well conclude this tour d' horizon with the opening quotation of Walter Bagehot's famous treatise: 'On all gteat subjects, says Mr, Mill, much remains to be said.\"\n\nTheories of political science, sociology, economics and philosophy were copiously quoted before us. Some of these contain a valiant defence of the right of property without which, it is said, all other fundamental freedoms arc as writ in water. Others propound the view that of all fundamental rights, the right to property is the weakest, from which the conclusion is said to follow that iit was an error to include it in\n\n60-36 S. C. lndia/73\n\n942 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\n. t!ie chapter on Fundamental Rights. Our dicision of this vexed ques-\n\n, tmn must depend upon the postulate of our Constitution which aims at bringing about a synthesis between 'Fundamental Rights' and the 'Directive Principles of State Policy', by giving to the former a pride of place and to the latter a plac~ of permanence. Together, not individually, they form the core of the Constitution. Together, not individually, they constitute il$J true conscience.\n\nThe charter of United Nations, the Universal Declaration of Human Rights and the European Convention of 1950 were cited to show the significant change in the world thinking towards the rights of individuals which, by these documents have been accorded recognition on an international plane. Will India, the largest demQCracy in the world, do mere lip service to these. precious freedoms and shall it . not accord to them r rightful place in the lives of men and in the life of the nation 1 Such is the dialectical query. Apart from whether so-called intellectuals-the 'classe non classe' -believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good nf the society.\n\nWe were also invited to have a glimpse of the social and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-\n\n1704), Wolff (1679-1784), Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748-1832) and Hegel (1770.1831). These acknowledged giants of the past-their opinions have a high persuasive value-have (Xp()Ulldcd with care and deliberation the controversial theory of 'Natural Law' and 'Natural Rights'. Each has his own individualistic approach to question but. arising out of their writings is a .far-reaching argument that there arc rights which inhere in every man as a rational and moral being; that these rights arc inalienable and inviDlable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The an&Wer\n\n11:> this contention would consist in the inquiry,. fintly as regards the validity of the core and hence the consequences of natural law thinking; and secondly, on whether our organic document supports the inference that natural rights were either recognised by it-explicitly or implicitlyand if so, w hethcr any of such rights were permitted to be reserved by the people without any qualification, so that an individual would be entitled to protect and nurse a minimal core of such rights, uninfluenced by social considerations.\n\nThe debates of the Constituent Assembly and of the first Provisional Parliament on which none declined to rely furnished a lively experience. The speeches of Pandit Jawah:irlal Nehru, Sardar Vallabhbhai Patel, Dr~ Rajendra Prasad, Dr. S. Radhakrishnan, Dr. Ambedkar,\n\n:U:SAVANANDA v. KERALA ( Chandrachud, J .) 943\n\nGovind Ballabh Pant, Dr. K. M. Munsi, Alladi Krishnaswamy Ayyar, Dr. Shyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome D'Souza, K. Santhanam, Dr. Punjabrao Deshmukh, H. V. Karnath and others were read out to us in support of the rival stands mainly touching the question of 'inalienability' of fundamental rights and what in those days was freely referred to as the power of 'Eminent Domain'.\n\nSome of the speakers were . acknowledged national leaders of high stature, some were lawyers of eminence and some had attained distinction m the undefined field of politics and sociaL reform. Their speeches are inspiring and reflect the temper of the times but we cannot pass on the amplitude of the power of amendment of the Constitution by considering what amendments were moved to the corresponding Article 13 of the Constitution and why those proposals for amendment were dropped or not pursued. Similarly; the fact that the First Amendment to the Constitution was passed in 1951 by members of the Constituent Assembly sitting as the Provisional Parliament cannot relieve us of the task of judicially interpreting the validity of the contention that the Fundamental Rights cannot be abridged or taken away or that the core of the essential features of the Constitution cannot be damaged or destroyed. Jawaharlal Nehru undoubtedly said in the Constituent Assembly that \"Hundreds of millions. of our own people look to us and hundreds of millions of others also looki to us; and remember this, that while we want this Constitution to be as solid and as permanent a structure as we can make it nevertheless there is no permanence in Constitution. There should be a certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of a living vital organic people,\"; and again in the Provisional Parliament that \"A Comtitution which is unchanging and static, it dos not matter how good it is, how perfect it is, is a Constitution that has past it1 use. It is in its old age already and gradually approachffig its death.\n\nA Comtitution to be living must be growing; must be adaptable; must be flexible; must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, i.t is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, con.s.titutloinally. Sometimes they went through the process of fire and revolution\". But he also said when the Constitution (First Amendment) Bill, 1951, was on the anvil that \"-so far as this House is concerned, it can proceed in the manner provided by t11c Constitution to atJlend\n\nit, if this House so choose.\n\n\"Now there is no doubt that this House has that authority. There is no doubt about that, and here, I am talking not of the legal or constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution.\" Our task is not to\n\n944 SUPREME COURT REPOll.TS (1973] Supp. S.C.11..\n\npass on the ''moral authority\" of the Parliament to amend the Constition but to determine whether it has \"legal or constitutional authority\"\n\nto do so. Applying the same test, the speech which the other of the two chief architects of the Constitution-Dr. Ambedkar-made in the Constituent Assembly can raise no estoppel and decide no Constitutional issue. He said : ''Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by, Parliament by a bare majority. The second set of articles are articles which require tw<>-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in part III or article 304, (corresponding to, present article 368), all that -is necessary for them is to have tw<>-thirds majority. Then they can amend it.\" Perhaps, there is a slip in the reference to Part III''-even Homer nods. Perhaps, there is an error on the part of the typist-they often nod. But even granting that the eminent cannot ever err, what was\n\nsaid by Dr. Ambedkar and others in the Constituent Assembly and the Parliament was at best their opinion of law. The true legal position is for us and none el5e to decide, though within the limits set by the Constitution.\n\nDuring the course of arguments, a catena of decisions d several courts were cited before us. I thought when the arguments beganyea, I remember it because the commencement of the case is not that lOSll in antiquity-that the judgments of this Court will form the focus of discussion, foreign decisions making a brief appearance. But\n\nretrospect, I think I was wrong. Learning, like language, is no one's monopoly and coun.s, el were entitled to invite us to consider how heroically courts -all over the world had waged battles in defence cf fundamental freedoms and on the other hand how, on \":casions, the letter of law was permitted to prevail in disregard of evil consequences.\n\nBetween such extremes, the choice is always diflicult and delicate but it has to be made for, in a matter involving the cherished freedoms' of the subject and the powers of the Parliament, I do not want to project my freedom to say, as Justice McReynolds of tlie American Supreme Court didin the National Prohibition Cases involving the validity of the Eighteenth Amendment to the American Constitution, that I am unable to come to any conclusion. But I am quite clear that I have no use for the advice of Walter Berns ('Freedom, Virtue & The First Amendment' 1957), that since there can be no freedom to end freedom even if the people desire to enslave thcmsclvs, \"the Suprme Court must act undemocratically in order to preserve dcm<>- cracy\". Nor indeed shall I walk down the garden-path laid by Dale, Gibson ('Constitution Amendment and the implied Bill of Rights', McGill Law Journal, Volume 12), that \"where an issue as vital as\n\nKESAVANANDA \"· KEllALA ( Chandrachud, J.) 945\n\nthe protection of civil liberties .is concerned, ; ind where the legislators have demonstrated their inability to provide adequate safeguards, the courts arc entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to prescrvc:individual rights\". Such exhortations have a spartan air which lcnd1 colourfulness to arid texts but they overlook the fundamental premise. that judges, unlike Manu, arc not law-givers. Besides, it cannot ever be .too strongly stressed that the power of substantive 'Jue process of law' available under the Fourteenth Amendment to the American Constitution was considered and rejected by our Constituent Assemoly which contained a galaxy of lewil talent. In America, under the due process clause, there was a time when the Supreme Court used to invalidate laws because they were thought to be unwise or incompatible with some particular economic or social philosophy. Thus, in Lochner v. New York,(') the law restricting em ployment in baker to 10 hours per day and 60 hours per week wa& regarded as an unconstitutional interference with the right of adult labourers, sui iuris, to contract with respect to their means of livcli hood. It was decades later that the Court recognised the value and the validity of the dissenting opinion recorded by Justice Holmes :\n\n\"This case is decided upon an economic theory which a large part of the country docs not entertain. If it were a question whether agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that fo be\n\nmy duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrarucal as this, and which equally with this interfere with the liberty to contract.• • • The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Static!. • • • But a Constitution ....... is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon . the question whether statutes embodying them conflict with the Constitution.\"\n\nIn course of time such shining dissents became the majority view and the due process clause came to be construed as permitting enactment of laws limiting the hours of labour in mines, prohibiting employment of children in hazardous occupations, regulating payment of wages, preserving minimum wages for women and children, the 'Blue\n\n( 1) 49 L. ed. 937.\n\n946 SUPRIME COUllT RE POil TS ( 1973] Supp. S.C.ll.\n\nky Jaws' and the 'Man's Best Friend (Dog) laws'. Even laws like the Kentuk/y Statutes requiring Banks to turn over to the protective custody of that State deposits that were inactive for 10 or 25 years were upheld, as not involving taking over the property of the banks('). With this American history before them, the Drafting Committee of the Constituent Assembly chose in Article 21 of our Constitution a phrase of certain import, 'procedure established by law' in place of the vague and uncertain expression 'due process of law'.\n\nWe were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, .the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Federal Court and the High Courts. Why, consistently with American practice, we were even referred to briefs which counsd had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, judgment which though reversed in appeal by the Supreme Court, was thought to have a cenain relevanc~.\n\nWe began, speaking chronologically, with the decision rendered in 1803 by the American Supreme Court in William Marbury s. James\n\nMadison(') in which the opinion of the Court was delivered by Chief Justice John Marshall in wards whose significance custom has still not staled: \"Certainly all those who have fr.amed written constitutions con: template them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution is void.\"\n\nWe ended with some of the very recent decisions of this Court like the Bank Nationalisation Case(') in which a Bench of 11 Judges held by a majority of 10 to 1 that the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 violated the guarantee of compensation under Article 31(2) in that, it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed, the amounts so declared could not be regarded as compensation. In between come seeral ~cisios, prominent amongst which are: (1) The Pnvy Council decmon m\n\n( 1) Anderson National Bank os. Luckett 321 U.S. 233,\n\n(2) 2 L. ed. 69.\n\n\n:USAVANANDA f/, DRALA ( Chandrachud, J.) 947\n\nBurah's case (1878, Attorney-General of Ontario case (1911), Vacher & Son's case (1912), McCawley's case (1919), In Re the Initiative and Referendum Act case (1919), Trethowan's case (1932), Moore's case (1935), Ibralabee's case (1964), Ranasinghe's case (1965), Don John Liyanagc's case <1965) and Kariapper's case (1967); (2) The decisions of the Federal Court in the C. P. & Berar Reference (1938), Subramaniam Chettiyar's case (1940) and Suraj Narain Ai:iand's case (1941); (3) The decisions of the American Supreme Court in Lochner's case (1904), Hawke vs. Smith (1920), the Rhode Island Case (1920), Dillon vs. loss (1920), Lesser vs. Garnett (1922), Ex parte Grossman (1925), Sprague's case (1931); Schneiderman's case\n\n(1943) and Skrupa's case (1963); (4) The decisions of the American State Supreme Courts in Livermore vs. Waite (1894), Edwards .vs. Lesseur (1896), Ex parte Dillon (1920) and Geigenspan vs. Boding (1920); (5) The decision of the Irish Supreme Court in Ryan's case ( 1935); ( 6) The decisions of the Appellate Division of the Supreme Court of South Africa in Hartis' case (1952) and in the 'High Court of Parliament Case' (1952); (7) The desicions of the Canadian Supreme Court .in the Alberta Press Case (1938), the case of Attorney-\n\nGeneral of Nova Scotia (1950), Samur's case (1953) and Switzman's case (1957); and (8) The decisions of the Hight Court of Australia in Eug; neer's case (1920), West vs. Commonwealth of Australia in (1937), South Australia vs. Commonwealth (1942) and State of Victoria vs. Commonwealth (1970).\n\nMost of the decisions of the Privy Council noticed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our constitutional provisions which require interpretation. They will help a clearer perception of the distinction between 'controlled' and 'uncontrolled' constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of constituent power and those made in the exerdse of ordinary legislative power conferred by the constitution. In this distinction would seem to lie an answer to some of the basic contentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution.\n\nThe decisions of American courts may bear examination, but in their application to the probkms arising under our constitution it would be necessary to keep in constant sight some of the crucial differences between the circumstances attendant .on the birth of the two constitutfons, the purposed vagueness of theirs and the finical content of ours and the significant disparity in the structure of their Article 5 and our Article 368. In America, an. important principle of constitutional liberty is that the sovereignty resides in the peop!e and as they could not in their collective character exercise governmental\n\n9 48 SUPRl!MI! COUllT REPORTS [1973] Supp. s.c.P..\n\npowers, a written document wa's by common consensus agreed upon in each of the States. The American constitution, thus, is covenant of the sovereign people with tile individuals who compose the nation. Then, the Supreme Court of America, as said by Sir Henry Main, is not only a most interesting but a unique creation of the fathers of the c01J1stitution. \"The success of the experiment has blinded men to its novelty. There is no exact. precedent for it, either in the ancient or modern world.\" In fact, it is said that the history of the United States has been written not meerly in the halls 0£ Congress or on the fields of battle but to a great extent in the Chambers of the Supreme Court. The peculiar role played by that court in the development of the nation is rooted, apart from the implications arising out of the due process clause, in the use of a few skeleton phtases. in the Constitution. We have drawn our constitution differently. It is, however, relevant that American courts were time and again asked to pass on the existence of inherent limitations on the amending power aqd their attitude to that question requires examination of the claim of writers like Edward Corwin that such arguments were brushed aside by the court as unworthy of serious attention. Another aspect of American decisions which has relevance in this matter is the explication of the concept of amendment in cases like Livermore's (California, 1894), McCleary's (Indiana, 1917) and Ex Parte Dillon's (California, 1920).\n\nDecisions of the Australian High Court like th.e Engineers' case, the State of Victoria case and ihe Melbourne Corporation case bear on the central them~ of the petitioner's argument that the Parliament which is a creature of the constitution cannot in exercise of its powers act in derogation of the implications to be derived, say, from the federal nature of the constitution. That is, some implications must arise from the structure of the constitution itself.\n\nThe two decisions of the South African Supreme Court (Harris' case and the High Court of Parliament case) may serve to throw some light on the concept that the sovereignty of a legislature is not incompatible with its obligation to comply with the requirements of form and inanner prescribed by the instrument which regulates its power to make law, for a legislature has no power to ignore the conditions of law-making.\n\nThe Canadian cases really bear on the legislative c<;>mpetence of provincial legislatures in regard to individual . freeoms or _in regard to criminal matters. Jn Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, none has pronounced finallv in favour of any particular view.\n\nKESAVANANDA v. KERALA (Chandra;:hud, J.) 949\n\nA special word must be said of Ryan's case which was decided by the Irish Supreme Court. It was read out in extento to us and I am free to confess that it evoked in me a quick response. In that case, the three Judges of the Irish High Court and two of the 3 Judges of their Supreme Court rejected contentions similar to thc of the petitioner herein but Chief Justice Kennedy, though he did not deal directly with the meaning of the word 'amendment', read limitations on tl1c meaning of that word as a result of various implications derived from the Irish constitution. Petitioner relies on the lone voice of the Chief Justice. That it is lone is immaterial for our plll'pQSC for, after all, the decision has but a pesuasive value. Respondents not only distinguished the judgment of the learned Chief Justice but contended that the ratio of the decision is clearly in their favour. Ryan's case became for both sides an 'Iri<h Golak Nath'.\n\nI have made this compact ummary of the decisions to indicate, in . the first place, that these perhaps are the only decisions whicli require close consideration out of the vast multitude of those that were canvassed before us and secondly, to show the broad trend of judicial thinking on the points pressed upon. us. It is impossible, in what I consider to be the true scope of this judgment and unnecessary for what I feel is its real purpose, to deal at length with everyone of these decisions. That task, I think, may well be left to receive a scholarly treatment at the hands oE a constitutional writer. As Judges, we are confronted and therefore concerned with practical problems and it is well to remind ourselves that ow principal task is to construe the Constitution and not to construe judgments. Those judgments arc without doubt, like lamp-posts on the road to freedom and judges wl10 have shed on that road the light of their learning and the impress of their indepedence, have carved for themselves a niche in the history of civil liberties. Sec what Frankfurter J. said in Joint Anti-Fatcist Ref. Comm. v. McGraths(') \"Man being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights\"; or, what Jackson J. said in 4merican Comm. Assoc. v. Doudds(') \"Our protection against all kinds of fanatics and extremistes, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution\"; or, what Patterson J, said in his famous cliarge to the Jury in Van Horne's lessee v.\n\nDorrance('): \"The Constitution ... is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events .... One encroachment leads to another; precedent gives birth to precedent; what has been done may be done again; thus\n\n( 1) 341, U.S. 123, 171. (') 339, us. 382, 439.\n\n( 1) I L. ed. 391.\n\n950 SUPREME COURT REPORTS (1973) Supp. S.C.R.\n\nradical principles are generally broken in upon, and the constitution eventually destroyed.'' These arc sonorous words and they will resound through the corridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-halfclad, half-starved, half-educated. These hopes and aspirations represent ing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court nor constitution will save the country. In those momems of peril and disaster, rights and wrongs are decided not before the blind eyes of justice, not under the watchful eyes of the Speaker with a Marshal standing by but, alas,. on streets and in by-lanes, Let us, therefore, give to the Parliament the freedom, within the framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is necessary, towards that end, that the Constitution should not be construed in a \"narrow and pedantic sense(')\" Rules of interpretation which govern other statutes. . also govern a constitutional enactment but those \"very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting,- to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere 1 Act which declares what the law is to be.(')\" To put it in the langua~ of Sir Maurice Gwyer C. J., \"a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they arc free to stretch or pervert the language of the enact• ment in the interests of any legal or constitutional theory, or even. for the purpose of supplying omissions or of correcting supposed\n\nerrors. A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it mayrightly reflect that a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed\n\nut res magis val.eat quam pereat.(8)\" In the exercise of our powers of judicial review, let us therefore not act as a check of the past on the present and the future~ \" .... it is the present that. represents the will of the people and it is that will that must ulimately be given effect in a democracy(')\" The core of social commitment is the quintessence of our C'..onstitution and we must approach it in the spirit in\n\n(') Per Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614.\n\n(') Per Higgins J. in Att.-Ocnl. for New South Wales v. Brewery Employees Union, (1908) 6 Commonwealth L.R. 469, 611-12.\n\n(') In re. The Central Provinces and Berar Act No. XIV of 1939. (1938)1 F.C.R. p. 18, 37.\n\n(') Schwartz : A Basic History of the U.S. Supreme Court.\n\n' r\n\nUSAVANANDA v. Kl!RALA ( Chandrachud, J.) 951\n\nwhich it was conceived. We erected the edifice of our Constitution in the hope that it will last, unlike the French who, on the establishment of the Third Republic in 1875, framed a constitution in the hope that it will fail, since the majority of the constitution-makers were not .Republicans but Royalists: In the peculiar conditions in which the French Republic found itself, there was only one throne but three claimanu for a scat on it. The social philosophy of our Constitution defines expressly the condition; under which liberty has to be enjoyed and justice is to be administered in our country; and shall I say of our country what Justice Fitzgibbon said of his in Ryan's case : \"this other Ederi demi-Paradise, this precious stone, set in the silver sea, thi.s blessed plot, this earth, this, realm, this\" India. If it is not that to-day, let us strive to make it so by using law as a flexible instrument. of social order. Law is not, in the phrase of Justice Holmes, a \"brooding Ollllllipotence in the sky.\"\n\nAll through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were not cited. Sec this long list: The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Shorter Oxfocd English Dictionary; Websticr's Third New International Dictionary of the English Language; Webster's English Dictionary, 1952; The Random House Dictionary of the English Language; The Reader's Digest Great EncyclDpacdic Dictionary; The Dictionary of English Law, Eal Jowitt; The Cyclopaedic Law Dictionary by Frank D. Moore; Prcm's Judicial Dictionary-Words & Phrases judicially defined in India England, U.S.A. & Australia; Bouvier's Law Dictionary; Universal English Dictionary; Chamber's 20th Century Dictionary; Imperial Dictionary by Ogilvie; Standard Dictionary by Funk & Wagnalls; Stroud's Judicial Dictionary; Judicial and Statutory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton's Law Lexicon; Vcnkataramaiya's Law Lexicon; Law Lexicon of British Indiacompiled and edited by P. Ramanatha Aiyer; Words and Phrases, Permanent Edition; The Construction of Statutes by Earl T. Crawford; Corpus Juris Secundum and American Jurisprudence. These citations were made in order to explain the meaning, mainly, of the words 'Amendment', 'Constituent', 'Constitution', 'Constitutional law', 'Distribute' and 'law'. This is of course in addition to several decis!ons which have dealt with these words and phrases in some context or the other. It is useful to have a dictionary by one's side and experience has it that a timely reference to a dictionary helps avert many an embarrassing situation by correcting one's inveterate misconception of the meaning of some words. But I do not think that mere dictionaries will help one understand the .true meaning and scope of words like 'amendment' in Article 368 or 'law' in Article 13(2). These arc not words occurring in a school text-book so that one can find their\n\n952 SUPREME COUllT J!EPOl\\TS [1973] Supp. s.c.:a.\n\nmeaning with a dictionary on one's right and a book of grammar on one's lt. These are words occurring in a Constitution and one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in \"a single complex instrument, in which one part may thro~ light on another\", so that \"the construction must hold a balance between all its parts(').\n\nSuch words, having so significant an impact on a power as important as the power to amend the Constitution cannot be read in vacuo. The implication of the social philosophy of the instrument in which they occur and the general scheme of that instrument under which the very object of the conferment of freedoms entrenched in Part III is the attainment of ideals set out in Part IV, must play an important role in the construction af such words. \"A word. is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used{\")\".\n\n'Sui generil, I called this case. I hope I have not exaggerated its uniqueness. It 'is manifest that the case has a peculiar delicacy. And now through the cobwebs of 71 Constitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may.\n\nThe main argument was made in Writ Petition No. 135 of 1970.\n\nThe Kerala Land Reforms Amendment Act (35 of 1969) came into force in the State of Kcrala on January 1. 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into orce on August 7,\n\n1971. The High Court' of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. vs. The State of Kerala and Another(').\n\nWrit Petition No. 135 of 1970 was filed in this Court under Article 32 of the Constitution on March 21, 1970. During the pendency of this Petition, the Constitution; 24th 25'th, 26th. and 29th Amendment Acts were passed by the Amending body, that is, the Parliament. The 24th Amendment Act received the President's assent on November 5, 1971. In a House of 518 members af the Lok Sabha, 384 members voted in favour of the 24th Amendment and 23 against .it. In a House of 243 members of the Rajya Sabha, 177 members voted' in favour 'and 8 against it. As regards 25th Amendment, 355 voted in favour and 20\n\n(') Per Lord Wright in James v1. Commonwealth of Australia (1936) A.C. 578, 613. (') Per Holmes J. in Towne v1. Eisner 62 L. ed. 372, 376. (') [1972] 2 s.c.c. 364.\n\nKESAVANANDA v. KERALA (Chandrachud, J.) 953\n\nagaimt it in the Lok Sabha; while in the Rajya Sabha, 166 voted in favour and 20 against it. The voting on the 29th Amendment in the Lok Sabha was 286 in favour and 4 against. In the Rajya Sabha, 170 voted in favour and none against it.\n\nIn August, 1972, the Petitioner was permitted by an ameudment to challenge the validity of the 24th, 25th and 29th Amendments to the Constitution. These Amendments, after receiving the President's assent, came into force on November 5; 1971, April, 20, 1972 and June 9, 1972.\n\nThe Constitution (Twenty-Fourth Amendment) Act, 1971 has by Section 2 thereof added a new clause (4) to Article 13 of the Consti-·\n\ntution providing that nothing in that article \"shall apply to any amendment of this Constitution made under Article 368\". Section 3(a)\n\nof the Amending Act substitutes a new marginal heading to Article 368 in place of the old. The marginal heading of the unamended article 368 was : \"Procedure for amendment of the Constitution.'' The new heading is: \"Power of Parliament to amend the Constitution anrl'\n\nprocedure therefor.\" Section 3(b) of the Amending Act inserts a new sub-section (1) in Article 368: \"Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.'' Section 3(c) makes it obligatory for the President to give his assent to the Amendment Bill. Section 3(d) adds a rrew clause (3) to article 368 stating that \"Nothing in article 13 shall apply to any amendment\n\nThe Constitution (Twenty-Fifth Amendment) Act, 1971 brings about significant changes in article 31 and introduces a new article 31C.\n\nBy Section 2(a) of the Amendment Act, 1971, clause (2) of Article 31 is substituted by a new clause which permits compulsory acquisition or requisitioning of the property for a public purpose by authority of law, which provids for acquisition or requisitioning of the property \"for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may he specified in such\n\nlaw.\" No such law can he called in question on the ground that the amount is not adequate or that the whole or any part of it is to he given otherwise than in cash. The newly added proviso to article 31 (2) makes an exception in regard to properties of educational ins ti-· tutions of minorities. If such properties are compulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would not restrict or abrogate the right auaranteed under article\n\n954 SUPREME COUll.T REPORTS [ 1973] Supp. s.c.R.\n\n30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new clause 2(b) to artjcle 31 which provides that nothing in ' article 19(1)(f) shall affect any such law as is referred to in article \\ 31 (2) as substituted. Section .3 of the Amendment Act, 1971, introduces a new article 31C, which provides that notwithstanding anything contained in article 79, no law giving effect to the policy of the State towards securing the pdnciples mentioned in artide 39(b) 01\n\n(c) shall be deemed to be void on the ground that it takes away or abridges the rights conferred by articles 14, 19 and 31. No law containing a declaration that it is for giving effect to such policy can be called in question in any court on the ground hat it does not give effect to such policy. If such a law is made by the Legislature of a State, the provisions of article 31C can apply only if the law rceived the assent of the President.\n\nBy the Constitution (Twenty-Ninth Amendment) Act, 1972, the two Kerala Acts - Act 35 of 1%9 and Act 25 of 1971 - were included in the Ninth Schedule thereby giving them the protection of article 31R By such inclusion, the challenge made by the petitioner to these two Acts by his Writ Petition filed in March, 1970 became infrm; tuous depending upon the validity of the 29th Amendment Act.\n\nShorn of refinements, the main questions which arise for decision are: (1) What is the trne ratio and effect of the decision in the Golak Nath case? (2) Should that ratio be upheld?\n\n(3) If the majority decision in the Golak Nath case be incorrect, what is the extent ot the inherent or implied limjtations, if any, on the power of the Parliament to amend the Constitution by virtue of its power under Article 368? and ( 4) Are the 24th, 25th and 29th Constitution Amendment Acts valid?\n\nThe Constitution of India came into force on January 26, 1950 and on June 18, 1951 the Constitution (First Amendment) Act, 1951 was passed by the Parliament. Sectio.ns 2, 3, 4 and 5 of the Amending\n\nAct made significant amendments resulting to a large extent in the abridgement of Fundamental Righrs conferred by Part III of the Constitution. By Sectron 4, a new Article 31A was inserted and by section 5 was inserted Article 31B for the validation of certain Acts and Regulations. These Acts and Regulations were enumerated in the Ninth Schedule to the Constitution, which itself was added by section 14 of the Amendment Act.\n\nThe validity of the Amendment Act, 1951 was challenged in this Court in Sri Shankar Prasad Singh Deo vs. Union of India and State of Bihar('). It was urged in that caiC that the Amendment. Act in\n\n( 1 ) (1952) I S.C.R. 89.\n\nKESAVANANDA v. KERALA ( Chandrachud, J.) 955\n\nso far as it purported to take away ar abridge the rights conferred by Part III felt within the prohibition of Article 13(2) and was therefore unconstitutional. Patanjali Sastri J. who spoke for the unanimous court rejected this argument by holding that although 'law' would ordinarily include constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in exercise of constituent power; and therefore, in the absence of a clear indication to the contrary, Fundamental Rights were not immune from constitutional amendment. The challenge to the Amendment Act, 1951 was on these grounds rejected.\n\nThe Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that no law to which article 31 (2) was applicable shall be called in question in any court on the ground that the compensation provided by that law was not adequate. By section 3 of the Amending Act a new and extensive clause (1) was substituted for the old dame (1) of article 31A, with retrospective effect. The newly added provision opens with a non-obstante clause : \"Notwithstanding anything contained in article 13\" and privides that no law providing for matters mentioned in new clauses (a) to (s) article 31A(l), shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31. No challenge was ever made to these amendments.\n\nThe Constitution (Seventeenth Amendment) Act, 1964 came into force on June 20, 1964. This Act, by section 2(ii) inserted a new definition of \"estate\" in article 31A(2) (a) with retrospective effect and added as many as 44 Acts in the Ninth Schedule, thus extending the protection of the Schedule to 64 Acts in all.\n\nThe validity of the Seventeenth Amendment Act was challenged before this Court in Saiian Singh v. State of Rajasthan('). Out of the the several arguments which were urged in that case the only one which is relevant for the present purpose is that the Amendment Act was void in view of the provisions of Article 13(2), in so far as the Act purported to abridge the Fundamental Rights guaranteed by Part III. Delivering the majority judgment, Gajendragadkar C. J. took the view on behalf of himself, Wanchoo and Raghubar Dayal JJ. that the expression 'amendment of the Constitution' plainly and unambiguously means amendment of all the pro\\lisions of the Constituion and therefore the amending power conferred by Article 368 extended to all the provisions of the Constitution •. The majority judgment rejected .\n\n( 1) [1965] l S.C.R. 933.\n\n956 SVPIEME COVRT REPORTS [1973] Supp. s.c.R.\n\nthe contention that the word 'law' in Article 13(2) would take in Constitution Amendment Acts passed under Article 368, as there was a clear distinction between the constituent power conferred by Article 368 and the ordinary legislative power and Article 13(2) would takr in laws made in the exercise of the latter power only. Hidayatullah J. and Mudholkar J. concurred in the final conclusion but by separate judgments they doubted the majority view and observed that it was possible that Article 368 merely laid down the procedure for amending the Constitution but did not confer the power to amend the Constitution. Both the learned Judges however stated expressely that they should not be taken to have expressed a final opinion on that question. The seeds of the controversial decision in I. C. Golak Nath & Others v. State of Punjab & Another(') were sown by the doubt thus expressed by Hidayatullah J. and Mudholkar J.\n\nThe decision in the Golak Nath case was rendered by a Bench of II Judges of this Court on February 27, 1967. The petitioners therein had challenged the validity of Punjab Act 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the ground that these Acts violated their Fundamental Rights, alleging rhat though the impugned acts were included in the Ninth Schedule, they did not receive the protection of the 1st, 4th and 17th Amendment Acts. It was common case that if the 17th Amendment which included the impugned Acts in the Ninth Schedule was valid, the Acts would not be open to challenge on any ground.\n\nChief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam.\n\nHidayatullah J. concurred with their conclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and1 Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami concurred by their separate judgments with the view expressed in the leading minority judgment.\n\nThe leading majority judgment recorded the following conclusions:\n\nI. That Fundamental Rights are the primordial rights necessary for the development of human personal; ty and as such they are rights of the people preserved by the Constitution.\n\n2. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the Constitution. the people have reserved the fundamental\n\n\nXESAVANANDA v. KERALA ( Chandrachud, J.) 957\n\nfreedoms t0 themselves. The incapacity of the Parliament, therefore, in exercise of its amending power to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.\n\n3. Article 368 assumes the power to amend found elsewhere. In other words, Article 368 does not confer power on Parliament\n\nto amend the Constitution but merely prescribes the procedure for the exercise of such power to amend.\n\n4. The power to amend is to be. found in Articles 245 and 24!<\n\nread with Entry 97 in List I of the Seventh Schedule to the Constitution.\n\n5. In the exercise of the power of amendment, Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of original instrument for its better effectuation. In other words, the provisions of the Constitution could undoubtedly be amended but not so as to take away or abridge the Fundamental Rights.\n\n6. There is no distinction between the power to amend the Constitution and the ordinary power to make laws.\n\n7. Article 13(2) which contains an inclusive definition, prima facie takes in constitutional law.\n\n8. The residuary power of Parliament could be relied upon to call for a Constituent Assembly for making the new Constitution or radically changing it (This opmion however was tentative and not final).\n\n9. The Seventeenth Amendment Act impugned before the court as also the First, Fourth and Sixteenth Amendments were constitutionally invalid. Declaring these amendments invalid was, however, likely to lead to confusion and chaos and therefore these amendments would be deemed to be valid except for {uture purposes, by application of the principle of 'prospective invalidation'.\n\n10. In future, Parliament will have no power to amend Part III of the Chnstitution so as to take away or abridge the Fundamental Rights.\n\nHidayatullah J. agreed with the final decision expressed in the leading majority judgment and his views can be suminarised as follows:\n\n1. The power of amendment must be possessed by the State.\n\nOne could not take a narrow view of the word 'amendment' as\n\n61-36 s.c. India/73\n\n958 SUPREME COURT REPORTS [1973) Supp. s.c.R.\n\nincluding only minor changes within the general framework.\n\nBy an amendment, new matter may be added, old matter removed or altered.\n\n2. Article 368 outlines a process which if followed strictly results in tl1e amendment of the Constitution. The article gives power to no particular person or persons.\n\n3. The procedure of amendment, if it can be called a power at all is a legislative power but it is mi generis and outside the three Lists of Schedule Seven of the Constitution.\n\n4. There is no distinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, constitutional amendments must fall within the scope of Article 13(2).\n\n5. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368; that too, be.cause the Constitution has made them fundamental.\n\n6. Fundamental Rights cannot be abridged or taken away by the ordinary amending process._ Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly may be able to abridge or take away the Fundamental Rights. The Parliament was constituted with powers of legislatation which included amendments of the Constitution but only so far as Article 13(2) allowed.\n\n7. Parliament had no power to amend Article 368 so as to confer on itself oonstituent powers over the Fundamental Rights, This would be wrong and against Article 13{2).\n\n8. The conclusion recorded by the leading majority judgment was correct, not on the ground of prospective invalidatioo of laws but on . the ground of acquiescence. The First, Fourth and Seventh Amendments were part of the Constitution by acquiescence for a long time and could not there fore be challenged. They also contained authority fur the Seventeenth Amendment.\n\nWanchoo J. who delivered the leading minority judgment .tame to the following conclusions :\n\n1. Both the procedure and the power to amend the Constitution are to be found in Article 368 and not in Entry <;/ ef List I.\n\nKESAVANANDA 11. KERALA ( Chandrachud, J.) 959\n\n1. The word 'amendment' must be given its full meaning, that is, that the power was not restricted to improvement of details but extended to the addition to or substitution or deletion of existing provisions.\n\n3. In exercise of the power conferred by Article 368 it was competent to the Parliament by observing the procedure prescribed therein to amend any provision of the Constitution.\n\n4. The word 'law' in Article 13(2) could only take in laws made by Parliament and State Legislatures in the exercise of their ordinary legislative power but not amendments made under Article 368.\n\n5, The power to amend being a constituent power cannot be held to be subject to any implied limitations on the supposed ground that the basic features of the Constitution could not be amended.\n\n'Bachawat J. agreed with Wanchoo J. and stated:\n\n1. No limitation on the amending power could be gathered from the language of Article 368. Each and every part of the\n\nConstitution could therefore be amended under that Article.\n\n2. The distinction between the Constitution and the laws is so fundamental that the Constitution cannot be regarded as a law or a legislative act.\n\n3. Article 368 indicates that the term 'amend' means 'change'.\n\nA change is not necessarily an improvement.\n\n4. It was unnecessary to decide the contention whether the baaic features of the Constinition, as for example, the republic form . ci aovernment or the federal structure thereof could be amended, as the question did not arise for decision.\n\nllamannmi J. adopted a similar line of reasoning and held :\n\n1 '.fhat the definition of 'law' in Article 13(3) did not include\n\nm llmlls 'costional 31!!'C!!dhnt'. Had it been intended by the comtitutton.-malccrs that the Fundamental Rights guaran.tecd by .P3?J III shoald be completely outside the scope of Article 368 1t 1s rcasonaf, R to U!IJllle that th..,, would h made an: express provisimt ID diat dfcct. -, aye\n\n960 StJPREME COURT REpORTS [1973] Supp. s.c.R.\n\n2. The Preamble to the Constitution which declared India as a sovereign democratic rpblic was i:iot beyond _the scope of the amending power; smularly certam other basic features f the Constitution like those relating to distribution of legislative power, the parliamentary power of Goverent and the establishment of the Supreme Court and the High Courts were also not beyond the power of amendment.\n\n3. Every one of the articles of the Constitution is .ame~1da?Ie under Article 368 and there was no room for anv rmplicatton in the construction of that article.\n\nIt is thus clear that the majority of Judges in the Golak Nath case consisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. They held that Article 368 also conferred the power to amend the Constitution. They rejected the argument that the power to amend could be found in Entry 97 of List I. The majority of Judges consisting of Subba Rao, C.J. and his 4 colleagues as well as Hidayatullali J. held that there was no distinction between constituent power and legislative power and that the word 'law' used in Article 13(2) includes a law passed by Parliament to amend the Constitution. Subba Rao C. J. and his 4 colleagues suggested that if a Constitution had to be radically altered the residuary power could be relied upon to call for a Constituent .Assembly. Hidayatullah J. took a difierent view and held that for making radical alterations so as to abridge, Fundamental Rights Article 368 shoulll be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Arti cle 368. It .is important to mention that all the eleven Judges who constituted the Bench were agreed that even Fundamental Rights could be taken away but they suggested difierent methods for achieving that purpose. Subba Rao C.J. and his 4 colleagues suggested calling of a Constituent Assembly; Hidayatullali J. suggested an amendment of Article 368 for calling a Constituent Assembly after passing a law under Entry 97; the remaining 5 Judges held that the Parlirunent itself had the power to amend the Constitution so as to abridge or take away the. Fundamental Rights.\n\nThe leading majority judgment did not decide whether Article 368 itself could be amended so. as to confer a power to amend every provision of the Constitution. The reason for this was that the Golak Nath case was decided on the .baSts of the uiiam.cnded Article 368.\n\nThe question whether. Fundao:icntal Rights. eould be taken away by\n\nKESAVANANDA v. KEllALA ( Chandrachud, J.) 961\n\namending Article 368 was not before the Cou:t.\n\nTh~ question also whether in future Parliament could by amendmg Arl!cle . 36l! assume the power to amend every part and provision of the Const1:u1101,1 was not in issue before the Court. Such a question could anse ?irectlr,\n\nas it arises now, only after an amendment was in fact made m Arll de 368, and the terms of that amendment were known. The observa tion in the leading majority judgment putting restraints n the future power of the Parliament to take away Fundamental Rights cannot therefore constitute the ratio of the majority judgment. The learned Judges did not evidently consider that in future the chapter on Fundamental Rights could be made subject to an amendment by first amending Article 368 as is now done under the Twenty-Fourth Amendment.\n\nIt shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, not for the decision of an academic issue, but ro obtain a declaration that laws which\n\nffected their fundamental rights were unconstitutional. Those laws were upheld by the court but I suppose that the petitioners left the oourt with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree.\n\nAs stated above, 6 out of the 11 learned Judges held in the Golak Nath case that article 368 prescribed not merely the l?rocedure for amendment but conferred the power to amend the Constitution and that the amending power cannot be traced to the Residuary Entry 97 of List I, Schedule VII read with articles 245, 246 and 248 of the Constitution. I respectfully adopt this view taken by the majority of Judges.\n\nPart XX of the Constitution is entitled \"Amendment of the Constitution\", not \"Procedure for Amendment of the Constitution\". Article 368, which is the only article in Part XX must therefore be held to deal both with the procedure and the product of that procedure. The marginal note to article 368: \"Procedure for Amendment of the Constitution\" was orily a catchword and was in fact partially correct. It did not describe the consequence of the adoption of the procedure because the title of the part described it clearly. The justification of the somewhat inadequate marginal note to article 368 can be sought in the fact that the article does not confer power on any named authority but prescribes a self-executing procedure which if strictly followed results in this : \"the Constitution shall stand amended\". The history of the residuary power since the days of the Government of India Act, 1935, and the scheme of distribution of legislative power show that if\n\n962 SDPIU!MI! COUllT JIEPOl.TS [ 1973] Supp. s.c.R.\n\na subject of legislative power was prominently present to the minds of the framers of the Constitution, ic would not have been relegated to a Residuary Entry, but would have been included exprssly in th~ legislative list-more probably in List I. That the question of constitutional amendment was prominently present to the minds of the Constitution-makers is clear from the allocation of a separate Part- Part XX-to \"Amendment of the Constitution\". Then, the legislative power under Entry 97, List I, belongs cxclusivcl')' to the Parlia mcnt. The power to amend the Constitutio~ cann?t .be located . in that Entry because in regard to matters falling w1thm the proviso to article 368, Parliament docs not possess exclusive power to amend the Constitution. The Draft Constitution of India also points in the direction that the power of amendment cannot be located in the Residuary Entry. Draft Article 304, which corresponds to article 368, conferred by sub-article (2) a limited power of amendment on the State Legislatures also and those Legislatures neither possessed the residuary power of legislation nor did the State List, List II, include 'Amendment of the Constitution' as a subject of legislative power.\n\nFinally, the power to legislate under article 245 is \"subject to the provisions of this Constitution\", so that under the resiiduary power, no amendment could be made to any part of the Constitution, as any amendment is bound, to some exuent, to be inconsistent with the article to be amended.\n\nHaving located the amcndipg power in Art. 368 and having ex eluded the argument tha~ it can be traced to Entry 97 of List I, it becomes necessary to determine the width and scope of that power. Is the power unfettered and absolute or arc there any limitations-express, implied or inherent on its exercise I\n\n' .\n\nCounsel for the petitioner urges : (1) That the word 'amendment' is not a t; erm of art and has no precise and definite, or primaryand fundamental, meaning; (2) That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show that in the context thereof the word 'amencment' cannot cover alterations in, damage to, or destruction of anv v£ the essential fares of the Constitution; (3) That Article 13(2) by taking in const1tut10nal amendments constitutes an express limitations on the per of amendment; (4) That there are implit!d and inherent limitations on the amending power which disentitle Parliament to damage of destroy any of the essential features, basic elements or fundamental principles of te Constitution; and (5) That in construing the ambit of the amending power, the consequences on the power being held to be absolute and unfettered must be taken into account. Counsel says that Article 368 should not be read as expressing the\n\nIWAVANANDA \"· KERALA (Chandrachud, J.) 963\n\ndeath-wish of the Constitution or as being a provision for its legal suicide. Parliament, he says, cannot arrogate to itself, under Article .368, the role of an Official Liquidator of the Constitution. Each of these propositions is disputed by the Respondents as stoutly as they were asserted.\n\n'Amendment' is undoubtedly not a term of art and the various dictionaries, texts and law lexicons cited before us show that the word has several shades of meaning. (Sec for example the meanings given in The She>rter Oxford English Dictie>nary e>n historical Principles,. 3rd Ed.; Webster's Third New International Dictionary of the Eng lish Language; The Random House Dictie>nary e>f the English Langu age; The Dictionary of English Law, Earl Jowitt; Judicial and Statu\n\ntory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton's Law Lexicon,. 14 Ed.; Words and Phrases Permanent Edition; and The Construction of Statutes by Earl T. Crawford.)\n\nSome of the American State Supreme Courts have taken the view that the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, cir better carry out the purpo•e for which it was framed. (See Livermore\n\n'\" Waite, (1894) 102 Cal. 113; McFadden v.\n\nJordan, 32, Cal. Zd. 330; Foster v. Evatt, 144, Ohio St. 65). Another line of dccisiOJls, again of the American State Supreme Court, has accepted a \"wider meaning of the word 'amendment' so as to include within it even a 'revision' of a constitutional document. (Sec Edwards.\n\n11. Lcsscur, Southwestern Reporter, Vol. 33, p. 1120; EK Parte Dillon,.\n\nFederal Reporter No. 262, p. 563; Staples 11. Gilmer, Amctican Law Reports Annotated, Vol. 158, p. 495).\n\nIn brief, it would be corree1; to say that at least three different meanings have been generally given to the word 'amendment' :\n\n(a) to improve or better; to remove an error;\n\n(b) to niakc changes which may not improve the instrument but which do not alter, damage or destroy the basic features, essential elements or fundamental principles of the instrument sought to be amended; and\n\n( c) to make any changes whatsoever.\n\nThese texts and authorities arc useful in that they bring a sense of awareness of the constructional difficulties involved in the interpretation of a seemingly simple word like 'amendment'. But enriched\n\n964 SUPBEMl! COURT BEPORTS [1973] Supp. s.c.a.\n\nby such awareness, we must in the last analysis go to our own organic document for determining whether the word 'amendment' in Article 368 is of an ambiguous and uncertain import.\n\nThe various shades of meaning of the word 'amendment' may apply differently in different contexts, buu it seems to me that in the context in which that word occurs in Article 368, it is neither ambiguous nor amorphous, but has a definite import.\n\nThe proviso to Article 368 furnishes intrinsic evidence to show that the word 'amendment' is used in that article not in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that \"An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament'', and after the Bill is passed by the prescribed majority, \"the Constitution shall stand amended in accordance with the terms of the Bill''. The proviso says that the amendment shall also require to be ratified by the State legislatures of not less than one-half of the States if \"such amendment seeks to niake any change in\" the matters mentioned in clauses (a) to (e) of the proviso. \"Such amendment\" obviously means 'amendment' referred to in the main body of Article 368 and thus the article itself envisages that the amendment may take the form of 'change'. There is in this case a dictionary at every comer for every word and we were referred to various meanings of 'change' also. It is enough to cite the meaning of the word from the Oxford English Dictionary (Vol. I, p. 291): \"Change: substitution ... of one thing for another. Alteration in the state or quality of any thing\".\n\nWebster's 3rd New International Dictionary Vol. III pp. 373-4, gives the same meaning. It is clear beyond doubt that 'change' docs not mean only 'such an addition ... within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed'.\n\nParagraph 7 cl Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar proof of the meaning of the word 'amendment'. These two paragraphs provide for amendment of the respective Schedules in identical terms :\n\n\"Amendment of the Schedule.-(!) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.\n\n(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368.\"\n\nKESAVANANDA v. KERALA (Chandrachud, J.) 965\n\nTwo things emerge from these provisions of Paragraphs 7 and-21 of the Fifth and Sixth Schedules. Firstly, that tlie concept of \"amendment\" as shown by clause (1) takes in \"addition, variation or repeal\" and secondly, that an amendment even by way of \"addition, variation -or repeal\" would fall within the terms of article 368. It is expressly excepted from the scope of that article so that it may not fall within .it, which it otherwise would.·\n\nThe expression 'amendment' was used in a large number of articles of the Constitution as originally enacted: Articles 4(1)(2), 108(4),\n\n109(3)(4), 111, 114(2), 169(2), 196(2), 1~8(3) and (4), 200, 201, 204(2), 207(1)(2)(3), 240(2), 274(1), 304(b) and 349. A reference to the content and the subject matter of these articles would show that in almost every one of the cases covered by these articles, 'amendment'. would be by way of addition, variation or repeal.\n\nIn several provisions of the .original Constituti!on, different expressions were used to indicate conferment of the amending power. Article 35(b) called it \"altered, repealed, amended\"; Article 243(1) described it as \"repeal or amend\". The proviso to Article 254(2) describ•d it as \"adding to, amending, varytng or repealing\"; and Article 392(1) used the expression \"such adaptations, whenher by way of modification, addition or omission\". The English language has a rich vocabulary and there are such nice and subtle diffqenccs in the shades of meaning of different words that it is saik:I that there arc, in that language, no synonyms. But I find it impossible to believe that the -various expressions enumerated above have behind them aily calculated purpose or design. Their use may easily, though with a little generosity, be attributed to a common failing to attain elegance of language. Reading more than meets tlie eye tends to visit the writing with the fate reserved for the poems of Sir Robert Browning. When he wrote them, two persons knew what they meant - he and the God. After hearing the critics, God alone knew what the poet intended :\n\nConstitutions of several countries of the world show the words 'amendment', 'alteration', 'revision' .and 'change' are. sed promiscuously. The Constitutions of Liberia,- Trinidad and Tobago show that there is no difference in meaning between 'amendment' and 'alteration'.\n\nThose of Somalia, Jordan, Kuwait, Lebanon, and the Vietnam Democratic Republic show that there is no difference between 'amendment' and 'revision'. The Constitution of Belgium shows that the words 'revision' and 'alteration' are used in. the same sense. The Constitution of Barundi shows that 'amendment' denotes 'change'. The Constitutions of Monaco, Costa Rica, Cuba and Nicaragua show that 'amendment' can be total or partial.\n\n966 SUPREME COURT llEPORTS [ 1973] Supp. s.c.a.\n\nDr. D. Conrad says of article 368, in \"Limitatiop. of Amendment Procedures and the Constituent Power\" that \"it is hardly possible to restrict the legal meaning of amendment to 'improvement', nor can it be denied that by amendment complete articles may be removed or replaced\". The author is justified in this view. The Indian Constitution is neither the first written constitution of the world nor of course the last. Since tihe time that the first written Constitution, namely the American Constitution was framed in 1787 until today, the expres sion 'amendment' is known to occur at least in 57 Constitutions out of 71. It is inconceivable that the power of changing a written ins-. trument of fundamental importance would be so expressed for so long and in the constitutions of so many countries, if the word 'amendment'' was of doubtful import.\n\nOn August 21, 1946, the Go.nstit:uent Assembly passed the Government of India (Third Amendment) Act, 1949, which substituted a new section 291 in the Government of India Act, 1935 giving to the Governor-General the power to make such amendments as he considered necessary, whether by way of \"addition, modification or repeal\" in certain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent Assembly debaned Article 304 corresponding to present Article 368, using the word 'amendment' simpliciter.\n\nIn the deba_te on Article 304 amendment No. 3239 moved by Shri H. V.\n\nKarnath which sought to introduce in that article the words \"whether\n\nby way of variation, addition or. repeal\" was rejected.\n\nI am unable to read in this legislative history an inference that the word 'amendment' was used in Article 304 in order to curtail the scope -of the amending power. It is significant that the Government of India (Third Amendment) Act, 1939 was described in its title as an ''Act to further amend the G.I. Act 1935\" and the Preamble stated that it was expedient to amend the Government of India Act, 1935.\n\nBy Setion 4 the old Section 291 was \"repealed\" totally and the new section 291 was \"substituted\".\n\nBy section 3 a new sub-section was \"inserted\". By section 5 a new item was \"substituted\" and totally new itmes Nos. 31B and 31C were \"inserted\". The Act of 1949 therefore leaves no room for doubt that the word 'amend' included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words docs not necessarily produce a change in the meaning. (See Maxwell 'Interpretation of Statutes' .12th Ed., pp. 286 to 289; State of Bombay V!, Heman Alreja, A.I.R. 1952 Born. 16, 20 per Chagla C.J. and Gajendragadkar J.).\n\nFinally, it is importann that 5 out of the 11 fudges in the Golak Nath case took the view that the word 'amendment' must be given a wide meaning. Te leading majority judgment did not consider that\n\nl:JISAVANANDA v. KERALA ( Charniruchud, J.) 967\n\nquestion on the ground that so far as Fundamental Rights were con ccrned, the question could be answered on a narrower basis. Rama. swami J. also did not consider the meaning of the word 'amendment'.\n\nHowever, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J, and Bachawat J. took the view that the word must be girven a wide meaning.\n\nAccording to Hidayatullah J., \"By an amendment new matter may be added, old matter removed or alter\n\ncd'~.\n\nThus the word 'amendment' in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power contained in Article 368 to amend the Constitution is indeed so wide that it expressly confers a power by clause ( e) of the proviso to amend the amending power itself. No exprc.ss restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution.\n\nArticle 368, manifestly, docs not impose any express limitations.\n\nThe rcasdn for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limkations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the encrvat; cd strength of a document ev.olved in a context which may have largely lost its relevance. The power of amendment is a safety valve and. having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich('), ·\"The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the constitutional document to altered needs, revolution may result.\" That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a 'construction most beneficial to the widest possible amplitude\" of its powers must be adopted(').\n\nIf, on the terms of Article 368 the power of amendment is wide and unfettered, docs Art. 13(2) impose any restraint on that power ( Hereby hangs a talc. A majority of Judges held in the Golak Nath\n\n( 1) Constitutional Government & Democracy, 4th Ed. p. 139.\n\n( 2) British Coal Corporation v. Rex, 1935 (A.C.) 500, 518.\n\n968 SUPREME COURT REPORTS [1973) Supp. s.c.a.\n\ncase that the power of amendment was to be traced to Article 368.\n\nBut a majority, differently composed, held that amendment of the Constitution was 'law' within the meaning of Article 13(2) and, therofore, the Parliament had no power to take away or abrldge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of t:he decision in the Golak Nath case. It is therefore necessary to consider that question closely.\n\nI will set out in juxtaposition Articles 13(2), 245 .and 368 in order to highlight their inter-relation :-\n\n.Article 13(2)\n\nThe State shall not make atry law which takes\n\nway or abridges the rights conferred by this part.\n\n'Article 245\n\nSubject to the Provisions of this Consti .. tution Parliament may make laws !Or the whole or any part of the territor}- of India.\n\nEmphasis supplied)\n\nArticle 368\n\nAmendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of parliament, and when the Bill is passed each House by .a majority of the total membership of that House and by a majority of not less than two thirds of the \"'embers of that House present and voting, it shall be presented to the Presidentfor hil assent and upan such assent being given to the Bill, the Constitution shall stand amended in accordance with the ter; ms of the Bill.\n\nArticle 13(2) clearly echoes the language _of Article _245.\n\nArtie~ ~45 gives the power to 'make laws', while Article 13(2) imposes a hm1tation on the exercise of the power to 'make laws'. As be.tween c two articles, Article 13(2) is the paramount law fo~, _Aruc!e 245. 1s -expressly subject ta all the provisions of the Consutuuon mcludmg Article 13(2).\n\nKESAVANANDA ti. llRAW\\. (Chandrachud, J.) 969\n\nArticle 368 avoids with scrupulous care the use of the word 'law', because there is a fundamental distinction between constitutional law and ordinary law. The term 'constitutional law' is never used in the sense of including the laws made under the Con.s.titution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65). Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those. of ordinary laws. (Encycl0o paedia Britannica, Vol. VI, Constitution and Consnitutional Law, p. 314). As stated by Dicey in his 'Introduction to the study of the Law oc the Constitution' (10th Ed.,) pp. 149-151). the legislature in a federal constitution is a sub9rdinate law-making body whose laws are in the nature .of bye-laws within the authority conferred by the Constitution.\n\nArticles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between constitutional law and ordinary law. What is authorised to be done by these provisions would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.\n\nArticle 13 (I) provides :\n\n\"Laws inconsistent with or in derogation of the fundamental rights.-(!) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are in consistent with the provisions of this Part shall, to the extent of such inconsistency, be void.\"\n\nThis article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre-Constitution laws shall be void.\n\nArticle 13(2) pursues the same strain of thought by making void posl-\n\nConstitution laws to the extent of their inconsistency with the provisions of Part HI. The pre-Constitution and the po.st-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from constitutional laws.\n\nCounsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, notwithstanding the repeal of. these two enactments, all the laws in force in the territory\n\n970 SUPREME COURT llEPORTS [ 1973] Supp. s.c.R.\n\nof India immediately before the commencement of the Constitution continued in force until altered, repealed or amended. It is urged that several constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13(1) was partly to save those laws also. There is no substance in this contention. It is in the first place a proposition of doubtful authority that the Indian States had a constitution properly so-called. But even assuming that such constitutions were at one time fa force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13(1) therefore does not include any constitutional Jaws.\n\nArticle 13(3)(a) contains an inclusive \\lefinition of 'law' as inclu,. cling any Ordinance, order bye-law, rule regulation, notification, custom or usage having in the territory of India. the force of law.\n\nIt is surprising that the necessity to include amendments of the Constitution within the inclusive definition of 'law' should have been overlooked if indeed Article 13(2) was intended to take in . constitutional amendments. There is high and consistent authority for the view that -Constitution is the fundamental or basic law, and that it is a Jaw of superior obligation to which the ordinary law must conform. (Corpus Juris Secundum, Vol. 16, pp. 22-25 ; Weaver-Constitutional Law and its Administration (1946) p. 3 ; Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146). Unless, therefore, canstitutional Jaw was expressly included in Anicle 13(3)(a), it would fall outside the purview of Article 13(2).\n\nIn America, there is a large volume of authority that the legisla tures of the various States, in initiating constitutional amendments do not exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal constitution of America, a State constitutional provision or amendment is 'law' within the meaning of the federal constitution. Again, when und'er Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, nei'ther the Congress nor the States are. leg& la ting. (Corpus Juris Secundum, Vol. 16, pp. 48, 'l9 ; Charles . .II..\n\nBurdick-The Law of the American Constitution, pp; 40.42).\n\nThe fundamental distinction between . constitutional 1aw an& ordinary Jaw lies in the criterion of validity. In the case of °'1Jstifll0. tional law, its validity is inherent w hcreas in the case of an ordinary law its validity has to he decided on the touchstone of the constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between lcgislati•e power and the constituent\n\nKESAVANANDA ti. KERALA (Chandrachud, J.) 971\n\npower. In a controlled constitution like ours, ordinary powers of legislatures do not include the power to amend the constitution because the Body which enacts and amends the constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity.\n\nThere is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by not less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by tlie legislatures of not less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does not provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly .be called an ordinary legislative process for, the ratification is required to be made by \"resolutions\" to that effect. Ordinary bills are not passed hy resolutions.\n\nThe distinction between constituent power and ordinary legislative power can best be appreciated in the context of the nature of the Constitution which the court has to interpret in regard to the amending power. In Mccawley vs. The King('), Lord Birkenhead used the words 'controlled' and 'uncontrolled' for bringing about the same distinction which was made between 'rigid' and 'flexible' constitution first by Bryce and then by Dicey. In a 'controlled' or 'rigid' constitution, a different procedure is prescribed for amendming the constitution than the procedure prescribed for making ordinary laws.\n\nIn an 'uncontrolled' or 'flexible' constitution the procedure for amending the constitution is same as that for making ordinary laws.\n\nfo such a constitution, the distinction between constitutional laws and ordinary \"laws tends to become blurred because any law repugnant to the constitution repeals the constitution pro tanto [McCawley vs. The King(')].\n\nThus, the true ground of division, by virtue of the nature ot the constitution, is whether it is flexible or rigid. That depends upon whether the process of constitutional law-making is or is not identi-\n\n( 1) [1920] .A.C:. 691.\n\n972 suPllEME COURT Rl!PORTS [1973] Supp. s.c.R.\n\ncal with the process of ordinary law-making. A typical instance of a flexible constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. \"In short, then, we may say that the constitution which cannot be bent without being broken is a rigid constitution.\" (See Modern Political Constitutions: an Introduction to the Comparatiivc Study of Their History and Existing Form by C. F.\n\nStrong, 1970 Reprint). The Indian Constitution, considered as a whole is a 'controlled' or 'rigirl' constitutiX>n, because, broadly, none of the articles of that constitution can be amended otherwise than by the special procedure prescribed by article 368. Certain provisions thereof like articles 4 read with article 2 and 3, article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of article 368. Schedules V and VI of the Constitution are in fact a constitution within a constitution.\n\nThe distinction between 'flexible' and 'rigid' constitutions brings into sharp focus the true distinction between legislative and constituent power. This is the distinction which, with respect, was not given it• due importance by the majority in the Golak Nath case. In a rigid constitution, the power to make laws is the genus, of which the legiS:. lative and constituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative ; if it is special, the power is constituent.\n\nThis discu,,.;, ion wilL show that in a rigid' or 'uncontrolled' constitution-like ours-a law amending the constitution is made in exercise of a constituent power and partakes fully of the character of constitutional law. Laws passed under the constitution, of which the validity is to be tested on the anvil of the constitution are the only laws which fall within the terms of article 13(2).\n\nThe importance of this discussion consists in the injunction contained in Article 13(2) that the State shall not make any 'law' which takes away or abridges the rights conferred by Part III. An Amendment of Constitution within the terms of article 368 not being law within the meaning of article 13(2), it cannot become void on the ground that ii: takes away or abridges the rights conferred by Part III.\n\nFundamental Rights undoubtedly occupy a unique place in civiliz.. ed societies, whether you call them \"transcendental\", \"inalienable\", . or as Lieber called them, \"Primordial\". There is no magic in these words for, the strength and importance of these rights is implicit\n\nKESAVANANDA v. KERALA ( Chandrachllll, J.) 973\n\nin their very description in the Constitution as \"fundamental\", But the special place of importance which they occupy in the scheme of the constitution, cannot by itself justify the conclusion that they arc beyond the reach of the amending JM?WCr. Article 13(2) clearly docs not take in the amencling power and article 368 docs not except the Fundamental Rights from its scope.\n\nBut they cannot be tinkered with and the Constitution haS taken care to ensure that they do not become a mere 'plaything' of a special majority. Members of the tok Sabha arc elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, constitutional amendments arc required to be passed under article 368 by a majority of the total membership of each House and by a majority of not less than two. thirds of the members of each House separately present and voting.\n\nIn matters falling within the proviso, amendments arc also required to be ratified by the Legislatures of not less than half of the States.\n\nRajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who arc directly elected by the people themselves. 'The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion.\n\nI will now procc; cd ua consider an important branch oi the petitioner's argument which, frankly, seemed to me at first sight plausible.\n\nOn closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned counsel that it is immaterial whether the amending power can be f!>Ulld in Article 368 or in Entry '17 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations.\n\nThe argument takes this form : Constitutions must of necessity be general rather than detaiiled and prolix, and implication must therefore play an important parli in constitutional construction. Implied limitations are those which arc implicit in the scheme of the constitu. tion while inherent limitations are those which inhere in an authority from its very nature, character and composition. Implied limitations arise from the circumstances and historical events which led to the enactment of our constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitu. tion are basic Human Rights, sometimes described as \"Natural Rights\", which correspond to the rights enumerated in the \"U nivcrsal Declaration of Human Rights\", to which India is a signatory. The ultimate 90\\'Cldgnty resides in the people and the power to alter or dcstory\n\n62-36 S Q. India/73\n\n974 SUPREME couar REPORTS [1973] Supp. S.C.R.\n\nthe essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are not associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution.\n\nIf the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be construed as authorising the destruction of other powers conferred by the same instrument. If there are no inherent limitations on the\n\namending power of the Parliament, that power could be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore no amendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is it• identity card.\n\nCounsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the core of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution.\n\nCounsel finally urges that the history of implied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council.\n\nIn answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Cqnstitution and can be amended by Parliament, tha~ there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the amending power.\n\nBefore dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt wi'.h in he. C?ol.ik Nath case. Subba Rao C.J. who delivered the leadmg maionty iud~ ment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). Ac-cording to Hidayatullah J. \"the whole Constitution is open to amendment. Only two dozen\n\nKESAVANANDA 11; KEJIALA ( Chandrachud, J.) 975\n\narticles arc outside the reach of Article 368. That too because the Constitution has made them fundamental.\" (p. 878). Wanchoo J. who delivered the leading minority judgment rejected the argument by observing : \"The power to amend being a constituent power cannot in our opinion .... be 'held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended.\" (p. 836). Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the asc to say that Fundamental Rights were within the reach of the amending power (p. 906). Ramaswami J. considered and rejected the argument by observing that there was no room for an implication in the construction of Article 368 and it was unlikely that if certain basic features were intended to be unamendablc, the Constitution makers would not have expressly said so in Article 368 (p. 933).\n\nIt is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights arc natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitutionmakers. Article 13(2) speaks of rights \"conferred\" by Part III and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights 'conferred' by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people.\n\nArticle 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted w abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights \"conferred\" by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a .\n\npart of religion but such denials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J. ;(') see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-\n\n11) Sri Venkataramana Devaru and Ors. vs. The State of Mysore and Ors.\n\n976 SUPREME couaT llPOJtTS [1973] Supp. s.c.Jt.\n\nhead L C. ). Thus, in India, citiacns and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution.\n\nThe 'natural right' theory stands, by and large repudiated today.\n\nThe notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is . the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value.\n\nAccording to Burgess, \"there never was, and there never can be any liberty upon this earth ampng human beings, outside of State organisation.\" According to Willoughby, natural rights do not even have a moral value in the supposed \"state of nature\" ; they would really be equivalent to force and hence have no political significance.\n\nThus, Natural Right thinkers had once \"discovered the lost titl.e-deeds of the human race\" but it would appear that the deeds are lost oru:e over again, perhaps never to be resurrected.\n\nThe argument in regard t.o the Preamble is that it may be a part ol the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Pceamble reqords like a sun-beam certain glowing thoughts and concepts of history and the argument is that in its very\n\nnatur~ it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history.\n\nCounsel relics for a part of this submission on the decision in Beru Bari case.(1) Our attention was also drawn to certain passages from the chapter on \"preamble\" in \"commentaries on the Constitution of the United States\" by Joseph Story.\n\nI find it impossible to accept the contention that the Preamble is not a provision of .the Constitution. The record of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. (Constituent Assembly\n\nDebates, Vol. X, pp. 429, 456). As a part and provision d the Constitution, the Preamble came into force on January 26, 1950. The view is widely accepted that the Preamble is a part of the enactment. (Craies on Statute Law, 7th Ed? p. 201 ; Halsbury, Vol. 36, 3rd. Ed., p. 370).\n\n(') [1960] 3 S.c.R. 250, 282.\n\nKl!SAVANANDA v. KElALA (Chantlrachud, J.) 977\n\nIn considering the petitioner's argument on inherent limitations, it is well to bear in mimd some of the basic principles of interpretation.\n\nAbsence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prolllbition is lllghly rcleva11t for inferring that there is no implied prolllbition. Tills is clear from the decision of the Privy Council in The Queen v. Burah.(') Tills decision was followed by this Court in State of Bombay v. Nauratan Das faitha Bai(2) and in Sardar lnder Singh v. State of l?Jziasthan.(') In saying tills, I am not unmindful of the fact that Burah's case and the two cases which followed it, bear primarily on conditional legislation.\n\nAnother principle of interpretation is that it is not open to the courts to declare an Act void on the ground that it 'is opposed to a 'spirit' supposed to pervade the . constitution but not manifested in words. &, observed by Kania C.J. in Gopalan's case,(') a wide assumption of power to construction .is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights.\n\nThe argument of 'spirit' is always attractive and quite some eloquence can be infused into it.\n\nBut one should remember what S. R. Das J. said in Keshav Madhav Menon's case(') that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous consequences arc likely to ensue : for,\n\njudges are not concerned with the policy of law-making and ''you cannot pass a coven censure against the legislature.\" (Vacher & Sons, Limited v. London Society of Compositors).(') The importance of the circumstance that the language of Article 368 admits of no doubt or ambiguity is that such a language leaves no scope for implications, unless in the context of the entire instrument in which it occurs, such implications become compulsive. I am tempted to say that 'context' does not merely mean the position of a word to be construed, in the collocation of words in wlllch it appears, but it also means the context of the times in which a fundamental instrument falls to be construed.\n\nAn important rule of interpretation wlllch, I think, has a direct bearing on the submissions of the petitioner on inherent limitations is that if the text is explicit, it is conclusive alike in what it directs and\n\n( 1) 5 I.A. 178, 195.\n\n(2) 1951 (2) S.C.R. 51, 81.\n\n(') 1957 S, C.R. 605, 616-17.\n\n(') 1950 S.C.R. 88, 121.\n\n(') 1951 S.C.R. 228, 231. (') 1913 (A.C.) 107 at 112, 117, 121.\n\n978 SUPRl!ME a>mT UPOATS [ 1973] Supp. s.c.a.\n\nwhat it forbids. The consequences of a particular construction, i£ the text be explicit, can have no impact on the comtruction oE a constitu tional provision (Attorney-Gen\"al, Ontario v. AttDrntyGetl(r'ir/, Canada)(1). As observed by Chief Justice Marshall in Providence Bank v. Alpluus Billi11g1,(') a power may be capable of being abwCd but the constitution is not intended to furnish a corrective for every abuse of power which may be committed by the government. I see no warrant for the assumption that the Parliament will be disposed to out a perverse construction on the powers plainly conferred on it by the Constitution. And talking of abuse of powers, is there not the widest scope for doing so under several provisions of the constitution ?\n\nThe powers of war and peace, the powers of finance and the powers of preventive detention, arc capable of the widest abuse and yet the Founding Fathers did confer those powers on the Parliament. When I look at a provision like the one contained in Article 22 of the Constitution, I feel a revolt rising within myself, but then personal predi-. lcctions arc out of place in the construction of a constitutional provision. Clause (7) of Article 22 permits the Parliament to enact a law under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, . of the period of detention though, so it seems, it is under no oblig-tiol).\n\nto do so. Thus, even when the original constitution was passed, powers capable of the gravest abuse were conferred on the Parliament, which as the petitioner's counsel says, is but a creature of the constitution. ln assessing the argument that the gravity of consequences is relevant on the interpretation of a constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner vs. New York(') regarding a labour statute. The test according to the learned Judge was not whether he considered the law to be reasonable but whether other reasonable persons considered it unreamable. In Bank of Toranto vs. Lambe,(') Lord Hobhousobservcd: \"People who are trusted with the great power of makling laws for property and civil rights may well be trusted to levy taxes.'' Trust in the elected representatives is the corner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in \"the spirit of liberty\" :\n\n\"I often wonder whether we do not rest our hopes too much upon constitution, upo~ laws and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save\n\n( 1) [1892] A.C. 571. (') L. ed. 939, 957. (') 49 L. ed. 937.\n\n( •) [I 887] A.C. 575, 586.\n\nKESAVANANDA \"· KERALA (ChandrachuJ, J.) 979\n\nit ; no Constitution, no law, no coun can even do much to help it.\n\nWhile it lies there it needs no constitution, no law, no court to save.\"\n\nEstablished text books on Interpretation also take the view that \"where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the stature speak the intention of the legislature.\"(')\n\nIt is thus clear that part from constitutional limitationi, no law can be struck down on the ground that it is unreasonable or unjust.\n\nThat is the view which was taken by this Court in the Sllltt of Bihar v.\n\nKameshwar Singh.(') Mahajan J. Described the Bihar Land Reforms Act, which was under consideration in that case, as repugnant to the\n\nsense of justice of the court. In fact, the learned Judge says in hisj!Jdgment that it was not seriously disputed by the Attorney-General, that the law was highly unjust and inequitous and the compensation provided therein in some cases was purely illusory. The Court, however, found itself powerless to rectify an \"unjusticc\" perpetrated by the Constitution itself. No provision incorporated in a Constitution at the time of its original enactment can ever be struck down as unconstitutional. The same test must apply to what becomes a part of that constitution by a subsequent amendment, provided that the conditions on which alone such amendments can be made arc strictly complied with. Amendments, in this sense, pulpate with the vitality of the Constitution itself.\n\nThe true justification of this principle is, as stated by Subba Rao J. in the Collector of Customs, Baroda v . .Digvijaysinhji Spinning & Weaving Mills Ltd.,(\") that a construction which will introduce uncertainty into \"the law must be avoided. It is conceded by the petitioner that the power to amend the constitution is a necessary attribute of every constitution. In fact, atb.Jndments which were made by the Consti tution (First Amendment) Act, 1951 to articles 15 and 19 were never assailed and have been conceded before us to have been properly made.\n\nIt was urged by the learned counsel that the substitution . of new clause (2) in Article 19 did not abrogate the Fundame_mal Ri_ghts, but on the other hand enabled the citizens at large to enJOY their fundamental freedoms more fully. This, I think, is the crux o~ the matter.\n\nWhat counsel concedes in regard to Article 19 (2) as sbst1tuted by the First Amendment Act can be said to be equally true m regard to th.e amendments now under challenge. Their true object and purpose is\n\nto confer upon the community at large the blessings of liberty. The\n\n(1) Craics on \"Statute Law\", 6th Ed., p. 66.\n\n( 2 ) 1952 S.C.R. 889, 936-937.\n\n( 3) [1962] I S.C.R. 896, 899.\n\n980 SUPREME COURT REPGRTS ( J973J Supp, S.C.R,\n\nargument is that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution. I see formidable difficultiies in evolving an objective standard to determine what would constitute< the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable.\n\nQounsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is con10eded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committ<:d breaches of trust but no one for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system?\n\nCan we become. a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the constitution and then amend the amending power itself so .to as provide that 'in future no amendment shall be made except by a 99 per cent majority? Can the Parliament extend its term from 5 to 50 years and create a legislative monopoly '.in its favour ? These are the questions which counsel has asked. My answer is simple. History records that in times of stress, such extreme steps have been taken both by the people and by the Parliament. In 1640, when England was invaded by Scots, Charles the I was obliged to recall Parliament to raise money for the war. The 'Short' ParliamCl)t insisted on airing its grievances before voting the money and was dismissed. Charles had to summon a new Parliament immediately, and this 'Long' Parliament lasting until 1660, set out to make per_sonal government by a monarch impossible. The true sanction agaiast such political crimes lies in the hearts and minds of men.\n\nIt is .there that the liberty is insured. I therefore say to myself not in a mood of desperation, not in a mood of helplessness, not 'cynically but in the true spirit of a democrat : If the people acting through the Parliament want to put the Crown of a King on a head they like, or if you please, on a head they dislike, (for uneasy lies the head that wears a Crown), let them have that liberty. If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds. As I say this, I am remindr.d of a famous saying of Justice Holmes: \"About seventy-five years ago, I learnt that I was not God. And so, when the people .... want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not : 'God-dammit, let 'cm do it l\"\n\n'' '\n\n' ffe\n\n. '\n\n. ('\n\nKESAVANANDA v. KERALA (Chandrachud, J.) 981\n\nNo name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson., He was the -central figure ; n the early development of American dernocracy, and -on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that. 'The earth belongs in usufruct to the living ; the dead have neither powers nor rights over\n\nit.\" '!If one generation could hind another, the dead and not the living would rule ... Since conditions change and men change, there must be opportunity for corresponding change in political institutions, and also for a renewal of the principle of government by consent of the governed.'' According to President Wilson, \"a constitution must -of necessity be a vehicle of life ; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes.'' ·\n\nIn support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity' of instrumentalities : The means and insttumentalities of the State Governments should be left free. and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India('). Sinha C.J. observed that the argument presented before the Court was : \"a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch vs. Maryland has been decisively rejected by the Privy Council... and has been practically g'iven up even in the United States.'' The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the control of the other. Dr. Wynes observes in his book : \"Legislative, Executive and Judicial Powers in Australia (4th Edition)\" that the doctrine has undergone considerable change in the United States and it.s progressive retreat is traced by Dixon J. in the Essendon Corporation case.(2) In that case, after tracing the !ustory of the doctrine since its enunciation by Chief Justice Marshall, Dixon J. says1: \"I thinh that the abandonment by the Supreme Court of the United States of the old doctrine may be fairly said to be now complete.'' .\n\nA large number of cases bearing on inherent or implied limitations were cited to us from U.S.A. Canada, Australia, South-Africa and Ceylon. Having considered those cases carefully, I find it difficult to say that the theory of implied or inherent limitations has received a wide recognition. In McCawley v. R.( 3 ) the dissenting\n\n(') [1964) 1 S.C.R. 394, 407.\n\ne) [1947) 74 C.L.R. l, p. 19 .\n\n.(') [1920) A.C. 691, 28 CL.R. 105.\n\n982 SUPREME COURT REPORTS [1973] Supp. s.C.R.\n\njudgment of Isaacs and Rich JJ. in the Australian High Court wa$ upheld by the Privy Council, except ill regard to a matter which is here not relevant. The judgment of the two learned Judges which received high praise from the Privy Council (p. 112 of Commonwealth Law Reports), shows that implications in limitation of power ought not to be imported from general concepts but only from express or necessarily implied limitations. It also shows that in granting powers to colonial legislatures, the British Parliament, as far back as 1865, refused to place on such powers limitations of vague character. '1'.he decision of the Privy Council in Bribery Commissioner v. Ranasinghr:-\n\n(1965 A.C. 172) was .discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was not noticed in the judgment of the leading majority in the Golak Nath case. It was not argued by the respondents; in Ranasinghe's case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did not raise any question regarding the religious rights protected by section 29(2) and (3) of the Ceylonese Constitution. It is clear that counsel for the respondents theJe stated (p. 187), that there was n\" limitation on the power of amendment except the procedure prescri• bed by section 29(4), and that even that limitation could be removed by an amendment complying with section 29( 4). The Privy Council affirmed this position (page 198) and took the widest view of the amending power. A narrower view was in fact not argued.\n\nFrom out of the decisions of the American Supreme Court, ft would be sufficient to notice three : Rhode Island v. Palmer('); U .r.\n\nv. Sprague(') and Schneiderman v. U.S.A.(')\n\nIn the Rhode Island case, the leading majority judgment gave no reasons but only a summary statement of its conclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various counsel therein. The briefs show that the 18th amendment regarding \"Prohibition of Intoxicating Liquors\"\n\n(which was repealed subsequently by the 21st Amendment) was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under article .V of the American Constitution. These arguments were not accepted by the Supreme Court, as .is implicit in its decision. The court upheld the Amendment.\n\n(') 64 L. ed. 946.\n\n( 2) 75 L. ed. 640.\n\n( 8) 87 L. ed. 1796.\n\nKESAVANANDA \"· KERALA ( Chandrachud, J.) 9-83\n\nWe were supplied with a copy of the judgment of the District Court of New Jersey in Sprague's case. The District Coun declared the 18th Amendment void on the ground that there were inhercnr limitations qn the amending power in that, the power had to conform to \"theories of political science, sociology, economics etc.\"· The judgment of the Supreme Coun shows that not even an attempt was made to suppon the judgment of the District Court on the ground of inherent limitations. The appeal was fought and lost by Sprague on entirely different grounds, namely : whether 'amendment' means 'improvement'; whether the 10th Amendment had an impact on article 5 of the U.S. Constitution and whether the alternative of ratification by Convention or Legislatures showed that the method of Convention was essential for valid ratification when the amendment affected the rights of the people. Obviously, the Supreme Court saw no merit in the theoretical limitations which the District Coun had accepted for, in a matter of such grave irnportance, it would not have reversed the District Court judgment if it could be upheld on the ground on which it was founded.\n\nIn Schneiderman's case, action was taken by the Government tcr cancel the appellant's naturalisation certificate crn the ground that at ihe time crf applying for. naturalisation, he was and still continued tcr be a cmnmunist and thereby he had misrepresented that he was\n\n\"attached to the principles of the .Constitution of the United Statrs\".\n\nSchneiderman won his appeal in the Supreme Ccrurt, the main foundation of the judgment being that the fundamental principles of Constitution were open to amendment by a lawful process.\n\nLeading Ccrnstituti<>/131 writers have ta!, en the view that the American Supreme Coun has not ever accepted the , rgument that there are implied or inherent limitations on the anending power contained in article 5. Edward S. Corwin, who was : vited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after considering thr challenges made to the 18th and 19th Amendments on the ground of inherent limitations : \".brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid(')\". According tcr Thomas M. Cooley, there is no limit to the power of amendment beyond the one contained in article 5, that no State shall be deprived of its equal suffrage in the Senate without its consent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases (which include the Rhode Island case). The decision, according tcr Cooley, totally negatived the con-\n\n(1) Constitution of the United States of America prepared by Edward S.\n\nCorwin, 1953, p. 712.\n\n984 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\ntention that : \"An amendment must be confined in its scope to an .alteration or improvement of that which is already contained in the\n\n-COnstitution and cannot change its basic structure, include new grants of power to the Federal Government, nor relinquish to the :State those which already have been granted to 1t('). According to Henry Rottschaefer, it was contended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, \"but the Supreme Court has thus far rejected .cvery such claim(')\".\n\nIn regard to the Candian cases, it would, I think, be enough to -say that none of the cases cited by the petitioner concerns the exer- <ise of the power to amend the Constitution.\n\nThey are cases on the legislative .competence of the provincial legislatures in regard to indi- -vidual freedoms or in regard to criminal matters. The issue in most of these cases was whether the provincial legislature had transgressed on the Dominion field in exercise of its. powers under Section 92 of the British North America Act, 1867. The Canadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an -express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights. At least SL'< different views have been propounded in Canada on the fundamental importance of these rights . . According to Schmeiser, the Supreme Court of Canada has not given judicial approval to any of these views. \"It should also be noted that the fundamental problem is not whether Parliament or the Legislatures may give us our basic freedoms but rather which one may interfere with them or take they away(')\". I do not think therefore, that any useful purpose will be served by spending time on Hess's case (4, D.L.R. 199); Saumur's case (4, D.L.R. 641) ; Switzman's case\n\n(7, D.L.R. (2nd) 337) ; or Chabot's case (12, D.L.R. (2nd) 796), which were cited before us.\n\nThe view that there are implied limitations found from Sections Ii' and 50 of the British North America Act was invoked bv Duff C.J. m the Albcrt,1 Pre,; s C:isc(') and by three !corned Judges in the Saumur\n\nCae. It i::, ho\"ever, iinportant th:-tt \\vhile denying legisl:.ltiYe cornpe~ tence to the province of Alherta Duff C.). was willing to grant the jurisdiction to the Parli:imcnt ro kgislote for the protection of thi• right.\n\n( 1) The Gener:il Principles of ConstitutiC1n:tl L:t\\V in the lT.S.:\\. by Thomas M. Cooley, 4th Edn., pp. 46-4i.\n\n(2) Handbook of American Constitutio1~.:il La\\\\\" by Henry Rottschaefer, pp. 8-10.\n\n(3) Civil Liberties in Canada by Schmeiser, p. 13. (') (1938] S.C.R. 100, 146 (Canada).\n\nXl!SAVANANDA v. Kl!RALA ( Chandrachud, J.)\n\n98S\n\nThe pctitioincr has relied strongly upon the decision Wi Attomey- General of Nova Scotia v. Attorney-General of Canada,(') but the\n\ntrue ratio of that decision is that neither the federal nor the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners(') is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature ot man ; they cannot be taken away. Ttus view has not been shared by any judge of the Supreme Court and would appear to be in conflict with the decision in Henry Briks &- Sons v. Montreal.(\")\n\nI do not think, that any useful purpose will be served by discussing: the large number of decisions of other foreign courts cited before us.\n\nAs it is often said, a constitution is a living organism and there can be no doubt that a constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions.\n\nRyan's(') case created a near sensation and was thought to co, er the imprtant points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting article 47 of the Constitution which contained the provision for referendum, and which also inrorporated an amendment in article 50. This latter article conferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of: the constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the , ground that there were implied limitations on the power of amendment. An important point of distinction between our Constitution and the Irish Constitution is that whereas article 50 did not contain any power to amend that article itself, Article 368 of our Constitution confers an express power by clause ( e) of the Proviso to amend that article. The reasoning of the learned Chief Justice therefore loses relevance in the present case. I might mention that in Moore v.\n\nAttorney General for the Irish State(\") in wliich a constitutional\n\n(') [ 1951] S.C.R. 31 (Canada).\n\n(2) [1947] 12 D.LR. (No. 2) 796. (•) [1955] s.c.R. 799 (Canada). (') [1935] Irish Rcporu 170.\n\n(•) [1935] A.C. 4t4.\n\n.986 RlPllMB !lOU•T uPOan [ 1973] Supp. s.c.a.\n\namendment made in 1933 was challenged, it was conceded before the Privy Council that the amendment which was under lire in Ryan's asc was validly made. The Privy Council added to the concession the weight of its own opinion by saying that the concession was made 'rightly'.\n\nSeveral Australian decisions were relied upon by the' petitioner . but I will refer to the one which was cited by the petitioner's counsel <luring the course of his reply ; Taylor v. Attorney General of Queens Jllflll.(') The observations of Isaacs J. on which the karned counsel relics seem to me to have been made in the context of the provisions of the Colonial Laws Validity Act. The real meaning of those observations is that when power is granted to a colonial legislature to alter the constitution, it must be assumed that the power did no comprehend the right to eliminate the Crown as a part of the colonial legislature. Ir may be mentioned that well-known constitutional writers(\")\n\nhave expressed the view that all the provisions of the Australian constitution, including article 128 itself which confers power to amend the Constitution, are within the power of amendment. Tills view has been taken even though article 128 does not confer express power to amend that article itself.\n\nWhile winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen(') in which it was held that the powers of the Ceylon legislature could not be cut down by reference to vague and uncertain expressions like 'fundamental principles of British law'.\n\nIt must follow from what precedes that The Constitution (Twentyfourth Amendment) Act, 1971 is valid. I have taken the view that constitutional amendments made under Artkle 368 fell outside the purview of Article 13(2). SeGtion 2 of the 24th Amendment Act reiterates this position by adding new clause ( 4) in Article 13 : ''.( 4) Nothing in this article shall apply ro any amendment of this Constitution made under article 368.\" I have also taken the view that the old article 368 not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment. That position is made clear by section 3 of the 24th Amendment which substitutes by clause (a) a '\n\n( 1) 23 C.L.R. 457.\n\n( 2) A. P. Canaway, K. C.: ''The Safety Valve of the Common\\vealth Constitution\", Australian Law Journal, Vol. 12, (1938-39), p. 108 at 109; W.\n\nAnstey Wynes: \"Legislative, Executive and Judicial Powers .in Australia\", 4th Edn,, Chapter XVII, p. 507.\n\n( 1) (1967) I A.C. 259.\n\nKESAVANANDA v. KERALA ( Chantlrachud, J.) 987\n\nfully expressive marginal heading to Article 368. I have held that the power of amendment conferred by Article 368 was wide and untrammelled.\n\nFurther, that constitutional amendments arc made in the exercise of constituent power and not in the exercise of ordinary law-making power. That position is reiterated by clause (b) of section 3. Clause (c) of section 3 makes it obligatory for the President to give his assent to the bill for a constitutional amendment. Rightly no arguments have been addressed on this innovation. Finally, clause\n\n(d) of section 3 of the 24th Amendment excludes the application of Article 13' to an amendment made under Article 368. As indicated in this judgment that was the correct interpretation of Articles 13 and 368.\n\nThe Constitution (Twenty-fourth Amendment) Act, 1971, thus, merely clarifies what was the true law and must therefore be held valid.\n\nThe Twenty-Fifth Amendment\n\nThe Constitution (Twenty-Fifth Amendment) Act, 1971, which came into force on April 20, 1972 consists of two effective sections : sections 2 and 3. Section 2(a) substitutes a new clause (2) for the original clause (2) of Article 31 of the Constitution. Under the original Article 31(2), no property could be acquired for a public purpose under any law unless it provided for compensation for the property taken possession of or acquired and either fixed the amount of the compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and give!h In the State of West Bengal v. Bela Banerjee('), a unanimQUs Bench presided over by Patanjali Sastri C.J. held that the principles of compensation must ensure the payment of a just equivalent of what the owner was deprived of. The Constitution (Fourth Amendment) Act was passed on April 27, 1955 in order tp meet that decision. By the Fourth Amendment, an addition was made to Article 31(2) providing that \" .... no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate.\" The effect of the amendment was considered by this Court in P.\n\nVajravelu Mitdaliar v. Deputy Collector('). The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing compensation different from those prescribed in the Land Acquisition\" Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, 'compensation' and 'princi pies' as were found in article 31 before its Amendment, was a\n\n( 1)\n\n[ 1954] S.C.R. 558.\n\n\n988 suPuME couu ltEPOP.TS [ 1973] Supp. s.c.P..\n\nclear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjee' s case. The Legislature, tlicrefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was interpreted to mean that neither the principles prescribing the 'just equivalent' nor the 'just equivalent' could be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the worlding of the principles. By applying this test, the Court upheld the principles of compensation fixed under the Madras Act as not contravening article 31(2). The Act, however, was struck down under article 14 on the ground that full compensation had still to be paid under a parallel Law : The Land Acquisition Act.\n\nIn Union v .. Meta/, Corporation,(') a Bench of two Judges consisting of Subba Rao C.J. and Shclat J. held that the law of acquisition in order to justify itself had to provide for the payment of a 'just equivalent' or lay down principles which will. lead to that result. It is only if the principles laid dOwn are relevant to the fixation of compensation and arc not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this dccisiDn marked a departure from the judgment in Vajravclu's case.\n\nIn the State of Gujarat v. Shanti/al Mangaldas,(\") Shah /. speaking for himself and three other learned Judges expressed his disagreement with the observations of Subba Rao C.J. in the Metal Corporation's case and expressly over-ruled that decision. It was held that if the quantum of compensation was not liable to be challenged on the ground that it was not a just equivalent, the principles specified for determination of compensation could also not be challenged on the plea that the compensation determined by the application of those principles was not a just equivalent. The learned Judge observed that this did not, however, mean that something fixed or determined by the application of specilied principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrarics, and permit a device to defeat the constitutional guarantee. Principles could, therefore, be challenged on the ground that they were irrelevant to the determination of compensation, hut not on the ground that what was awarded as a result of the application of those principles was not just or fair compensation.\n\n\n• ( 1) (1969] 3 S.C.lt. 341.\n\nKESAVANANDA v. KERALA ( Chandrachud, J.) 989\n\nIn R. C. Cooµi' v. Union('), (the Bank Nationalisation case), the judgment in Shantilal Mangaldas's case, was in substance overruled by 1 a Bench of II Judges by a majority of 10 to I. The majority referred to 'the meaning of compensation as an equivalent of the property expropriated. It was held that if the statute in providing for compensation devise<l a scheme for payment of compensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of compensation.\n\nThis chain of decisions on the construction of Articles 31 (2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate.\n\nShah J. in Shanti/a/ Mangaldas(') case had observed with reference to the decision in Bela Baner'.ee's case and Subodh Gopal's(') cas~ that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelu's(') case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, 'price', 'consideration', etc. This is what the Parliament has now done partially by substituting the word 'amount' for the word 'compensa~ tion' in the new Article 31 (2).\n\nThe provision in the newly added clause 2B of Article 31 that nothing in A_rticle 19(1)(£) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken. th~ view that Article. ~~(l)(f) and Article 31(2) were mutually exclusive so far as acqms1t10n and requisition were concerned fSee f, or example Gopalan's case, 1950 S.C.R. 88; Chiranjit Lal Choudhury s case, 1950 S.C.R. 869 at 919; Sitabati Devi's case (1967) 2 S.C.R. 949; Shantilal Mangaldas's case, 1969 S.C.R. 341; ad H N Rao' s case, 1969(2) S.C.R. 392;. ·\n\nLearned Counsel appearing for the petitioner mounted a attack on the Twenty-Fifth Amendment, particularly on the.\n\n\n( 8 ) [1954] $.C.R. 587. (') (l9.65J l'S.C.R •. 614, ¢q, 63-16 s:c. India/73\n\nsevere pro vi-\n\n990 SUPREME COURT REPORTS [1973] Supp. s.c.a.\n\nslons of article 31C. He contends that article 31C subverts seven e5scntial features of the Constitution, and destroys ten Fundamental\n\n· Rights, which arc vital for the survival of democracy, llhc rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the counsel are unconnected with property rights. The argument continues that article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the CQnstitution; it subordinates the Fundamenal Rights to Directive Principles of Slllte Policy, destroying thereby one of the foundations of the C'..onstitutlon; it virtually abrogate the \"manner and form\" of amendment laid down in article 368 by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority; that it destroys by conclusiveness of the declaration the salient safeguard of judidal review and\n\nthe right d enforcement of Fundamental Rights; and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates llhc right to equality before the law, which is the basic principle of Republicanism. By enacting article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, article 31 permits the enactment of laws in abrogation af articles 14, 19 nd 31, but what guarantee is there that tomorrow all •.he precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise Clespotism.\n\nHaving , given a most anxious consideration to these arguments, I have come to the conclusion that though article 31C is pregnant with possible mischief, it cannot, by the application of any of the . well. recognised judicial tests be declared unconstitutional.\n\nFor a proper understanding of the provisions of article 31C, one must in the first place appreciate the full meaning and significance of article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State }>olicy. The idea of Directive Principles was taken from Eire, which in turn. had borrowed it from the Constitution of Republican\n\nlUlsAVANANl>A I), IO!MLA (Chandra&hud, J.) 991\n\nSpain. These preceding examples, as said by Sir Ivor Jcncings(' ), arc significant because they came from countries whose peoples arc predominantly Roman Catholic, \"and the Roman Catholics arc provided by their Church not only with a faith but also with a philosophy\".\n\nOn matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his awn party. Articles 38 and 39 of our Constitution arc principally based on article 45 of the Constitution of Eire, which derives iu authority from the Papal Bulls. Article 39 provides by clause (b) that the Stati: shall, in particular, direct its policy tow:.rds securing-\"that the ownership and control of the material resources of the community are so distributed as best to subserve the common good\". Clause ( c) of the article enjoins the State to direct its policy towards securing-\"that the operation of the economic system docs not result in the concentration of wealth and means of production to common detriment.\" Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in article 39(b) and (c).\n\nI have stated in the earlier part of my judgmen~ that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said, The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to \"all its citizens\", Justice-social, econ<llDlic and poli,. tlical-liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the constitution and without them a man's reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country.\n\nWhat is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction docs not bear on their relative importance. An equal right of men anJ women to an adequate means of livelihood the right to obtain humane conditions of work ensuring a decen~ standard of life ad. full enjoyment of leisure; a?d raising the level of health and nulinllon are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV I fed no doubt that the basic object of conferring freedoms on indiid~\n\n( 1) Some Characteristics of the Indian Constitution, 1953, 30-32,\n\n992 SUPREME COURT REPORTS [19731 Supp. s.c.R.\n\nis the ultimate achievement of the ideals se~ out in Part IV.\n\nA circumspect use of the freedoms guaranteed by Part Ill is bound to subserve the common good but voluntary submission to restraints is a philosopher's rlream.\n\nTherefore, article 37 enjoins the State to apply the Directive Principles in 1]1aking laws. The freedom of a few have then to be abridged in order oo ensure the freedom of all.\n\nIt is in this sense that Parts III and IV, as said by Granwil!e Austin(1), together constitute \"the conscience of the Consritution\". The Nation stands to-day at the cross-roads of history and exchanging the timehonoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become \"a mere rope of sand\". If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of tire many an<l then all freedoms will vanish.\n\nIn order, therefore. to preserve their freedom, the privileged few must part with a portion of it.\n\nTurning first to the new article 31(2), the substitution of the neutral expression \"amount\" for \"compensation\" still binds the Legislature to give to the owner a sum of money 111 cash or otherwise. The Legislature may either lay down principles for the determination of the an1ount or may .itself fix the amount. There is, however, intrinsic evidence in article 31 (2) that it does not empower the State to confiscate or expropriate property. Not only does articLe 31(2) not authorise the legislature to fix \"such :11nount as it deems fit\", \"in accordance with such principl<:s as it. considers relevant\", but it enjoins the legislature by express v.ords either to fix an \"atnount\" for being paid to the O\\vncr or to lay down \"principles\" for determining the amount to be paid to him. If it was desired to authorise the legislature to pass cxpropriatory laws under article 31(2), nothing would have been easier\n\n1for the Constituent Body than to provide that the Slate shall have the right to acquire property for a public purpose without payment of any kind or description. The obligation to pay an \"amount\" llocs not connote the power not to pay any amount at all.\n\nThe alternative obligation tu evolve principles for determining the amount also shows that there is no choice not tu pay. The choice open to the Legislature _is that the amount may directly be fixed by ancl under the law itself or alternatively, the law may fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise. \\\n\nThe specific obligation to pay an '1amount\" and in the alternative the use of the word \"principles\" for determination of that amount mus! mean that the amount fixed or determined to be paid cannot be\n\n1. The Indian Constitution-Cornerstone of a Nation, Edn. 1966.\n\nUSAVANANDA v. !W.ALA ( Chandrachud, J.) 993\n\nillusory. If the right to property still finds a place in the Constitution,. you cannot mock at the man and ridicule his right. You cannot tell him: \"I will take your forliUne for a farthing\".\n\nBut this is subject to an important, a very .important, qualification ..\n\nThe amount fixed for being paid to the owner is wholly beyond the pale of a challenge tha~ it is inadequate. The concept of adequacy is directly co-related to the market value of the property and therefore Auch value cannot constitute an e!emem of that challenge. By the same test and for similar reasons, the principles evolved for determining the amount cannot be questioned on tl1e ground that by application of thos, e principles the amount cktermined to be paid is inadequate, in the sense that it bears nQ reasonable relationship with the market value. of the property. Thus. the question whether the amount or the principles are within the permissible constiutional limits .must be. determined without regard to the consideration whether the~ beat a reasonable relationship with the market value of the property. They may not bear a reasonable relationship and yet they may be valid. But to say that an amount does not bear reasonable relationship with the market value is a different thing from saying that it bears no such relationship ai alt, none whatsoever. In the latter case the payment becomes illusory and may come within the ambit of permissible challenge.\n\nft is unnecessary to pursue this matter further because we are really concerned with the constitutionality of the Amendment and not with the validity o~ a law passed under Article 31(2). If and when suc)l a law comes before this Court it may become necessary to consider the matter crosely. As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to th~ court to question a law under Article 31 (2) on the ground that the amount fixed or determined is not adequate, courts would have the Power to question such a law if the amount fixed . thereunder is illusory; if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; if the power of compulsory acquisition or requisition is exercised for a collateral purpose; if the law offends constitutional safeguards other than the one contained in Article 19(!) (f); or, if the law is in the nature .of a fraud on the Constitution. I would only like to add, by way of explanation, that if the fixation of an amount is shown to depend upon prjndples bearing on social good it may not be possible to say that the principles are irrelevant.\n\nAs regards the new Article 31 (2B) I see no substance in the submission of the petitioner thni the exclusion of challenge under Article 19(1) (£) to a law passed under Article 31 (2) is bad as being in\n\n994 su~IU!Mll couaT lll>OJ.n [ 1973] Supp. s.c.tt.\n\nviolation of the principles of natural justice. I have stated earlier that cQ!lstitutional amendments partake of the vitality of the constituti® itself, provided they are within the limits imposed by the constitution.\n\nThe exclusion of a challenge under Article l!l(l)(f) in regard t; o a law passed under Article 31(2) cannot therefore be deemea unconstitutional. Besides, there is no reason to suppose that the legislature will act so arbitrarily as t; o authorise the acquisition or requisitioning oi. property without so much as complying with the rules of natural iustice. Social good does not require that a man be condemned unheard.\n\nArticle 31C presents a gordian knot. King Gordius oi. Phrygia had tied a knot which a11 oracle said would be undone only by the future master of Asia. Alcxa11der the Great, failing to untie the knot, cut it with his sword. Such a quick and summary solutions of knotty problems is, alas, not open to a Judge. The article reads thus :\n\n\"31C. Notwithsta11ding anything contained in article 13, no law giving eJfect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 shall be deemed to be void on the ground that it is inconsistent witih, or takes away or abridgci any of the ights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :\n\nProvided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.''.\n\nA misconception regarding the ambit of this article may first be removed. The article protects pnly \"law\" and not an executive action.\n\nThe term 'law' is used in arricle 13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that definition is limited to the purposes Qf article J.3.\n\nArticle\n\n31C ca11not therefore be said ro violate the provisipns of arti., Je 31(1) under which no person can be deprived of his propeny save by authority of law. It is, however, not to be denied that the word 'law' in article 31C may include all incidents and aspects of law-making.\n\nIn order properly to understand 1!he scope of article 31C, it would be necessary to refer to the history of the allied provisions of the Constitution. Prior to the 4th Constitutional Amendment which came into force cm April 27, 1915, articles 31A and 31B which were introduced by the First Amendment Act, 1951 excluded wholly the\n\nKESAVANANDA v. KERALA (Chandrachud, J.) 995\n\nprovisions of Part III in regard to laws providing for the acquisition of any estate or of any rights therein. The reason of the rule was that the rights of society are paramount and must be placed above those of the individual.\n\nThe language of article 3!C makes it clear that only sue~ laws will receive its protection as are for giving effect to the pohcy of the State towards securing the principles specified in article 39(b) or (c). Under clause (b) the Snate has to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subscrve the common good. Under clause (c)· the State has to take steps towards securing that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment. Apart from the declaration contained in the latter part of article 3!B it seem1 to me transparent that the nexus between a law passed under article 31C and the objective set out in article 39(b) and ( c) is a condition precedent to the applicability of article 31C. The declaration cannot be utilised as a cloak to protect laws bearing no relationship with the objective mentioned in the two clauses of article 39.\n\nThe objectives set out in Part IV of the Constitution were not limited in their application to agrarian reform. The 4th and 17th Amendments extended the basic principle underlying the First Amendment by introducing changes in articles 31 and 31A and the Twenty-Fifth Amendment has taken one step further by extending the principle to a vaster field. Article 31C will operate substantially in the same way as article 3LA has operated in the agrarian sphere.\n\nIn fact article 3!C is a logical extention of the principles underlying article 31 ( 4) and (6) and article 31A.\n\nI find it difficult to accept the argument, so strongly pressed upon us, that article 31 C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complving with the form and manner prescribed by article 368.\n\nI am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of article 31 C is that it identifies a class of legislation and exempts it from the operarfon of articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Arlicles 31 (2) and 31A identified the legislative field with reference to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the ob; ective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like article 3lC, create a field exempt from the operation of some of the Fundamental\n\n996 SUPREME COURT REPORTS [1973] Supp. s.c.R.\n\nRights. The field of legislation is not create.cl by article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an jmmnnity against he operation of the specified Fundamental Rights in . a pre-existing field of legislation.\n\nIn principle, I see no distinc.tion between itttide 31C on the one hand and articles 15(4), 31(4), 31(5)(b)(ii), arid 31 (6) on the other. I may also call attention to article 31A introduced by the First Amendment Act, 1951 under which \"Notwithstanding anything contained in article 13\", no law providing for matters mentioned in clauses (a) to ( e) \"shall be deemed to be void on . the ground that it is inconsistent or takes away or abridges any of the rights conferred by articles 14, 19 or 31. The fact that the five clauses of article 31A referred to the\n\n1 subject-matter of the legislation whereas article 31 C refers to laws in relation to their object does not, in my opinion, make any difference in principle. ·\n\nThe argument that article 31C permits a blatant violation of the form and manner prescribed by article 368 overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in article 368.\n\nBesides, implicit in the right to amend article 368 is the power, by complying with the form and manner of article 368, to authorise any other body to .make the desired amendments to constitutional provisions.\n\nThe leading majority judgment in Golak Nath case and Hidayatullah J. thought of a somewhat similar expedient .in suggesting that a Constituent Assembly could be convoked for abridging the Fundamental Rights. I do not see any distinction in principle between creating an authority like the Constituent Assembly with powers to amend the Constitution and authorising some other nomed authority or authorities to exercise the same power. This a<pect of the matter does not, however, arise for further consideration, because article 31C does not delegate the power to amend.\n\nThe latter part of article 31C presents to me no difficulty: \"no law containing a declaration that it is for giving effect to mch policy shall be called in question in any court on the ground that it does not give effect to such policy.\" Clearly, this do.es .not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the. principles specified in article 39(b) or (c). Laws passed under article. 31C, can, in my opinion, be upheld only, and only if, there is i' direct and reasonable nexus between the law arid' the Directive Policy of the State expressed in article 39(b) or (c). The law cannot be called in questiOn on the ground that it does riot give effect to such policy but I suppose no court can ever take upon itself the task of finding out whet:her a law\n\nUSAVANANDA I/, KEllALA ( Chandrachud, J.) 997\n\nin fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gamblirig should have lost their place on the statute booklong since.\n\nIn my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which introduces article 31C, is valid.\n\nTHE CONSTITUTION (TWENTY-NINTH AMENDMENT)\n\nACT, 1972.\n\nJn regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 of 1971) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the petitioner's counsel that if the provisions of the two Acts do not fall within the terms of 31l)(a), the J\\cts will not get the protection of Article 31B.\n\nThe validity of article 31B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to re-open that question; nor indeed did the learned counsel for the petitioner challenge the validity of that article. In State bf Bihar v. Kameshwar Singh('), a similar contention was considered and rejected by Patan- . jali Sastri C.J., who spoke for the Court. The same view was reiterated in Visweshwar Rao v. The State of Madhya Pradesh(') by Mah\"1jan /. The argument fell to be considered once again in N. B. /eejeebhoy v. Assistant Collector, Thana, Prant, Thana('), but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of article 31B: \"without prejudice to the generality of the provisions contained in article 31A\" only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity even if they did not attract Article 31A. If every Act in the Ninth Schedule has to be covered by article 31A, article 31B would become redundant. Article 31B was, therefore, held not to be governed by article 31A. The Twenty-Ninth Amendment must, accordingly be held to be valid.\n\nDebates of the Constituent Assembly and of the First Provisional Parliament were extensively read out to us during the course of arguments. I read the speeches with interest, but in my opinion, the debates are not admissible as aids. to construction of constitutional provisions. In Gopalan's case('), Kania C.J., following the decisions\n\n( 1) [1952] S.C.R. 88), (') [l952] S.C.R. 1020.\n\n(') [ 19~5] I S.C.R. 636.\n\n\n998 SUPREME COURT REPORTS [1973] Supp. s.c.it.\n\nin The Municipal Council of Sydney v. The Commonwealth(') and\n\nUnited States v. Wong Kim Ark(2), observed that while it is not proper to take into consideration the individual opinions of Members of Parliament to construe the meaning of a particular clause, a reference to the debates may be permitted when a question is raised whether a certain phrase or expression was up for consideration at all or not.\n\nAccording to Mukherjea J. (p. 274), the debates of the Constituent Assembly are of doubtful value as an aid to discover the meaning of the words in a Constitution. .The learned Judge said that a resort can be had to the debates with great caution and only when latent ambiguities are to be resolved. A similar view was expressed by '.his Court in State of Travancore, Cochin and Another v. Bombay Company Limited('). In the Golak Golak Nath case, Sobba Rao C.J. clarified that he had not referred to t!.e speeches made in the Constituent Assembly for the purpose of interpreting the provisions of article 368. Bachawat J. also took the same view.\n\nI It was urged by the learned Advocate-General of Maharashtra that there is a noticeable change in the attitude of this Court to par- liamentary debates since the decision in Gopalan's case and that the most prono11nced trend manifested itself first in Golak Nath's case and then dec'isively in the Privy Purse case('). The practice followed in the Privy Purse case is said to have been adopted both by the majority ancj the minority in Union of India v. H. S. Dillon(').\n\nI am unable to agree that any reliance was placed in the Privy Purse case or in Dillon's case on parliamentary speeches, for the purpose of interpreting the legal provisions.\n\nShah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai Patel in order to show the circumstances in which certain guarantees were given to the former Rulers.\n\nThe Advocate-General is right that Mitter J. made use of a speech for construing article 363, but that was done without discussing the questioo as regards the admis- 1ibility i:i. the speech. In Dillon's case, it is ckar from the judgment of the learned Chief Justice, that no use was made of the speeches in the Constituent Assembly for construing any legal provision. In fact, the learned Chief Justice observed that he was glad to find from the debares that the interpretation which he and two his colleagues had put on the legal provision accorded with what was inrended.\n\n( 1 ) [1904) 1 Com. L.R. 208.\n\n( 2) [169) U.S. 649, 699.\n\n(•) [1952J S.C.R. 113.\n\n(') [1971) 3 S.C.R. 9, 83.\n\n(\") [1971] Z S.C.R., 779, 78•,. 829-30.\n\nKESAVANANDA v. KERALA ( Chandrachud, J.) 999\n\nIt is hazardous to rely upon parliamentary debates as aids to statutory construction. Different speakers have different motives. and the system of 'Party Whip' leaves no warrant for assuming that those who voted but did not speak were of identical persuasion. That assumption may be difficult to make even in regard to those who speak. The safest course is to gather the intention of the legislature from language it uses. Therefore, parliamentary proceedings can be used only for a limited purpose as explained in Gopalan's case.\n\nBefore summarising my conclusions, let me say that it is with the greatest deference and not w; thout hesitation that I have decided to differ from the eminent Judges who constituted the majority in the Golak Nath case. Two of them still adorn this Bench and to them as ro the other learned Brothers of this Bench with whom it has not been possible to agree, I say that it has been no pleasure to differ from them, after being with some of them for a patt of the time, on a part of the case. Their concern for common weal, I guess, is no less than mine and so let me express the hope that this long debate and these long opinions will serve to secure at ieast one blessing-the welfare of the common man. We are all conscious that this vast country has vast problems and it is not easy to realise the dream of the Father of the Nation lP wipe every tear from every eye.\n\nBut, if despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith.\n\nMy conclusions are briefly these :\n\nI. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct.\n\n2. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law\n\namnding the Constitution is incorrect. Article 13(2) took in only ordmary laws, .not amendments to the Constitution effected urlder Article 368. ·\n\n3. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.\n\n1000 SUPBEME COURT BEPORTS ( 1973] Supp. S.C.R.\n\n4. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It rr.ached every part and provision of the Constitution.\n\n5. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368.\n\n6. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.\n\n7. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid.\n\n8. Section 2(a) and section 2(b) of the 25th Amendment arc valid. Though courts have no power to question a law described in Article 31(2) substituted by section 2(a) of the Amendment Act,\n\nOD che ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or\n\n(ii) if the principles, if any are stated, for determining the amount arc wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by section 2(b) of the 25th Amendment Act - namely Article 19(1) (£); or (v) if the law is in the nature of a fraud on the Constitution.\n\n9. Section 3 of the 25th Amendment which intruccd Article\n\nlC into the Constitution is vafid. In spite, however, of the purport ed conclusiveness of the declaration therein mentioned, the Court has the power and the jurisdiction to ascertain whether the law is for giving effect to the policy of the State towards eecuring the principles specified in Article 39(b) or ( c). If there is no direct and reasonable nexus between such a law and the provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive immunity from a challenge under Articles 14, 19 or 31.\n\n10. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having been included in the Ninth Schedule, are entitled to the protection of Article 31B of the Constitution.\n\n1 would direct each party to bear its own costs.\n\nAs I am coming to the close of my judgment, drafts of judgments of several of my esteemed colleagues are trickling in.\n\nAs I look at them, I hear a faint whiser of Lord Dunedin. And then I thought : I began this judgment by saying that I wanted to avoi.d writing a separate judgment of my own. Are first thoughts best?\n\nIN THE SUPREME COURT OF INDIA\n\nORIGINAL JURISDICTION\n\nWRIT PETITIONS Nos. 135(70, 351-352, 373-374 and 400/72\n\nHis Holiness Kesavananda Bharati Sripadagalavaru etc. etc .......... Petitioner\n\nVersus\n\nState of Kerala and another etc. ......... Respondents\n\nThe view by the majority in these writ petitions is as follows :-\n\nl. Golak Nath's case is over-ruled;\n\n2. Art. 368 does not enable Parliament to alter the basic structure or framework of the Constitution;\n\n3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid;\n\n4. Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid';\n\n5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part, namely, \"and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policv\" is invalid; ·\n\n6. The Constitution (Twenty-ninth Amendment) Act 1971 is valid. '\n\nT?e . Constitution ench will determine the validity of the\n\nnstJ!!Ut1on (Twenty-Sixth Amendment) Act, 1971 in accordance With Jaw.\n\nThe cases arc remitted .. to the Constitution Dench for disposal in accordance with law. There will be no order as to costs incurred up to this stage. ·\n\nDotetl April 24,. 1973.\n\nORDER\n\nS. M. Sikri C.J.\n\nJ. M. Shclat J.\n\nK. S. Hegdc J.\n\nA. N. Grover J.\n\nP. han Reddy J.\n\nD. G. Pafekar J.\n\nH. R. Khanna J.\n\nA. K. Mukhcrjca J.\n\nY. V. Chandrachud J.\n\nThe Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in accordance. with law.\n\nThe cases arc remitted to the Constitution Dench for didposai in ; iccordance with law. There will be .no order as tx> costs incurred upto this stage •.\n\nS. M. Sikri C. J.\n\nJ. M. Shclat J. K .. S. Hegdc J.\n\nA. N. Grover J.\n\nA. N. Ray J.\n\nP. Jaganmohan Reddy J.\n\nD. G. Palekar J.\n\nJ:I, R. Khanna J.\n\nK. K. Mathew J.\n\nM. H. Beg J.\n\nS. N. Dwivcdi J.\n\nA. K. Mukherjca J.\n\nY. V. 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